This Opinion is Not a
`Precedent of the TTAB
`
`Mailed: March 5, 2015
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____
`
`Trademark Trial and Appeal Board
`_____
`
`In re Rainbow Light Nutritional Systems, Inc.
`_____
`
`Serial No. 85871276
`_____
`
`Anthony Robinson for Rainbow Light Nutritional Systems, Inc.
`
`James Rauen, Trademark Examining Attorney, Law Office 109,
`Dan Vavonese, Managing Attorney.
`_____
`
`
`Before Seeherman, Bergsman and Lykos,
`Administrative Trademark Judges.
`
`
`Opinion by Bergsman, Administrative Trademark Judge:
`Rainbow Light Nutritional Systems, Inc. (“Applicant”) seeks registration on the
`
`Principal Register of the mark EMBRACE PRENATAL 35+ (in standard
`
`characters) for
`
`Vitamins and dietary supplements, namely supplements
`designed for women to support conception, pregnancy and
`nursing, in Class 5.1
`Applicant disclaimed the exclusive right to use the term “Prenatal 35+.”
`
`
`1 Application Serial No. 85871276 was filed on March 8, 2013, based upon Applicant’s
`allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
`Trademark Act.
`
`

`
`Serial No. 85871276
`
`The Trademark Examining Attorney has refused registration of Applicant’s
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`mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the
`
`ground that Applicant’s mark so resembles the registered mark EMBRACE (in
`
`standard characters) for “dietary supplements, namely, weight loss supplements in
`
`capsule form,” in Class 5, as to be likely to cause confusion.2
`
`After the Examining Attorney made the refusal final, Applicant appealed to this
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`Board. We affirm the refusal to register.
`
`I. Evidentiary Issue
`
`Before proceeding to the merits of the refusal, we address an evidentiary matter.
`
`Applicant attached evidence to its main brief. Trademark Rule 2.142(d), 37 CFR §
`
`2.142(d) reads as follows:
`
`The record in the application should be complete prior to
`the filing of an appeal. The Trademark Trial and Appeal
`Board will ordinarily not consider additional evidence
`filed with the Board by the appellant or by the examiner
`after the appeal is filed. After an appeal is filed, if the
`appellant or the examiner desires to introduce additional
`evidence, the appellant or the examiner may request the
`Board to suspend the appeal and to remand the
`application for further examination.
`In his brief, the Trademark Examining Attorney objected to Applicant’s attempt
`
`to introduce evidence with its brief. Despite the objection by the Trademark
`
`Examining Attorney, who cited authority supporting the objection, Applicant also
`
`submitted evidence with its reply brief.
`
`
`2 Registration No. 4123827, issued April 10, 2012.
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`

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`Serial No. 85871276
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`The objection is sustained and the evidence submitted with Applicant’s brief and
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`reply brief will be given no consideration.
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`II. Applicable Law
`
`Our determination under Section 2(d) is based on an analysis of all of the
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`probative facts in evidence that are relevant to the factors bearing on the issue of
`
`likelihood of confusion. 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, two key considerations are the similarities between the marks and the
`
`similarities between the services. See Federated Foods, Inc. v. Fort Howard Paper
`
`Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry
`
`mandated by § 2(d) goes to the cumulative effect of differences in the essential
`
`characteristics of the goods and differences in the marks.”). These factors, and any
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`other relevant du Pont factors in the proceeding now before us, will be considered in
`
`this decision.
`
`A. The similarity or dissimilarity and nature of the goods.
`
`As noted above, Applicant is seeking to register its mark for “vitamins and
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`dietary supplements, namely supplements designed for women to support
`
`conception, pregnancy and nursing” and the description of goods in the cited
`
`registration is “dietary supplements, namely, weight loss supplements in capsule
`
`form.”
