Allmax Nutrition Inc.v.Proccor Pharmaceuticals Inc

Trademark Trial and Appeal Board

May 5, 2020

91241303 (T.T.A.B. May. 5, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 5, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Allmax Nutrition Inc.
v.
Proccor Pharmaceuticals Inc.
_____

Opposition No. 91241303

_____

Sean L. Sweeney and Taylor A. Noonan of
Tredecim LLC for Allmax Nutrition Inc.

Joseph Piper of Granite Trademark Services
for Proccor Pharmaceuticals Inc.
_____
Before Heasley, Lynch, and English, Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:

Proccor Pharmaceuticals Inc. (“Applicant”) seeks registration on the Principal
Register of ISOFLOW in standard characters1 for “Dietary supplements; Dietary and

1 Application Serial No. 87707814 was filed on December 4, 2017 based on alleged use of the
mark in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a).
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nutritional supplements; Dietary and nutritional supplements used for weight loss;
Protein dietary supplements” in International Class 5.
By its Notice of Opposition, Allmax Nutrition Inc. (“Opposer”) opposes registration
of the mark based on alleged priority and likelihood of confusion under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), with Opposer’s registered mark ISOFLEX
in standard characters for “Protein powdered drink mix, protein bars, and protein
drinks used as meal replacements.”2
In its Amended Answer, Applicant denies most of Opposer’s allegations
underlying the claim, but makes certain admissions, including that “[t]he goods
recited in Opposer’s ISOFLEX registration overlap with, and are similar and highly
related to, the goods recited in the ISOFLOW Application.”3
Opposer submitted evidence and a brief. Applicant did not, but the submission of
evidence and briefing is optional for the party in the position of defendant. See
Trademark Rules 2.128(a)(1) & 2.132(b), 37 C.F.R. §§ 2.128(a)(1) & 2.132(b).
I. Evidentiary Record

The record includes the pleadings and pursuant to Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of the opposed application. Opposer also submitted with
its Notice of Opposition a current copy of information from the USPTO TSDR records
showing the current status and title of its pleaded registration, thereby entering it
into the record. See 37 C.F.R. § 2.122(d)(1). Opposer introduced both confidential and

2 Registration No. 3722812 issued April 13, 2007 and has been renewed.
3 1 TTABVUE 5 ¶ 13 (Notice of Opposition); 6 TTABVUE 4 ¶ 13 (Amended Answer).
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public redacted versions of the declaration of its President, Michael Kichuk, with
exhibits.4 In addition, Opposer submitted USPTO records under a Notice of Reliance.5
II. Standing
Opposer must prove standing by showing a real interest in the outcome of the
proceeding and a reasonable basis for believing that it would suffer damage if the
mark is registered. See 15 U.S.C. § 1063; Empresa Cubana Del Tabaco v. Gen. Cigar
Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). Opposer’s pleaded
registration, for which it has proven status and title, establishes its standing. See
Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727-28
(Fed. Cir. 2012); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1844 (Fed. Cir. 2000). Opposer has established the requisite stake in the outcome of
this proceeding because its registration forms the basis of a plausible Section 2(d)
claim. See Lipton Indus. Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185,
189 (CCPA 1982).
III. Priority
Because Opposer has made its registration of record, and Applicant has not
counterclaimed to cancel it, priority is not an issue as to the mark and goods covered
by the registration. See Top Tobacco LP v. N. Atl. Op. Co., 101 USPQ2d 1163, 1169
(TTAB 2011) (citing King Candy, Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400,
82 USPQ 108 (CCPA 1974)); see also Massey Junior Coll., Inc. v. Fashion Inst. of

