Amaranth Prime, LLC

Trademark Trial and Appeal Board

Apr 23, 2021

88537442 (T.T.A.B. Apr. 23, 2021)

Mailed: April 23, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Amaranth Prime, LLC
————
Serial No. 88537442
————
Colin P. Abrahams of the Law Office of Colin P. Abrahams,
for Amaranth Prime, LLC.

Paula Ha, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
————
Before Wolfson, Pologeorgis, and Lebow,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Amaranth Prime, LLC (“Applicant”) seeks registration on the Principal Register
of the standard character mark JUST BLOOM for “Dietary and nutritional
supplements; Food supplements; Protein dietary supplements; Dietary food
supplements” in International Class 5.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of

1 Application Serial No. 88537442, filed on July 25, 2019, based on an allegation of use in
commerce under Section 1(a) of the Trademark Act, 15. U.S.C. 1051(a), claiming September
13, 2018 as both the date of first use and the date of first use in commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 88537442
2
likelihood of confusion with the standard character mark JUST BLOOM! registered
on the Principal Register for services including “providing on-line information, news
and commentary in the field of health and wellness relating to physical and mental
wellbeing” in International Class 44.2
When the refusal was made final, Applicant appealed and requested
reconsideration. When the request for reconsideration was denied, this appeal
resumed. Both Applicant and the Examining Attorney filed briefs. For the reasons
explained below, we affirm the refusal.3
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all 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) (“DuPont”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont factor for
which there is evidence and argument of record. See In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned

2 Registration No. 5733226, issued on April 23, 2019. The registration identifies other
services, namely, “Floral design services; Flower arranging; Plant care services; Garden
design, installation and maintenance of interior botanical displays, streetscape container
plantings and rooftop gardens for others” and “Providing on-line information, news and
commentary in the field of health and wellness relating to connecting human beings with
nature; Providing on-line information, news and commentary in the field of health and
wellness relating to yoga, dance, and meditation; Rental of flower arrangements; Rental of
potted plants.” These services, however, do not form the basis of the Examining Attorney’s
Section 2(d) refusal and, thus, are not relevant to this appeal.
3 The TTABVUE and Trademark Status & Document Retrieval (“TSDR”) citations refer to
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .pdf version of the documents.
Serial No. 88537442
3
to each DuPont factor depending on the evidence presented. See Citigroup Inc. v.
Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011);
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he
various evidentiary factors may play more or less weighty roles in any particular
determination.”).
In any likelihood of confusion analysis, however, two key considerations are the
similarities between the marks and the similarities between the goods or services.
See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
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 [or services] and
differences in the marks.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123
USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers
all DuPont factors for which there is record evidence but ‘may focus … on dispositive
factors, such as similarity of the marks and relatedness of the goods [or services].’”)
(quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375,
1380 (Fed. Cir. 2002)).
A. Similarity of the Marks
We first consider the similarity or dissimilarity of the marks in their entireties
as to appearance, sound, connotation and commercial impression. See Palm Bay
Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 369 F.3d 1369, 73
USPQ2d 1689, 1691 (Fed. Cir. 2005). “Similarity in any one of these elements may be
sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126
Serial No. 88537442
4
USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812
(TTAB 2014), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019)).
“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” In re i.am.symbolic, LLC, 123 USPQ2d at 1748 (quoting Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012) (internal quotation marks omitted)). The focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific impression
of trademarks. See Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470
(TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016); Sealed
Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, the decision must be based on a comparison of the entire marks,
not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751
(Fed. Cir. 1985). See also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212
USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected
and considered piecemeal; rather, it must be considered as a whole in determining
likelihood of confusion.”). However, “in articulating reasons for reaching a conclusion
on the issue of confusion, 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
Serial No. 88537442
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the ultimate conclusion rests on consideration of the marks in their entireties.” In re
Nat’l Data, 224 USPQ at 751.
Applicant’s mark JUST BLOOM is wholly incorporated in Registrant’s mark
JUST BLOOM!. The marks only differ by the addition of an exclamation point at the
end of Registrant’s mark. Likelihood of confusion has frequently been found where
one mark incorporates the entirety of another mark. See, e.g., In re Mighty Leaf Tea,
601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (finding ML and MARK LEES
and design, both for personal care products, confusingly similar); In re Max Capital
Group Ltd., 93 USPQ2d 1243, 1247-48 (TTAB 2010) (finding MAX and a column
design confusingly similar to registered mark MAX); In re Toshiba Med. Sys. Corp.,
91 USPQ2d 1266, 1271 (TTAB 2009) (finding VANTAGE TITAN confusingly similar
to registered mark TITAN); In re South Bend Toy Manufacturing Company, Inc., 218
USPQ 479, 480 (TTAB 1983) (finding LIL’ LADY BUG for toy doll carriages and
LITTLE LADY for doll clothing confusingly similar).
Despite the inclusion of an exclamation point at the end of the cited mark,
Applicant’s mark and Registrant’s mark are identical in sound and virtually identical
in appearance. Moreover, in general, punctuation is not sufficient to alter the
connotation and overall commercial impression of marks and, as such, is not
sufficient to distinguish marks. See In re St. Helena Hospital, 774 F.3d 747, 113
SUPQ2d 1082, 1085 (Fed. Cir. 2014) (TAKETEN and TAKE 10! engender similar
commercial impressions despite addition of exclamation point); Bond v. Taylor, 119
USPQ2d 1049 (TTAB 2016) (BLACK MEN ROCK confusingly similar to BLACK
Serial No. 88537442
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GIRLS ROCK!); cf. Mag Instrument Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1712
(TTAB 2010) (hyphen does not distinguish MAG-NUM from MAGNUM), aff’d mem.,
___ Fed. App’x ___, 2011 WL 5400095 (Fed. Cir. 2011); In re Promo Ink, 78 USPQ2d
1301, 1305 (TTAB 2006) (finding proposed mark merely descriptive Board stated
punctuation mark in PARTY AT A DISCOUNT! does not significantly change the
commercial impression of the mark); In re Burlington Indus., Inc., 196 USPQ 718,
719 (TTAB 1979) (“[A]n exclamation point does not serve to identify the source of the
goods.”).
In terms of appearance, sound, connotation, and commercial impression, we find
the marks, when considered in their entireties, are virtually identical.4 In view
thereof, the similarity of the marks strongly favors a finding of a likelihood of
confusion.
B. Relatedness of Applicant’s Goods and Registrant’s Services
We next compare Applicant’s goods and Registrant’s services at issue, namely,
“providing on-line information, news and commentary in the field of health and
wellness relating to physical and mental wellbeing,” under the second DuPont factor.
In making our determination regarding the relatedness of the goods and services, we
must look to the goods as identified in Applicant’s application and the services listed
in the cited registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc.