`
`
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`

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`Serial No. 85871276
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`In its reply brief, Applicant quoted the Dietary Supplement Health and
`
`Education Act of 1994 for the definition of “dietary supplement.”3
`
`A dietary supplement is a product taken by mouth that
`contains a "dietary ingredient" intended to supplement
`the diet. The "dietary ingredients" in these products may
`include: vitamins, minerals, herbs or other botanicals,
`amino acids, and substances such as enzymes, organ
`tissues, glandulars, and metabolites. Dietary supplements
`can also be extracts or concentrates, and may be found in
`many forms such as tablets, capsules, softgels, gelcaps,
`liquids, or powders. They can also be in other forms, such
`as a bar, but if they are, information on their label must
`not represent the product as a conventional food or a sole
`item of a meal or diet. Whatever their form may be,
`DSHEA places dietary supplements in a special category
`under the general umbrella of "foods," not drugs, and
`requires that every supplement be labeled a dietary
`supplement.
`The issue with respect to the relatedness of the goods is whether dietary
`
`supplements designed for pregnant women are related to dietary supplements
`
`designed as a weight loss supplement.
`
`To prove that dietary supplements designed for pregnant women and dietary
`
`supplements designed as a weight loss supplement are related, the Trademark
`
`Examining Attorney submitted excerpts from websites showing third parties using
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`the same trademark to identify a myriad of dietary supplements, including prenatal
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`supplements and weight loss supplements:4
`
`
`3 Applicant’s Reply Brief, p. 7.
`4 January 7, 2014 Office Action.
`
`
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`

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`Serial No. 85871276
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`1. Nature’s Way Store
`
`(natureswaystore.com) uses
`
`the NATURE’S
`
`WAY●STORE trademark and logo to identify diet and weight loss supplements and
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`prenatal supplements.
`
`2. The VitaFusion trademark is used to identify weight management fiber
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`supplements and prenatal vitamins.
`
`3. The Super Nutrition trademark is used to identify prenatal vitamins, as
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`well as vitamins and supplements designed for, inter alia, “prostate function,”
`
`“digestive aids,” and “all-day energy.”
`
`4. The One-A-Day trademark is used to identify prenatal supplements, as well
`
`as vitamins and supplements designed for, inter alia, “physical energy & mental
`
`alertness,” “heart health,” and “bone and breast health.”
`
`5. The New Chapter trademark is used to identify prenatal vitamins, as well
`
`as vitamins and supplements designed for, inter alia, “prostate function,” “the
`
`wisdom of whole food,” and “anti-inflammatory relief.”
`
`6. The Doctor’s Choice trademark is used to identify prenatal vitamins, as
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`well as vitamins and supplements designed for, inter alia, “healthy aging, digestion,
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`blood sugar, bones and the immune system,” “daily energy, enhanced immunity and
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`balanced nutrition,” and “diabetes.”
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`7. The Nordic Naturals trademark is used to identify prenatal vitamins, as
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`well as vitamins and supplements designed for, inter alia, “memory and mood,”
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`“healthy brain and visual development,” and diet supplement for children.
`
`
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`

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`Serial No. 85871276
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`In addition, Applicant, on its own website, features its Rainbow Light mark for
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`prenatal vitamins and vitamins and supplements designed for, inter alia, “hormone-
`
`balancing,” “brain health,” “digestive support,” “performance energy,” and “nail hair
`
`& skin.”
`
`The evidence shows that two third parties use the same mark to identify dietary
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`supplements designed for weight loss and for pregnant women and that five other
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`third parties, as well as Applicant, use the same trademarks to identify prenatal
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`vitamins and supplements and a wide variety of vitamins and supplements
`
`designed for many other purposes. In determining whether the goods at issue are
`
`similar or dissimilar, as has often been said, goods need not be identical or even
`
`competitive in order to support a finding of likelihood of confusion. Rather, it is
`
`enough that goods are related in some manner or that circumstances surrounding
`
`their marketing are such that they would be likely to be seen by the same persons
`
`under circumstances which could give rise, because of the marks used thereon, to a
`
`mistaken belief that they originate from or are in some way associated with the
`
`same producer or that there is an association between the producers of each parties’
`
`goods. See In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991).
`
`Because the evidence shows that companies sell dietary supplements for a wide
`
`variety of purposes, we find that the goods are related and that consumers
`
`encountering dietary supplements and vitamins designed for different purposes
`
`identified by similar marks will believe that the goods emanate from the same
`
`source. The issue here, of course, is not whether purchasers would confuse the
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`

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`Serial No. 85871276
`
`goods, but rather whether there is a likelihood of confusion as to the source of these
`
`goods. In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984).