4 10 & 11 TTABVUE.
5 9 TTABVUE.
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Tech., 492 F.2d 1399, 181 USPQ 272, 275 n.6 (CCPA 1974) (“prior use need not be
shown by an opposer relying on a registered mark unless the applicant counterclaims
for cancellation.”); Itel Corp. v. Ainslie, 8 USPQ2d 1168, 1169 (TTAB 1988) (“because
of the existence of opposer’s valid and subsisting registration, it need not prove prior
use as to the services recited therein”).
IV. Likelihood of Confusion
A determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. DuPont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, hereinafter referred to as “DuPont factors”); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). A likelihood of
confusion analysis often focuses on the similarities between the marks and the
similarities between the goods. 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.”). Opposer bears the burden of proving its
claim of likelihood of confusion by a preponderance of the evidence. Cunningham, 55
USPQ2d at 1848.
A. The Goods, Trade Channels and Classes of Consumers
Our comparison of the goods must be based on the identifications in the
application and registration. See Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v.
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Houston Comput. Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
A finding of likely confusion must be made with respect to at least one item in the
application to establish likely confusion. Tuxedo Monopoly, Inc. v. General Mills Fun
Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Opposer contends that Applicant’s “dietary supplements” and “protein dietary
supplements” encompass Opposer’s “protein powdered drink mix, protein bars, and
protein drinks used as meal replacement,” which are types of protein dietary
supplements. As noted above, Applicant admitted in its Amended Answer that its
identified goods overlap with and are similar and highly related to Opposer’s
identified goods.6
Given the parties’ agreement, and corroborating evidence in the record, we find
that the goods overlap and therefore are legally identical in part. We take judicial
notice of the Food and Drug Administration’s webpage titled “FDA 101: Dietary
Supplements,”7 which states in pertinent part:
The law defines dietary supplements in part as products
taken by mouth that contain a “dietary ingredient.”
Dietary ingredients include vitamins, minerals, amino
acids, and herbs or botanicals, as well as other substances
that can be used to supplement the diet.
Dietary supplements come in many forms, including
tablets, capsules, powders, energy bars, and liquids….
People use dietary supplements for a wide assortment of
reasons. Some seek to compensate for diets, medical

6 6 TTABVUE 4; 1 TTABVUE 5.
7 https://www.fda.gov/consumers/consumer-updates/fda-101-dietary-supplements, accessed
April 30, 2020.
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conditions, or eating habits that limit the intake of
essential vitamins and nutrients.
See In re Nieves & Nieves LLC, 113 USPQ2d 1639, 1642 (TTAB 2015) (taking judicial
notice of U.S. government online publications). This definition supports the finding
that because protein powdered drink mix, protein bars, and protein drinks are taken
by mouth and contain protein, they constitute dietary supplements. The record also
includes numerous photographs of Opposer’s ISOFLEX goods, with labels on the
containers that include the wording “protein supplement.”8 In addition, a review of
Applicant’s ISOFLOW by the Stack3D website refers to it both as a “protein powder”
and a “supplement.”9 Applicant’s broad identification of “protein dietary
supplements” and “dietary supplements” includes all forms of such supplements and
therefore encompasses Opposer’s identified goods. See, e.g., In re Hughes Furniture
Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded
identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified
‘residential and commercial furniture.’”).
Because the goods in the pleaded registration are legally identical in part to
Applicant’s, we presume that they travel through the same channels of trade to the
same classes of purchasers, considerations under the third DuPont factor. See In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board
entitled to rely on this legal presumption in determining likelihood of confusion);
Harry Winston, Inc. and Harry Winston S.A. v. Bruce Winston Gem Corp., 111

