From: Konschak, Carl
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`Sent: 1/5/2022 5:25:00 PM
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`To: TTAB EFiling
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`CC:
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`Subject: U.S. Trademark Application Serial No. 88732121 - PROCELLER8 - N/A - Request for
`Reconsideration Denied - Return to TTAB - Message 1 of 12
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`*************************************************
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`Attachment Information:
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`Count: 11
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`Files: GSK1-1.jpg, GSK1-2.jpg, GSK1-3.jpg, GSK1-4.jpg, GSK1-5.jpg, GSK1-6.jpg, GSK1-7.jpg, GSK2-1.jpg,
`GSK2-2.jpg, GSK2-3.jpg, 88732121.doc
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`Unite d State s Pate nt and Trade mark Office (USPTO)
`Office Action (Official Letter) About Applicant’s Trademark Application
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`U.S. Application Serial No. 88732121
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`Mark: PROCELLER8
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`Correspondence Address:
` KEVIN P. HARTLEY
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` TRUST TREE LEGAL, P.C.
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` 798 BERRY ROAD, #41400
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` NASHVILLE, TN 37204
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`Applicant: Leitgeb, Mark
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`Reference/Docket No. N/A
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`Correspondence Email Address:
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` kevin@trust-tree.com
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`REQUEST FOR RECONSIDERATION
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`AFTER FINAL ACTION
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`DENIED
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`ISSUE DATE: January 05, 2022
`
`
`REQUEST FOR RECONSIDERATION DENIED: Applicant’s request for reconsideration is
`denied. See 37 C.F.R. §2.63(b)(3). The trademark examining attorney has carefully reviewed
`applicant’s request and determined the request did not: (1) raise a new issue, (2) resolve all the
`outstanding issue(s), (3) provide any new or compelling evidence with regard to the outstanding
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`