`
`B. Established, likely-to-continue channels of trade.
`
`The websites submitted by the Trademark Examining Attorney also show that
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`the same retailers sell both supplements for pregnant women and weight loss
`
`supplements. The
`
`retailers
`
`include Walgreens.com, Walmart, Target,
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`Drugstore.com and Supplement Warehouse. Accordingly, we find that dietary
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`supplements designed for pregnant women and weight loss supplements move in
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`the same channels of trade.
`
`C. The number and nature of similar marks in use on similar goods.
`
`In its December 20, 2013 Response to an Office Action, Applicant submitted
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`copies of two registrations for “Embrace” formative marks for nutritional
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`supplements and one registration for EMBRACE for a vitamin fortified orange
`
`juice, as set forth in the table below, and owned by separate entities.5
`
`
`
`
`
`5 Applicant submitted copies of registrations for “Embrace” marks for goods other than
`vitamins or nutritional supplements. Those registrations have little probative value (e.g.,
`Registration No. 3636498 for the mark EMBRACE for “medical diagnostic strips for use in
`the field of measuring blood glucose, Registration No. 2855948 for the mark EMBRACE for
`“personal lubricant; sexual lubricant,” Registration No. 3254315 for the mark EMBRACE
`for “fungicides for agriculture.,”). See Key Chemicals, Inc. v. Kelite Chemicals Corp., 464
`F.2d 1040, 175 USPQ 99, 101 (CCPA 1972) (“Nor is our conclusion altered by the presence
`in the record of about 40 third-party registrations which embody the word “KEY”. The great
`majority of those registered marks are for goods unrelated to those in issue, and there is no
`evidence that they are in continued use. We, therefore, can give them but little weight in
`the circumstances present here”); In re Thor Tech Inc., 90 USPQ2d 1634, 1639 (TTAB 2009)
`(the third-party registrations are of limited probative value because the goods identified in
`the registrations appear to be in fields which are far removed from the goods at issue).
`
`
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`

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`Serial No. 85871276
`
`Mark
`
`EMBRACE
`
`TO
`ENERGY
`EMBRACE LIFE
`
`EMBRACE THE
`GRAPE
`
`
`Reg. No. Goods
`
`
`3058403
`Vitamin fortified orange juice
`
`
`3414575
`Nutritional supplements, namely, nutritional
`drink mixes for use as a meal replacement,
`nutritional snack bars
`for use as a meal
`replacement
`Nutritional supplements
`
`4122609
`
`The third-party registrations submitted by Applicant do not prove that
`
`“Embrace” is a weak term entitled to only a narrow scope of protection or exclusivity
`
`of use. Absent evidence of actual use, third-party registrations have little probative
`
`value because they are not evidence that the marks are in use on a commercial scale
`
`or that the public has become familiar with them. See Smith Bros. Mfg. Co. v. Stone
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`Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing public is
`
`not aware of registrations reposing in the U.S. Patent and Trademark Office);
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`Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98
`
`USPQ2d 1921, 1934 (TTAB 2011). See also In re Hub Distributing, Inc., 218 USPQ
`
`284, 285 (TTAB 1983) (“third party registrations in this Office, absent evidence of
`
`actual use of the marks subject of the third-party registrations, they are entitled to
`
`little weight on the question of likelihood of confusion.”).
`
`[I]t would be sheer speculation to draw any inferences
`about which, if any of the marks subject of the third party
`[sic] registrations are still in use. Because of this doubt,
`third party [sic] registration evidence proves nothing
`about the impact of the third-party marks on purchasers
`in terms of dilution of the mark
`in question or
`conditioning of the purchasers as to their weakness in
`distinguishing source.
`
`
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`

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`Serial No. 85871276
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`Id.at 286. See also Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d
`
`1542, 1545 (Fed. Cir. 1992) (“As to strength of a mark, however, registration
`
`evidence may not be given any weight”). We certainly cannot conclude, on the basis
`
`of these three registrations, that EMBRACE has a significance for dietary
`
`supplements that would cause consumers to look to other elements of the marks;
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`further, the cited mark is for EMBRACE per se, so that there is no other element by
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`which consumers could distinguish this mark from other EMBRACE marks.