4 Applicant acknowledges that its mark is very similar to that in the cited registration,
differing only by the presence of an exclamation point appearing after the wording JUST
BLOOM in the cited mark. See Applicant’s Appeal Brief, p. 3, 7 TTABVUE 4.
Serial No. 88537442
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v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)
(“The authority is legion that the question of registrability of an 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 In re Giovanni Food Co., 97 USPQ2d 1990, 1991
(TTAB 2011).
It is sufficient that the respective goods and services are related in some manner,
or that the conditions and activities surrounding the marketing of the goods and
services are such that they would or could be encountered by the same persons under
circumstances that could, because of the similarity of the marks, give rise to the
mistaken belief that they originate from the same source. See Coach Servs., 101
USPQ2d at 1722 (internal citation omitted); Hilson Research, Inc. v. Soc’y for Human
Res. Mgmt., 27 USPQ2d 1423, 1432 (TTAB 1993). The issue here, of course, is not
whether consumers would confuse Applicant’s goods with Registrant’s services, but
rather whether there is a likelihood of confusion as to the source of these goods and
services. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel
Inc., 223 USPQ 830, 831 (TTAB 1984). Moreover, registration must be refused if
Applicant’s mark for any of its identified goods is likely to cause confusion with the
Registrant’s mark for any of its identified services. See SquirtCo v. Tomy Corp., 697
F.2d 1038, 216 USPQ 937, 938-39 (Fed. Cir. 1983) (holding that a single good from
among several may sustain a finding of likelihood of confusion); Tuxedo Monopoly,
Serial No. 88537442
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Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)
(likelihood of confusion must be found if there is likely to be confusion with respect to
any item that comes within the identification of goods or services in the application).
Applicant’s goods are “Dietary and nutritional supplements; Food supplements;
Protein dietary supplements; Dietary food supplements.” Registrant’s services are
“Providing on-line information, news and commentary in the field of health and
wellness relating to physical and mental wellbeing.”
In support of her argument that Applicant’s goods and Registrant’s services are
related, the Examining Attorney submitted Internet evidence demonstrating that a
single entity commonly provides Applicant’s goods and Registrant’s online
information services in the fields of health and wellness under the same mark.5 A
representative sample is set forth below:
ï‚· NATURE MADE - showing the mark used for dietary, nutritional
and/or food supplements and a website providing information, news,
and/or commentary in the field of health and wellness relating to
physical and mental wellbeing, such as when is the best time to take
vitamins;
ï‚· NOW - showing the mark used for dietary, nutritional and/or food
supplements and a website providing information, news, and/or
commentary in the field of health and wellness relating to physical

