Zinpro Corp.

Trademark Trial and Appeal Board

Apr 29, 2013

No. 85317092 (T.T.A.B. Apr. 29, 2013)

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.

Mailed: April 29, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Zinpro Corp.
________

Serial Nos. 85316592 and 85317092
_______

Edmund J. Sease of McKee Voorhees & Seese PLC for Zinpro
Corp.

Brian Pino, Trademark Examining Attorney, Law Office 114
(K. Margaret Le, Managing Attorney).
_______

Before Cataldo, Adlin and Gorowitz,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, Zinpro Corp., filed applications to
register in standard characters on the Principal Register
the marks shown below:
PROCARE 4
with “4” disclaimed,1 and

1 Application Serial No. 85316592 was filed on May 10, 2011, and
amended to assert July 25, 2011 as the date of first use of the
mark in commerce.

Ser. Nos. 85316592 and 85317092
2
PROCARE ZN
with “ZN” disclaimed,2 both for “loose mineral supplement
packaged product feed nutrient/additive for non-pet
livestock animals such as chickens, llamas, goats and
rabbits” in International Class 5.
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s marks, as used in connection with its goods, so
resemble the mark, PROCARE, previously registered by two
different entities on the Principal Register in typed or
standard characters for
“dietary and nutritional supplements for pets” in
International Class 5;3 and
“veterinary pharmaceutical medicated pet products,
namely, pesticidal flea and tick shampoo; medicated liquid
bandage skin sealer; caloric food supplements; and
deodorizer for pets and for carpet and upholstery” in
International Class 5,4 as to be likely to cause confusion.

2 Application Serial No. 85317092 was filed on May 10, 2011, and
amended to assert July 25, 2011 as the date of first use of the
mark in commerce.

3 Registration No. 1859092 issued to Melaleuca, Inc. on October
18, 1994. Section 8 affidavit accepted; Section 15 affidavit
acknowledged. Renewed.

4 Registration No. 2803220 issued to Professional Pet Products,
Inc. on January 17, 2009. Section 8 affidavit accepted; Section
15 affidavit acknowledged.
Ser. Nos. 85316592 and 85317092
3
When the refusals were made final, applicant appealed.
Applicant and the examining attorney filed briefs on the
issues under appeal.
Proceedings Consolidated
The appeals involve common issues of law and fact.
Further, the records are essentially identical.
Accordingly, we decide both appeals in this single opinion.
See, for example, In re Binion, 93 USPQ2d 1531, 1533 (TTAB
2009). See also TBMP § 1214 (3d ed. 2011) and authorities
cited therein.
Likelihood of Confusion
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). See also In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of
confusion analysis, however, two key considerations are the
similarities between the marks and the similarities between
the goods and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 27 (CCPA
1976). See also In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997).
Ser. Nos. 85316592 and 85317092
4
Registration No. 1859092
For purposes of the du Pont factors that are relevant
to these appeals we will consider applicant’s involved
marks and the mark that is the subject of cited
Registration No. 1859092. If likelihood of confusion is
found as to the mark and goods in this registration, it is
unnecessary to consider the other cited registration
because it too identifies food supplement for pets.5
Conversely, if likelihood of confusion is not found as to
the mark and goods in this registration, we would not find
likelihood of confusion as to the mark and goods in the
other cited registration.
The Goods
Turning to our consideration of the recited goods, we
must determine whether consumers are likely to mistakenly
believe that they emanate from a common source. It is not
necessary that the goods at issue be similar or
competitive, or even that they move in the same channels of
trade, to support a holding of likelihood of confusion. It
is sufficient instead that the respective goods are related
in some manner, and/or that the conditions and activities

5 We observe that the two cited registrations are owned by
different entities. However, we are not privy to the facts
surrounding the registration of these marks, including any
agreements that may exist between the owners thereof.