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`In view of the foregoing, we find that the factor of the number and nature of
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`similar marks in use on similar goods is neutral.
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`D. The similarity or dissimilarity of the marks in their entireties in terms of
` appearance, sound, connotation and commercial impression.
`
`
`We turn next to the du Pont likelihood of confusion factor focusing on the
`
`similarity or dissimilarity of the marks in their entireties as to appearance, sound,
`
`connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177
`
`USPQ at 567. In a particular case, “two marks may be found to be confusingly
`
`similar if there are sufficient similarities in terms of sound or visual appearance or
`
`connotation.” Kabushiki Kaisha Hattori Seiko v. Satellite Int’l, Ltd., 29 USPQ2d
`
`1317, 1318 (TTAB 1991, aff’d without opinion, 979 F.2d 216 (Fed. Cir. 1992)
`
`(emphasis in the original; citation omitted). See also Eveready Battery Co. v. Green
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`Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009), citing Krim-Ko Corp. v. The Coca-
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`Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the
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`similarity in either form, spelling or sound alone is likely to cause confusion.”).
`
`
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`Serial No. 85871276
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`In comparing the marks, we are mindful that “[t]he proper test is not a side-by-
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`side comparison of the marks, but instead ‘whether the marks are sufficiently
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`similar in terms of their commercial impression’ such that persons who encounter
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`the marks would be likely to assume a connection between the parties.” Coach
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`Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721
`
`(Fed. Cir. 2012) (citation omitted). See also San Fernando Electric Mfg. Co. v. JFD
`
`Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons
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`Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem.,
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`972 F.2d 1353 (Fed. Cir. June 5, 1992). The proper focus is on the recollection of the
`
`average customer, who retains a general rather than specific impression of the
`
`marks. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago
`
`Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed
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`Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
`
`The mark in the cited registration is EMBRACE. Applicant’s mark is EMBRACE
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`PRENATAL 35+. The word “EMBRACE” is the dominant element of Applicant’s
`
`mark because the term “Prenatal 35+” is descriptive when used in connection with
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`dietary supplements designed for women over 35 to support conception, pregnancy
`
`and nursing.6 It is well-settled that disclaimed, descriptive matter may have less
`
`
`6 In his June 26, 2013 Office Action the Trademark Examining Attorney required that
`Applicant disclaim the term “Prenatal 35+” for the following reasons:
`The term “prenatal” means “existing or occurring before birth.”
`See the attached evidence from the American Heritage
`Dictionary or [sic] the English Language. The term “35+”
`means age 35 and over. Thus, the wording indicates two
`characteristic of the applicant’s goods, namely, the time they
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`

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`Serial No. 85871276
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`significance in likelihood of confusion determinations. See Cunningham v. Laser
`
`Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding
`
`descriptive terms, this court has noted that the ‘descriptive component of a mark
`
`may be given little weight in reaching a conclusion on the likelihood of confusion.’”)
`
`(quoting In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir.
`
`1983)); In re Dixie Rests. Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed.
`
`Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001)
`
`(disclaimed matter is often “less significant in creating the mark’s commercial
`
`impression”).
`
`
`
`While noting that the word EMBRACE is the dominant element of Applicant’s
`
`mark, we are cognizant that the similarity or dissimilarity of the marks is
`
`determined based on the marks in their entireties and that the analysis cannot be
`
`predicated on dissecting the marks into their various components; that is, the
`
`decision must be based on the entire marks, not just part of the marks. See Stone
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`Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,
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`1161 (Fed. Cir. 2014); In re National Data Corp., 224 USPQ at 751. However, there
`
`is nothing improper in stating that, for rational reasons, more or less weight has
`
`been given to a particular feature of a mark, provided the ultimate conclusion rests
`
`on a consideration of the marks in their entireties. In re National Data Corp., 224
`
`USPQ at 751.
`
`
`are designed to be taken, i.e. before birth, and the age of the
`intended users of the applicant’s goods, i.e. those 35 and older.