5 September 18, 2019 Office Action, TSDR pp. 8-13; March 23, 2020 Final Office Action, TSDR
pp. 6-26; and October 9, 2020 Denial of Request for Reconsideration, TSDR pp. 6-10.
Serial No. 88537442
9
and mental wellbeing, such as information about managing glucose
and the Mediterranean diet;
ï‚· THE VITAMIN SHOPPE - showing the mark used for dietary,
nutritional and/or food supplements and a website providing
information, news, and/or commentary in the field of health and
wellness relating to physical and mental wellbeing, such as
information about powerlifting, sports nutrition, and the importance
of protein in connection with aging;
ï‚· DAVINCI - showing the mark used for dietary, nutritional and/or
food supplements and a website providing information, news, and/or
commentary in the field of health and wellness relating to physical
and mental wellbeing, such as information about brain health and
adrenal fatigue, diet meal planning, taking supplements, and the
benefits of sleep;
ï‚· HERBALIFE - showing the mark used for dietary, nutritional
and/or food supplements and a website providing information, news,
and/or commentary in the field of health and wellness relating to
physical and mental wellbeing, such as information about fitness,
healthy skin, and nutrition;
ï‚· JARROW - showing the mark used for dietary, nutritional and/or
food supplements and a website providing information, news, and/or
commentary in the field of health and wellness relating to physical
Serial No. 88537442
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and mental wellbeing, such as information about supplements and
their effect on positive mood, metabolism, and brain function;
ï‚· SWANSON - showing the mark used for dietary, nutritional and/or
food supplements and a website providing information, news, and/or
commentary in the field of health and wellness relating to physical
and mental wellbeing, such as information about health tips for
changing seasons, nutrition; and
ï‚· USANA - showing the mark used for dietary, nutritional and/or food
supplements and a website providing information, news, and/or
commentary in the field of health and wellness relating to physical
and mental wellbeing, such as information about health advice for
busy lifestyles.
This evidence supports a finding that Applicant’s goods and Registrant’s online
information services in the fields of health and wellness are goods and services that
commonly emanate from a single source. See, e.g., In re C.H. Hanson Co., 116
USPQ2d 1351, 1355-56 (TTAB 2015) (relatedness found where Internet evidence
demonstrated goods commonly emanated from the same source under a single mark);
Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004
(Fed. Cir. 2002) (evidence that “a single company sells the goods and services of both
parties, if presented, is relevant to the relatedness analysis”).
The Examining Attorney also submitted thirty-three use-based registrations
covering Applicant’s goods and Registrant’s online health and wellness information
Serial No. 88537442
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services.6 Third-party registrations are not evidence that the registered marks are in
use or that the public is familiar with them, but they have some probative value to
the extent they serve to suggest that the goods and services listed in the registrations
are of a kind that may emanate from a single source. See, e.g., 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 Aquamar, 115 USPQ2d 1122, 1126 n.5 (TTAB
2015); 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).
The Examining Attorney also submitted Internet evidence from MatchaBlog,
Wellness Creative Co., SMP Supplement Manufacturing Partner, and Witty Kitty
that demonstrates that health supplement providers are commonly encouraged by
marketing professionals to provide web content, such as information about health
and wellness, as a way to help market their supplements.7
Applicant argues that the Examining Attorney improperly concluded its goods
and Registrant’s online information services in the fields of health and wellness are
related. The crux of Applicant’s argument is that in considering Registrant’s
identification of “providing on-line information, news and commentary in the field of
health and wellness relating to physical and mental wellbeing,” the other services
identified in the cited registration should somehow restrict the plain language

6 September 18, 2019 Office Action, TSDR pp. 14-28; March 23, 2020 Final Office Action,
TSDR pp. 27-71; and October 9, 2020 Denial of Request for Reconsideration, TSDR pp. 38-
76.
7 October 9, 2020 Denial of Request for Reconsideration, TSDR pp. 11-37.
Serial No. 88537442
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reading of the identification.8 Specifically, Applicant argues that this identification
should be restricted to topics relating to floral design, floral arrangement, plant care,
garden design, nature, flowers, plants and the like.9
Applicant’s argument is unavailing. The wording “providing on-line information,
news and commentary in the field of health and wellness relating to physical and
mental wellbeing” recited in the cited registration is not affected by the other
categories of services within the class. Because a semicolon separates the several
clauses in Registrant’s recitation, its “providing on-line information, news and
commentary in the field of health and wellness relating to physical and mental
wellbeing” is a discrete category of services that stands alone and independently as a
basis for a likelihood of confusion analysis, and is not connected to nor dependent on
the services set out on the other sides of any of the semicolons in the recitation. See
In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1166-67 (TTAB 2013)
(finding the registrant’s “restaurant and bar services” were not to be read “in pari
materia with, or to be limited by, the other wording in the identification of’
services….”) (citing In re Thor Tech Inc., 90 USPQ2d 1634 (TTAB 2009).
Applicant also argues that Registrant’s online information services do not
specifically refer to or identify online information services concerning dietary
supplements per se.10 This argument is similarly unpersuasive. Registrant’s