Ser. Nos. 85316592 and 85317092
5
surrounding the marketing of the goods are such that they
would or could be encountered by the same persons under
circumstances that could give rise to the mistaken belief
that they originate from the same producer. See In re
International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
In ex parte cases, we must compare applicant’s goods
as set forth in its applications with the goods as set
forth in the cited registration. In re Elbaum, 211 USPQ
639, 640 (TTAB 1981). In the present case, applicant’s
goods are identified as “loose mineral supplement packaged
product feed nutrient/additive for non-pet livestock
animals such as chickens, llamas, goats and rabbits,” and
registrant’s goods are identified as “dietary and
nutritional supplements for pets.” We observe initially
that applicant’s goods appear to be related on their face
to those of registrant inasmuch as applicant’s goods are
mineral supplements for livestock animals and registrant’s
goods are dietary and nutritional supplements for animals,
namely pets.
In addition, the examining attorney submitted with his
Office actions copies of approximately 30 use-based, third-
party registrations reciting goods of a similar type to
Ser. Nos. 85316592 and 85317092
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those identified in the involved applications and cited
registration. The following examples are illustrative:
Registration No. 1772770 for “vitamin and mineral
dietary feed supplements for livestock, domestic
pets, and exotic animals”;

Registration No. 2270184 for goods including
“nutritional additives for animal and livestock
feed; feed supplements for livestock and pets”;

Registration No. 2262136 for goods including
“feed for animals, including pets, livestock and
farm animals”; and

Registration No. 2461025 for goods including
“vitamin and mineral livestock feed supplements;
vitamin and mineral feed supplements for animals;
pet food supplements consisting of vitamins,
proteins, and minerals”.