`
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`Serial No. 85871276
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`The position of the word EMBRACE as the first part of the mark EMBRACE 35+
`
`further reinforces the importance of EMBRACE as the dominant element of the
`
`mark. See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396
`
`F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent
`
`part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark
`
`and the first word to appear on the label); Century 21 Real Estate Corp. v. Century
`
`Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon
`
`encountering the marks, consumers will first notice the identical lead word); Presto
`
`Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is
`
`often the first part of a mark which is most likely to be impressed upon the mind of
`
`a purchaser and remembered”).
`
`Registrant’s mark EMBRACE and the dominant element EMBRACE of
`
`Applicant’s mark EMBRACE PRENATAL 35+ are identical. Because of the
`
`identical word EMBRACE in both marks, consumers may mistakenly believe that
`
`Applicant’s EMBRACE PRENATAL 35+ dietary supplements are part of the
`
`EMBRACE line of dietary supplements, with these particular supplements
`
`designed for women to support conception, pregnancy and nursing.7
`
`In similar circumstances, where the applicant’s mark incorporates a registrant’s
`
`entire mark, the Board and its primary reviewing court have found that the marks
`
`are similar. See The Wella Corp, v. California Concept Corp., 558 F.2d 1019, 194
`
`
`7 Thus, we disagree with Applicant’s argument that the Trademark Examining Attorney
`did not consider the commercial impression created by Applicant’s inclusion of the
`descriptive term “Prenatal 35+.” Applicant’s Brief, pp. 7 and 9.
`
`
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`Serial No. 85871276
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`USPQ 419, 422 (CCPA 1977) (CALIFORNIA CONCEPT and surfer design for men’s
`
`cologne, hair spray, conditioner and shampoo is likely to cause confusion with the
`
`mark CONCEPT for cold permanent wave lotion and neutralizer); Coca-Cola
`
`Bottling Co. of Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526
`
`F.2d 556, 188 USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for
`
`club soda, quinine water and ginger ale is likely to cause confusion with BENGAL
`
`for gin); In re West Point-Pepperell, Inc., 468 F.2d 200, 175 USPQ 558 (CCPA 1972)
`
`(WEST POINT PEPPERELL and griffin design for fabrics is likely to cause
`
`confusion with WEST POINT for woolen piece goods); Johnson Publishing Co. v.
`
`International Development Ltd., 221 USPQ 155, 156 (TTAB 1982) (applicant’s mark
`
`EBONY DRUM for hairdressing and conditioner is likely to cause confusion with
`
`EBONY for cosmetics); In re Cosvetic Laboratories, Inc., 202 USPQ 842 (TTAB
`
`1979) (applicant’s mark HEAD START COSVETIC for vitamins for hair
`
`conditioners and shampoo is likely to cause confusion with HEAD START for men’s
`
`hair lotion and after-shaving lotion).
`
`Applicant argues that the commercial impressions engendered by EMBRACE
`
`and EMBRACE PRENATAL 35+ are different. According to Applicant, EMBRACE
`
`PRENATAL 35+ creates an “image of welcoming a pregnancy over the age of 35”
`
`which is contrasted to EMBRACE which “leaves consumers with the impression of
`
`accepting the challenge to lose weight” or “seeking to ‘lose’ something, weight.”8 We
`
`disagree. Because the word “Embrace” is defined, inter alia, as “to take or receive
`
`
`8 Applicant’s Brief, p. 10.
`
`
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`Serial No. 85871276
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`gladly or eagerly; accept willingly,” or “to avail oneself of,”9 we find that the
`
`commercial impression engendered by both marks is to welcome the benefits
`
`associated with the products. There is nothing in Applicant’s trade dress that
`
`indicates the word “Embrace” in Applicant’s mark EMBRACE PRENATAL 35+ has
`
`any other meaning. See the copy of Applicant’s packaging below:10
`
`
`
`
`9 Dictionary.com derived from THE RANDOM HOUSE DICTIONARY (2015). The Board may
`take judicial notice of dictionary definitions, including online dictionaries that exist in
`printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014);
`Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010).
`10 Applicant’s December 20, 2013 Response to Office Action. We may look to the trade dress
`to determine the commercial impression engendered by Applicant’s mark.
