United States: TTABlog Test: Are supplements and cosmetics related to the purposes of section 2 (d)?
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The USPTO refused to register the proposed trademark
NOW for “Food supplements and food supplements to promote nutrition and health, excluding tablets and powdered mixes used to make beverages or sodas and
excluding formulations for the enhancement of beauty“(emphasis provided), deeming confusion with the NUNC trademark in slightly stylized form likely, for” Cosmetics and cosmetic preparations; aromatic oils; preparations for perfuming the air; fragrances and perfumery; skin soap; toothpaste. “There was no doubt that the brands were confusingly similar, but what about the products? Are they related? How do you think that came of it? In re Your Gummy Vitamins LLCSerial number 90007282 (March 17, 2022) [not precedential] (Opinion of Judge George C. Pologeorgis).
Investigative attorney Khanh M. Le relied on “Internet evidence from approximately eleven online retailer websites showing that a single entity commonly promotes and supplies the applicant’s and registrant’s products under the same brand”. The applicant Your Gummy claimed that its identified products are sufficiently narrow and diverse to avoid confusion, indicating its exclusion of beauty formulations from the scope of its food and dietary supplements.
The applicant’s argument is in vain. *** [T]The respective products of the parties need not be identical to identify a likelihood of confusion. On the contrary, they only need to be related in some way that, if offered under similar brands, they may give rise to the mistaken belief that they come from the same source. The documentation before us sufficiently demonstrates that the applicant’s and registrant’s products are of the type offered by a single entity under the same brand.
Your Gummy then claimed that the goods in the cited registration are not sold in the United States, but it was an inadmissible collateral attack on the cited registration. He stressed that “a challenge of abandonment or non-use would be appropriate in an annulment proceeding, but it is not appropriate or admissible in this ex parte proceeding”.
Your Gummy also said that the commercial channels are different because the registrant is a Japanese company whose business focuses on education, aged care services and beauty salons, but only in Japan. The Council was not impressed. “[B]As there are no limitations or restrictions in the commercial channels or classes of purchasers of the identification of the Applicant’s or Registrant’s goods, we must assume that the respective goods of the parties are traded in all normal commercial channels for such goods and in all normal classes. of buyers for those goods, regardless of what any extrinsic evidence might show as the actual business channels and buyers for the goods. “
And so the College affirmed the refusal.
The TTAB register
The content of this article is intended to provide general guidance on the subject. A specialist’s opinion on the specific circumstances should be sought.
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