These registrations suggest, in general, that applicant’s
mineral supplements for livestock are related to
registrant’s dietary and nutritional supplements for pets.
See In re Infinity Broadcasting Corp. of Dallas, 60 USPQ2d
1214, 1217-18 (TTAB 2001). Although these registrations
are not evidence that the marks shown therein are in use or
that the public is familiar with them, they nevertheless
have probative value to the extent that they serve to
suggest that the goods listed therein are of a kind which
may emanate from a single source. See, e.g., In re Albert
Trestle & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993);
and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470
at n. 6 (TTAB 1988).
Ser. Nos. 85316592 and 85317092
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The examining attorney also made of record evidence
from commercial internet websites showing that mineral,
dietary and nutritional supplements for livestock and pets
are offered under the same marks by third parties as well
as applicant. These websites include cylex-usa.com,
entirelypets.com, petag.com, americanlivestock.com,
tscpets.com, karbostore.com and healthypets.com. Such
evidence serves to demonstrate that third parties, as well
as applicant, are using a single mark to identify
applicant’s types of goods as well as those of registrant.
Based upon the evidence made of record by the
examining attorney and the nature of the goods themselves,
we find that registrant’s goods are related to those
provided by applicant. The relatedness of the goods is a
factor that weighs in favor of a finding of likelihood of
confusion.
Channels of Trade and Classes of Consumers
Furthermore, it is settled that in making our
determination regarding the relatedness of the parties’
goods, we must look to the goods as identified in the
involved applications and cited registration. See Octocom
Systems, Inc. v. Houston Computers Services Inc., 918 F.2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority
is legion that the question of registrability of an
Ser. Nos. 85316592 and 85317092
8
applicant’s mark must be decided on the basis of the
identification of goods set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which the
sales of goods are directed”). See also Paula Payne
Products v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ
76, 77 (CCPA 1973) (“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the
respective descriptions of goods”).
In this case, there are no restrictions in either
applicant’s or registrant’s recitation of goods as to the
channels of trade in which the goods may be encountered, or
the type or class of customer to which the goods are
marketed. Thus, the goods must be presumed to move in all
normal channels of trade for pet and livestock supplements
and be available to all classes of potential consumers.
See In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). As a
result, even though applicant’s goods specify that they are
for livestock and registrant’s are for pets, there are no
recited restrictions as to the trade channels in which
these goods may move and, indeed, the evidence of record
shows that they move in the same channels of trade.
Ser. Nos. 85316592 and 85317092
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Accordingly, this factor also supports a finding of
likelihood of confusion.
The Marks
We turn to the first du Pont factor, i.e., whether
applicant’s marks and registrant’s mark are similar or
dissimilar when viewed in their entireties in terms of
appearance, sound, connotation and overall commercial
impression. See Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005). The test, under the first du Pont
factor, is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether
the marks are sufficiently similar in terms of their
overall commercial impression that confusion as to the
source of the goods offered under the respective marks is
likely to result.
We discuss the similarity between the marks in
applicant’s involved applications and the cited
registration below. For the reasons discussed infra, we
find in both cases that the similarities between the marks
favor a finding of likelihood of confusion.
Application Serial No. 85316592
Applicant’s mark, PROCARE 4, is highly similar in
appearance and sound to registrant’s mark, PROCARE, in that
Ser. Nos. 85316592 and 85317092
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applicant’s mark wholly incorporates the registered mark.
In cases such as this, a likelihood of confusion has
frequently been found. “When one incorporates the entire
arbitrary mark of another into a composite mark, the
inclusion of a significant, nonsuggestive element will not
necessarily preclude a likelihood of confusion. [Internal
citations omitted]. An inclusion of a merely suggestive or
descriptive element, of course, is of much less
significance in avoiding a likelihood of confusion.” See
The Wella Corp. v. California Concept Corp., 558 F.2d 1019,
194 USPQ 419, 422 (CCPA 1977) (CALIFORNIA CONCEPT and
surfer design is similar to the mark CONCEPT). See also
Coca-Cola Bottling Co. v. Seagram & Sons, Inc., 526 F.2d
556, 188 USPQ 105, 106 (CCPA 1975) (BENGAL LANCER and
Bengal Lancer soldier design is similar to the mark
BENGAL); In re Bissett-Berman Corp., 476 F.2d 640, 177 USPQ
528, 529 (CCPA 1973) (E-CELL is similar to the mark E).
Thus, the importance of applicant’s incorporation of
opposer’s mark depends greatly on the degree of
suggestiveness of that mark as well as elements of the
marks that are not shared.
In this regard, we note that applicant has disclaimed
“4” as merely describing its goods. As a result, the
number 4 possesses comparatively less source identifying
Ser. Nos. 85316592 and 85317092
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significance than the term PROCARE. Applicant argues that
PROCARE is a weak formative as a result of numerous third-
party registrations for marks incorporating the term. In
support of its argument, applicant has made of record
copies of 20 third-party registrations consisting in whole
or in part of the term PROCARE for largely medical and
computer related goods and services in addition to other
goods and services completely unrelated to those at issue
herein. As a result, we do not find such evidence to
support applicant’s contention that PROCARE is a weak mark
or otherwise should be accorded a narrow scope of
protection as applied to the goods recited in the
registration. We observe, nonetheless, that PROCARE
appears to suggest on its face goods that provide a
professional level of care in their formulation or effect.
However, even allowing for any suggestive nature of the
term PROCARE, the fact that applicant has incorporated the
registered mark in its PROCARE 4 mark greatly increases the
level of similarity between them.
In sum, we conclude that applicant's mark and the
registered mark are substantially similar in terms of sound
and appearance. Furthermore, to the extent the term
PROCARE suggests that the goods identified thereby provide
a professional level of care, such connotation is equally
Ser. Nos. 85316592 and 85317092
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likely to be attributed to both applicant’s goods and those
of registrant under their respective PROCARE 4 and PROCARE
marks. As a result, we find that, overall, the marks
convey highly similar commercial impressions. That is to
say, the marks are likely to be viewed as variations of
each other, but pointing to the same source. Accordingly,
this du Pont factor weighs in favor of finding a likelihood
of confusion.
Application Serial No. 85317092
For the reasons discussed above in our consideration
of the similarity of registrant’s mark with the mark in
application Serial No. 85316592, we find that registrant’s
mark, PROCARE, is also highly similar to the mark, PROCARE
ZN, in application Serial No. 85317092.
The wording PROCARE is identical in appearance, sound
and meaning or connotation in both marks. The addition of
the descriptive, disclaimed term “ZN” to applicant’s mark
is not sufficient to create a commercial impression that is
distinct from that engendered by registrant’s mark. In
short, even with the addition of ZN, the similarities
between applicant’s mark and registrant’s mark in
appearance, sound, meaning and commercial impression far
outweigh the differences.
Summary
Ser. Nos. 85316592 and 85317092
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In our determination of the refusal to register, we
have considered all of the arguments and evidence submitted
by applicant and the examining attorney, including any
arguments and evidence not specifically discussed in this
decision. In these cases, the similarity of the goods and
their channels of trade, and the similarities between the
marks, favor a finding of likelihood of confusion. It is
well established that one who adopts a mark similar to the
mark of another for the same or closely related goods or
services does so at his own peril. See J & J Snack Foods
Corp. v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889
(Fed. Cir. 1991); In re Hyper Shoppes (Ohio), Inc., 837
F.2d 463, 6 USPQ2d 1025 (Fed Cir. 1988); and W.R. Grace &
Co. v. Herbert J. Meyer Industries, Inc., 190 USPQ 308
(TTAB 1976).
Decision: The refusal of registration is affirmed in
both cases.