8 E.g., 11 TTABVUE 28-30, 53, 65.
9 11 TTABVUE 21-22.
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USPQ2d 1419, 1437 (TTAB 2014) (“Because the parties’ goods are in part identical,
as identified in the application and relevant registrations, we must presume that the
channels of trade and classes of customers are the same.”).
These factors weigh strongly in favor of likely confusion.
B. The Strength of Opposer’s Mark
Before we turn to the similarity of the marks, we consider the strength of
Opposer’s mark, as that will affect the scope of protection to which it is entitled. We
address both the fifth and sixth DuPont factors. Opposer argues that its mark should
be deemed famous under the fifth factor, and that the absence of third-party uses or
registrations of similar marks with similar goods weighs in its favor under the sixth
factor.
The commercial strength of a mark under the fifth DuPont factor rests on the
extent to which “a significant portion of the relevant consuming public . . . recognizes
the mark as a source indicator.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings,
LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (citing Palm Bay Imps.,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1694 (Fed. Cir. 2005)). This factor involves assessing the mark “‘along a
spectrum from very strong to very weak.’” Id. (internal citations omitted). A very
strong mark receives a wider latitude of legal protection in the likelihood of confusion
analysis. See Palm Bay Imps., 73 USPQ2d at 1694 (strong marks “enjoy wide latitude
of legal protection” and are “more attractive as targets for would-be copyists”).
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Commercial strength may be measured indirectly by the volume of sales and
advertising expenditures in connection with the goods sold under the mark, and other
factors such as length of time of use of the mark; widespread critical assessments;
notice by independent sources of the goods identified by the marks; and the general
reputation of the goods. Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63
USPQ2d 1303, 1308 (Fed. Cir. 2002) (recognizing indirect evidence as appropriate
proof of strength); Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043,
1056 (TTAB 2017). Opposer points to several sources of evidence of commercial
strength, some of which evidence is confidential, so we discuss it only in general
terms. Opposer has used its mark in the U.S. for approximately 15 years.10 Opposer’s
confidential evidence shows substantial annual revenue figures for goods sold under
the mark.11 However, the persuasiveness of the evidence is diminished by the lack of
comparative information about the industry, or even Opposer’s market share. See
Bose Corp. v. QSC Audio Prods. 63 USPQ2d at 1309 (“some context in which to place
raw [sales and advertising] statistics is reasonable”). Opposer also has invested a
significant sum in advertising under its mark.12 Although Mr. Kichuk’s declaration
includes “exemplar[s]” of the advertising he states ran in Muscle and Fitness, Flex,
Muscular Development, and Train Fitness, his testimony included no further
specifics as to the size and placement of the ads, when and how many times the ads

10 11 TTABVUE 3.
11 11 TTABVUE 5; 10 TTABVUE (confidential).
12 11 TTABVUE 5; 10 TTABVUE (confidential).
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ran, or the circulations of the publications in which Opposer advertised.13 See Edward
Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1408 (TTAB 2010) (“Finally,
because of the extreme deference that we accord a famous mark in terms of the wide
latitude of legal protection it receives, and the dominant role fame plays in the
likelihood of confusion analysis, it is the duty of the party asserting that its mark is
famous to clearly prove it.”) (citing Leading Jewelers Guild Inc. v. LJOW Holdings
LLC, 82 USPQ2d 1901, 1904 (TTAB 2007)). Mr. Kichuk testified that Opposer
promotes its goods on its website, through “store flyers, trade shows, samples,
promotional items, and retail demonstrations,” but again no additional details or
examples were provided, except for screenshots of Opposer’s website.14 Opposer also
submitted examples of its social media posts relating to ISOFLEX, but they reflect a
modest number of “views,” “comments,” etc., and also suggest that the target audience
includes non-U.S. consumers in Canada.15
Under the sixth DuPont factor, proof of recent consumer exposure to third-party
use of similar marks in connection with similar services may show commercial
weakness of a mark. See Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115
USPQ2d 1671, 1674 (Fed. Cir. 2015). Opposer emphasizes that Applicant introduced
no third-party use and registration evidence, and points to its own search results from
the USPTO’s online records showing only one other mark beginning with the letter

13 11 TTABVUE 4, 67-71.
14 11 TTABVUE 4, 40-64.
15 11 TTABVUE 74, Opposer’s post states, “Happy Birthday Canada! How are you celebrating
today?”
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string “ISOF-” for similar goods in International Class 5.16 Opposer argues that this
mark, ULTRA ISOFLAVONE 100, “is highly dissimilar in appearance from Opposer’s
ISOFLEX mark.”17 Opposer also points to testimony that it has opposed “and
successfully prevented” the registration of ISO-FX, ISOFIX and ISO-PLEX to
preserve the strength of its mark. We note, however, that the testimony consists only
of a single conclusory sentence in Mr. Kichuk’s declaration, without any documentary
support, or any further detail about the proceedings.18
We agree with Opposer that in the absence of third-party use evidence, and given
the evidence regarding the state of the register and Opposer’s enforcement efforts,
the record does not suggest any commercial weakness of the ISOFLEX mark.
Overall, considering the record on the fifth and sixth DuPont factors, we find
Opposer’s ISOFLEX mark to have a modest degree of commercial strength, weighing
in favor of likely confusion. We note that regardless, even if these factors were
neutral, our ultimate ruling on the likelihood of confusion claim would remain the
same.
C. Similarity of the Marks
We compare the marks “in their entireties as to appearance, sound, connotation
and commercial impression.” Palm Bay Imps., 73 USPQ2d at 1691 (quoting DuPont,
177 USPQ at 567). Similarity in any one of the elements of sound, appearance,