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`issue(s), or (4) present analysis and arguments that were persuasive or shed new light on the
`outstanding issue(s). TMEP §§715.03(a)(ii)(B), 715.04(a).
`
`
`SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION: The trademark examining attorney issued a final
`Office action on June 23, 2021, which maintained the following refusal: Section 2(d) Refusal – Likelihood
`of Confusion – U.S. Trademark Reg. Nos. 4444012, 4851446, and 4727806. The trademark examining
`attorney notes that U.S. Trademark Reg. No. 4727806 was cancelled on December 10, 2021. Applicant
`filed a request for reconsideration on December 23, 2021.
`
`
`
`Applicant’s request for reconsideration “incorporates its prior [Office action] responses by reference”,
`and thus restates its several arguments concerning the similarity of the marks at issue, and the
`relatedness of the parties’ respective goods. The trademark examining attorney has carefully
`reconsidered applicant’s arguments, and still does not find them persuasive. The applied-for mark
`PROCELLER8 is, as previously noted, highly similar to the registered marks PROCELLERA and PROCELLERA
`HELIX in appearance, sound, and overall commercial impression. The parties’ goods, e.g. dietary and
`nutritional “supplements”, “anti-inflammatories”, “antivirals”, “topical analgesics”, and “preparation[s]
`for the relief of pain for the treatment of wounds and skin disorders”, are also commercially and
`practically related. The previously attached evidence from HealthLine.com, MedicalNewsToday.com,
`BodyBuilding.com, NatureMade.com, NowFoods.com, Bayer.com, FlintstonesVitamins.com, Merriam-
`Webster dictionary, Spine-Health.com, MotherEarthLiving.com, LifeIRL.com, eBay.com, and
`HRSupplements.com, shows that supplements of various kinds, e.g. willow bark and peppermint oil, are
`commonly marketed and/or used as analgesics and pain relievers. The registration in this case uses
`broad wording to describe “analgesics”, “topical analgesics”, and “preparation[s] for the relief of pain
`for the treatment of wounds and skin disorders”, which presumably encompasses all goods
`of those type, including applicant’s narrower “dietary supplements”, “herbal supplements”, “mineral
`supplements”, “nutritional supplements”, “protein supplements”, “vitamin supplements.” See, e.g., In
`re Solid State Design Inc., 125 USPQ2d 1409, 1412-15 (TTAB 2018); Sw. Mgmt., Inc. v. Ocinomled, Ltd.,
`115 USPQ2d 1007, 1025 (TTAB 2015). The same evidence, as well as the newly attached evidence from
`US.Sandoz.com. GSK.com, Caltrate.com, Advil.com, CVS.com, and Walgreens.com shows further that
`“dietary supplements”, “herbal supplements”, “mineral supplements”, “nutritional supplements”,
`“protein supplements”, and “vitamin supplements” are commonly marketed and sold from the same
`sources, under the same brands or marks, as “anti-inflammatories”, “anti-inflammatory…preparations”,
`“analgesics”, “athletes foot preparations”, and “bandages.” See, e.g., In re Davey Prods. Pty Ltd., 92
`USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72
`(TTAB 2009). Optimum Nutrition, for example, markets and sells vitamins, protein supplements, and
`fish oil, all under the Optimum Nutrition brand name. Id. Bayer similarly markets and sells
`multivitamins and the NSAID aspirin, i.e. acetylsalicylic acid, all under the Bayer brand name. Id.
`GlaxoSmithKline likewise markets and sells multivitamins and the topical anti-inflammatory Voltaren, i.e.
`diclofenac, all under the GSK brand name. Id. The newly attached evidence from Pharma.Elsevier.com
`and NBCNews.com, also shows that pharmaceutical companies have made major inroads into the
`dietary and nutritional supplement industry, and that those companies now commonly market and sell
`both types of goods.
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`Applicant’s various supplements are also related to registrant’s goods because they may be used
`together. Goods that are often used together, or otherwise purchased by the same purchasers for the
`same or related purposes, have generally been found to be related such that confusion would be likely if
`they are marketed under the same or similar marks. See In re Martin’s Famous Pastry Shoppe, Inc., 748
`F.2d 1565, 1567, 223 USPQ 1289, 1290 (Fed. Cir. 1984) (holding bread and cheese to be related because
`they are often used in combination and noting that “[s]uch complementary use has long been
`recognized as a relevant consideration in determining a likelihood of confusion”); In re Toshiba Med. Sys.
`Corp., 91 USPQ2d 1266, 1272 (TTAB 2009) (holding medical MRI diagnostic apparatus and medical
`ultrasound devices to be related, based in part on the fact that such goods have complementary
`purposes because they may be used by the same medical personnel on the same patients to treat the
`same disease). The newly attached evidence from Cancer.gov, NIH.gov, HealthInAging.org, and
`Health.KaiserPermanente.org shows that both pharmaceutical and non-pharmaceutical preparations are
`commonly used together as “complementary” medical treatments. A patient suffering from arthritis
`might, for example, use both a topical anti-inflammatory and a dietary supplement, e.g. glucosamine, to
`treat their symptoms.
`
`
`
`Third-party trademark registrations also show that applicant’s supplements are related to registrant’s
`various goods, e.g. “anti-inflammatories” and “anti-inflammatory…preparations.” Active third-party
`trademark registrations are probative evidence suggesting that the goods in those registrations are “of a
`kind that may emanate from a single source.” See In re I-Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018)
`(citing In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons
`Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6
`(TTAB 1988)); TMEP §1207.01(d)(iii). The previously attached copies of fifteen third-party trademark
`registrations, registered for use in connection with supplements, anti-inflammatories, and medical
`goods like “bandages”, suggest that parties’ good commonly emanate from a same sources, under the
`same brands or marks. Id.
`
`
`
`Applicant also argues in its request for reconsideration that consumer confusion is unlikely in this case,
`because there has allegedly “not been any instances of confusion between Applicant’s mark and the
`Cited Marks despite almost two years of simultaneous use.” Applicant’s argument is, however, not
`persuasive. Applicant—a single individual—cannot credibly claim to possess firsthand knowledge that
`there “have not been any instances of confusion between Applicant’s mark and the Cited Marks”, nor
`has applicant adduced any evidence tending to support that claim. Applicant also has not established,
`by evidence or otherwise, that the applied-for mark has ever been used in commerce, let alone used for
`“almost two years.” Applicant’s claim that there “have not been any instances of confusion between
`Applicant’s mark and the Cited Marks”, even if accepted arguendo, also would not obviate the likelihood
`of confusion in this case, as a “showing of actual confusion is not necessary to establish a likelihood of
`confusion.” In re i.am.symbolic, llc, 866 F.3d 1315, 1322, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017)
`(quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir.
`2002)); TMEP §1207.01(d)(ii). “[T]he relevant test is likelihood of confusion, not actual confusion.” In re
`Detroit Athletic Co., 903 F.3d 1297, 1309, 128 USPQ2d 1047, 1053 (Fed. Cir. 2018) (emphasis in original).
`
`