8 Applicant’s Appeal Brief, pp. 5-7; 7 TTABVUE 6-8.
9 Id.
10 Id.
Serial No. 88537442
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“providing on-line information, news and commentary in the field of health and
wellness relating to physical and mental wellbeing” is broadly worded and
presumably encompasses all services of the type described, including information
about health and wellness relating to physical and mental wellbeing as may be
derived from consumption of food and dietary 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).
As previously noted, registration must be refused if Applicant’s mark for any of
its identified goods is likely to cause confusion with the Registrant’s mark for any of
its identified services. Based on the record before us, we find that Applicant’s dietary
supplement goods are related to Registrant’s provision of online information,
commentary, and news in the fields of health and wellness, in that consumers may
mistakenly believe that they emanate from the same source under the same mark.
Accordingly, the second DuPont factor also favors a finding of a likelihood of
confusion.
C. Similarity of Trade Channels and Classes of Purchasers
Next we consider established, likely-to-continue channels of trade, the third
DuPont factor. Applicant argues that its goods and Registrant’s services differ in
regard to channels of trade, manner of advertising, and classes of prospective
purchasers. Specifically, Applicant maintains that its dietary supplements would be
sold in food stores, sports stores, or other outlets involved in the sale of homeopathic,
dietary, nutritional and related products, whereas Registrant’s services are provided
Serial No. 88537442
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online.11 With regard to classes of purchasers, Applicant argues that purchasers of
its goods, namely, dietary and food supplements, “would be people who are interested
in modulating diet and dietary intake, sports people supplementing essentials such
as vitamins and amino acids, and others who may for various reasons feel it beneficial
to generally raise their diet supplement intake.”12 In contrast, Applicant speculates,
Registrant’s services would be “directed toward individuals or entities acquiring or
making floral designs and arrangements such as event organizers, and people who
may be surfing the web to obtain information relating to connecting with nature,
meditation, dance or yoga.”13
We are not persuaded by Applicant’s arguments. As noted above, the likelihood of
confusion analysis is based on the description of the goods and services stated in the
application and registration at issue, not on extrinsic evidence of actual use. See In
re Detroit Athletic Co., 903 F.3d at 1307, 128 USPQ2d at 1052 (citing In re
i.am.symbolic, llc, 123 USPQ2d at 1749). Here, neither the application nor the cited
registration contains any restrictions (other than Registrant’s information services
being provided online) on channels of trade, manner of advertising, or classes of
prospective purchasers. Therefore, it must be assumed that Applicant’s goods are sold
and marketed everywhere that is normal for such items, including online where
Registrant is providing its information services. See Coach Servs., 101 USPQ2d at

11 Id. at p. 7; 7 TTABVUE 8.
12 Id. at p. 8; 7 TTABVUE 9.
13 Id. at p. 9; 7 TTABVUE 10.
Serial No. 88537442
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1723 (absent limitation, “goods are presumed to travel in all normal channels ... for
the relevant goods.”); Canadian Imperial Bank of Commerce v. Wells Fargo Bank, 811
F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987); Toys “R” Us, Inc. v. Lamps R Us,
219 USPQ 340, 343 (TTAB 1983).
Here, the evidence of record demonstrates that Applicant’s goods and Registrant’s
services are both sold or provided online, by the same entities, to the same classes of
purchasers. Thus, at a minimum, Applicant’s goods and Registrant’s online
information services in the field of health and wellness travel in overlapping trade
channels and are offered to the same or overlapping consumers, i.e., customers
interested in health and wellness. Accordingly, the third DuPont factor also weighs
in favor of finding a likelihood of confusion.
II. Conclusion
We have considered all of the arguments and evidence of record and have found
that: (1) the marks are virtually identical in sound, appearance, connotation and
commercial impression; (2) Applicant’s identified goods and Registrant’s online
information services in the field of health and wellness are related; and (3) the parties’
respective goods and services move in overlapping trade channels and would be
offered to the same or overlapping classes of purchasers. In view thereof, we conclude
that Applicant’s JUST BLOOM mark, as used in connection with the goods identified
in its involved application, so resembles the cited standard character mark JUST
BLOOM! for Registrant’s services identified as “providing on-line information, news
and commentary in the field of health and wellness relating to physical and mental
wellbeing” as to be likely to cause confusion or mistake, or to deceive under Section
Serial No. 88537442
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2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s JUST BLOOM mark under Section
2(d) of the Trademark Act is affirmed.