`[T]he trade dress may nevertheless provide evidence of
`whether the word mark projects a confusingly similar
`commercial impression. Applicant's labels support rather than
`negate that of which opposer complains: that SPICE VALLEY
`inherently creates a commercial
`impression which
`is
`confusingly similar to that of SPICE ISLANDS.
`Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 223 USPQ 1281, 1284
`(Fed. Cir. 1984). See also American Rice, Inc. v. H.I.T. Corp., 231 USPQ 793, 796 (TTAB
`1986) (“we may take into account whether the trade dress of packages or labels in the
`application file as specimens, or otherwise in evidence, may demonstrate that the
`trademark projects a confusingly similar commercial impression.”); Northwestern Golf Co.
`v. Acushnet Co., 226 USPQ 240, 244 (TTAB 1985) (“Evidence of the context in which a
`particular mark is used on labels, packaging, etc., or in advertising is probative of the
`significance which the mark is likely to project to purchasers.”).
`
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`Serial No. 85871276
`
`Applicant’s argument that the “[l]ayout, design, color, packaging, and logotype
`
`are important features to consider in determining if the marks are confusingly
`
`similar” is unavailing because Applicant is seeking to register only the words
`
`EMBRACE 35+ in standard characters, and not the trade dress it currently uses. If
`
`a registration were to issue for the applied-for mark, Applicant would be free to use
`
`it with any trade dress. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
`
`USPQ2d 1842, 1847-48 (Fed. Cir. 2000) (because applicant filed to register a typed
`
`drawing of its mark, “it is irrelevant that [applicant] has a particular display for his
`
`mark in commerce, and the Board was correct to ignore those features.”); In re Rexel
`
`Inc., 223 USPQ at 832 (“The fact that applicant's stapler kits bear its house mark
`
`‘REXEL’ as well as the product mark ‘LITTLE GOLIATH’ is not persuasive of a
`
`different result since applicant is seeking to register the mark ‘LITTLE GOLIATH’
`
`alone.”).
`
`In view of the foregoing, we find that Applicant’s mark EMBRACE PRENATAL
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`35+ is similar to the mark in the cited registration EMBRACE in terms of
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`appearance, sound, connotation and commercial impression.
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`E. The conditions under which and buyers to whom sales are made, i.e.,
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`“impulse” vs. careful, sophisticated purchasing.
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`Applicant argues that consumers for dietary supplements will exercise a high
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`degree of care in making their purchasing decision because dietary supplements
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`could “affect consumers’ health.”11 While we have no doubt that consumers will
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`exercise a heightened degree of care purchasing dietary supplements, those same
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`11 Applicant’s Brief, p. 14.
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`Serial No. 85871276
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`consumers may mistake one trademark for another when such marks are as similar
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`as they are here because they are not likely to note the differences in the marks.
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`Hydrotechnic Corp. v. Hydrotech International, Inc., 196 USPQ 387, 392-93 (TTAB
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`1977); Educational Development Corp. v. Educational Dimensions Corp., 183 USPQ
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`492, 496 (TTAB 1974). Even careful purchasers who do notice the difference in the
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`marks will not necessarily conclude that they indicate different sources for the
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`goods, but will see the marks as variations of each other, pointing to a single source.
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`See, e.g., Kangol Ltd. v. Kangaroos U.S.A., Inc., 974 F.2d 161, 23 USPQ2d 1945,
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`1946 (Fed. Cir. 1992) (“What is important is not whether people will necessarily
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`confuse the marks, but whether the marks will be likely to confuse people into
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`believing that the goods they are purchasing emanate from the same source.”)
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`(citations omitted). Accordingly, on the whole we consider this du Pont factor to be
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`neutral.
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`F. Balancing the factors.
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`Because the marks are similar, the goods are related, and the goods move in the
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`same channels of trade, we find that Applicant’s mark EMBRACE PRENATAL 35+
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`for “vitamins and dietary supplements, namely supplements designed for women to
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`support conception, pregnancy and nursing” is likely to cause confusion with the
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`registered mark EMBRACE for “dietary supplements, namely, weight loss
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`supplements in capsule form.”
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`Decision: The refusal to register Applicant’s mark EMBRACE PRENATAL 35+
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`is affirmed.
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