`

`“Uncorroborated statements of no known instances of actual confusion . . . are of little evidentiary
`value”, moreover, especially during ex parte examination. In re Majestic Distilling Co., 315 F.3d 1311,
`1317, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003).
`
`
`
`Accordingly, the following refusal made final in the Office action dated June 23, 2021 is maintained and
`continued:
`
`
`
`
`
`• Section 2(d) Refusal – Likelihood of Confusion – U.S. Trademark Reg. Nos. 4444012 and
`4851446
`
`See TMEP §§715.03(a)(ii)(B), 715.04(a).
`
`
`
`In addition, the following refusal made final in that Office action has been obviated, as the relevant prior
`registration has been cancelled:
`
`
`
`
`
`
`
`• Section 2(d) Refusal – Likelihood of Confusion – U.S. Trademark Reg. No. 4727806
`
`See TMEP §§715.03(a)(ii)(B), 715.04(a).
`
`
`
`If applicant has already filed an appeal with the Trademark Trial and Appeal Board, the Board will be
`notified to resume the appeal. See TMEP §715.04(a).
`
`
`
`If applicant has not filed an appeal and time remains in the six-month response period, applicant has the
`remainder of that time to (1) file another request for reconsideration that complies with and/or
`overcomes any outstanding final requirement(s) and/or refusal(s), and/or (2) file a notice of appeal to
`the Board. TMEP §715.03(a)(ii)(B). Filing a request for reconsideration does not stay or extend the time
`for filing an appeal. 37 C.F.R. §2.63(b)(3); see TMEP §715.03(c).
`
`
`
`
`
`/Carl A. Konschak/
`
`Carl A. Konschak, Esq.
`
`Examining Attorney
`
`

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`Law Office 126
`
`(571) 270-3878
`
`carl.konschak@uspto.gov
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`

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`With a portfolio of products to relieve pain and
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`recommendedbrandin the US.
`supplements through Emergen-G,the number one pnarmacist
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`Weservea hugeglobal market with our
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`Adults
`mineral products contain up to 26 essential
`
`Vitamins,MineralsandSupplements
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`Centrum
`Feed yourcells. No matter how hard wetry,
`it’s tough to get enoughnutrient-rich foods
`in ourdailydiets. That’s why Centrumis so
`important. Centrum multivitamin and
`nutrients to help children and adults meet
`their diverse nutritional needs. Centrum
`
`,he
`
`MultiGummies’
`
`formulations that support energy,
`immunity and metabolism,as well as eye,
`heart, bone andbrain health.
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`also offers a wide variety of specialty
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`TOODVorworeotVita:
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`Marketavailability:
`Today Centrumis the #1 multivitamin brand in the world and taken by
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`Select market
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`The story of Centrum beganin the 1950s. A young scientist named Leon Ellenbogen
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`patients, In the 1970s, Dr. Ellenbogen and his team used this research to create a
`multivitamin and mineral supplementto address fundamentalnutritional needs.
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`The result was Centrum,an innovation that’s been marketed to consumers and sold over
`the counter for more than 40 years.
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`Today's Centrum products arestill crafted to reflect the most compelling and up-to-date
`scientific research. Centrum wasthefirst major brand to add keynutrients like beta-
`carotene (1988), lutein (1999) and lycopene (2003). Centrum Silver (1990) and Centrum
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`Gender(2011) targeted the unique nutritional needs for people over 50, men and women.
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`#1 multivitamin brand
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