16 9 TTABVUE 5-17.
17 16 TTABVUE 22.
18 Kichuk decl. ¶ 15, 11 TTABVUE 4.
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meaning, or commercial impression suffices to support a determination of likelihood
of confusion. See In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014) (“Similarity in
any one of these elements may be sufficient to find the marks confusingly similar.”).
The test assesses not whether the marks can be distinguished in a side-by-side
comparison, but rather whether their overall commercial impressions are so similar
that confusion as to the source of the goods offered under the respective marks is
likely to result. Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom Labs. Inc. v. Lichter, 102 USPQ2d
1546, 1551 (TTAB 2012). The focus is on the recollection of the average purchaser,
who normally retains a general rather than a specific impression of trademarks. See
Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). We also bear in mind that,
given the identical-in-part goods, “the degree of similarity [of the marks] necessary
to support a conclusion of likely confusion declines.” Century 21 Real Estate v. Century
Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992).
We compare Opposer’s ISOFLEX mark to Applicant’s ISOFLOW mark. Both
marks consist of seven letters, and the first five letters are identical. See Presto
Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (first part of
mark is “most likely to be impressed upon the mind of a purchaser and
remembered.”). This commonality creates both a visual resemblance and a phonetic
similarity. The last two letters in each mark differ, changing the appearance and
sound from Opposer’s third syllable “-FLEX,” to Applicant’s third syllable “-FLOW.”
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However, we find that the identical first five letters, forming the identical first two
syllables of each mark, result in the similarities outweighing the differences. Overall,
the marks look and sound similar. See Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728,
156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form,
spelling or sound alone is likely to cause confusion”).
Neither ISOFLEX nor ISOFLOW is a recognized word, and the record includes no
indication that either has a particular connotation. Opposer contends in its Brief that
consumers would view both marks as consisting of three distinct words – I-SO-FLEX
and I-SO-FLOW.19 However, we note that promotional materials for Opposer’s and
Applicant’s goods show that they both promote their goods as featuring “whey protein
isolate”20 or “whey isolate,”21 so we find it more likely that consumers would view the
ISO- portion of each mark as carrying the same suggestive connotation of whey
isolate. The words “flex” and “flow” have different meanings. Nonetheless, overall,
the identical suggestive beginning portion ISO, the shared lettering in the marks and
their similarity in structure contribute to a similar commercial impression. Even
consumers familiar with ISOFLEX who note the difference in the last two letters
likely would assume that Applicant’s ISOFLOW goods are a new variation in
Opposer’s product line, under a slightly varied mark. In re Great Lakes Canning, Inc.,
227 USPQ 483, 485 (TTAB 1985) (“Even those purchasers who are fully aware of the

19 16 TTABVUE 16.
20 11 TTABVUE 43-44.
21 11 TTABVUE 21.
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specific differences between the marks may well believe, because of the similarities
between them, that the two marks are simply variants of one another, used by a
single producer to identify and distinguish companion lines of products.”).
We find the marks sufficiently similar in terms of appearance, sound, and
commercial impression that this DuPont factor weighs in favor of a likelihood of
confusion.
V. Conclusion
Applicant’s identified goods are in part identical to Opposer’s goods, and are
presumed to travel in the same channels of trade to the same classes of customers.
Given this, and the relative commercial strength of Opposer’s mark, we find
Applicant’s ISOFLOW mark sufficiently similar to Opposer’s ISOFLEX mark as to
be likely to cause confusion under Section 2(d).
Decision: The opposition is sustained based on the likelihood of confusion.