NatureWorks

Trademark Trial and Appeal Board

Jan 7, 2022

88236619 (T.T.A.B. Jan. 7, 2022)

This Opinion is not a Precedent of the TTAB Mailed: January 7, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re NatureWorks _____ Serial No. 88236619 _____ Darren Spielman and Robert Kain of The Concept Law Group, P.A., for NatureWorks.1 Jared M. Mason, Trademark Examining Attorney, Law Office 119, Brett J. Golden, Managing Attorney. _____ Before Cataldo, Goodman and Dunn, Administrative Trademark Judges. Opinion by Goodman, Administrative Trademark Judge: NatureWorks (“Applicant”) seeks registration on the Principal Register of the mark HYDROMATE (in standard characters) for “Reusable water bottle of varying sizes, colors and materials sold empty” in International Class 21.2 1 Derek Fahey of The Plus IP Firm, PLLC filed the appeal brief, but during the appeal Applicant substituted the above-listed counsel. 2 Application Serial No. 88236619 was filed on December 20, 2018, based upon applicant’s assertion of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Page references to the application record refer to the online database pages of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs on appeal Serial No. 88236619 - 2 - The Trademark Examining Attorney has refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of likelihood of confusion with the following registered mark HYDRATE MATE (in standard characters) for “Bottles, sold empty; Drinking bottles for sports; Glass beverageware; Reusable plastic water bottles sold empty; Water bottles sold empty” in International Class 21.3 When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed.4 We affirm the refusal to register. I. Likelihood of Confusion Section 2(d) of the Trademark Act prohibits registration of a mark that so resembles a registered mark as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion, mistake, or to deceive. 15 U.S.C. § 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on an analysis of all probative facts in the record that are relevant to the likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, referred to as refer to the Board’s TTABVUE docket system. Applicant’s brief is at 8 TTABVUE; the Examining Attorney’s brief is at 12 TTABVUE. 3 Registration No. 4652712, Section 8 accepted and Section 15 acknowledged. 4 At one point, the appeal was suspended on Applicant’s request, pending whether the Registrant would file its Section 8 and 15 affidavit. The Board resumed proceedings upon the Office issuing a notice of acceptance under Section 8 of the Trademark Act and a notice of acknowledgement under Section 15 of the Trademark Act. Serial No. 88236619 - 3 - “DuPont factors”). We consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162- 63 (Fed. Cir. 2019). In every Section 2(d) case, two key factors are the similarity or dissimilarity of the marks and the goods or services. 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.”). “Not all of the [DuPont] factors are relevant to every case, and only factors of significance to the particular mark need be considered.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed. Cir. 2012) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)). A. Similarity of the Goods and Channels of Trade We first consider the “[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration.” DuPont, 177 USPQ at 567. See also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-63 (Fed. Cir. 2014). The goods need only be “related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that the goods [or services] emanate from the same source.” Coach Servs., Inc., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). It is sufficient for a finding of likelihood of confusion as to a particular class if relatedness is established for any Serial No. 88236619 - 4 - item of identified goods or services within that class in the application or cited registration. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). Applicant’s goods are “Reusable water bottle of varying sizes, colors and materials sold empty” and Registrant’s goods are “Bottles, sold empty; Drinking bottles for sports; Glass beverageware; Reusable plastic water bottles sold empty; Water bottles sold empty.” Applicant’s and Registrant’s goods are legally identical in part. In particular, Registrant’s “water bottles sold empty” is broad enough to encompass Applicant’s “reusable water bottles of varying sizes, colors and materials sold empty,” and Applicant’s “reusable water bottle of varying sizes, colors and materials sold empty” is broad enough to encompass Registrant’s “reusable plastic water bottles sold empty.” In re Hughes Furniture Industries, Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (broadly worded identification of “furniture” necessarily encompasses Registrant's narrowly identified “residential and commercial furniture”). We next consider “the similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont, 177 USPQ at 567. Applicant argues that it sells its products through “a Direct-to-Consumer (DTC) distribution channel,” “bypassing third-party retailers, wholesalers, or other intermediaries” while Registrant uses an indirect distribution channel in which retailers distribute the products to the end consumer.5 (8 TTABVUE 23). 5 As the Examining Attorney points out, Applicant has not provided evidence to support this argument. (12 TTABVUE 10). The only evidence in the record is the Amazon website Serial No. 88236619 - 5 - However, because the identifications of goods in the application and registration are legally identical in part and unrestricted as to trade channels, we must also presume that both Applicant’s and Registrant's legally identical products travel in the same ordinary trade and distribution channels and will be marketed to the same potential consumers. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion). Therefore, we find the trade channels overlap. B. Conditions of Sale We next consider “the conditions under which and the buyers to whom sales are made.” DuPont at 567. Neither identification of goods is restricted by price, and the goods are presumed to include items at all price points. See In re i.am.symbolic, llc, 116 USPQ2d 1406, 1413 (TTAB 2015), aff’d 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017). The evidence of record shows that Applicant’s plastic water bottles are $17.98, $19.95 (list price $29.95), and $21.95. Registrant’s plastic water bottles are $12.97 and $11.55, and plastic water bottles from other suppliers range from $59.99 to $5.99. (March 4, 2020 Office Action at TSDR 5-12; September 4, 2020 Request for Reconsideration at TSDR 171-172, 177, 180; September 14, 2020 Denial of Reconsideration at TSDR 2- submitted by the Examining Attorney which shows that Applicant’s product is sold by NatureWorks USA and fulfilled by Amazon while Registrant’s product is sold by A-Z Products (an entity different than the identified Registrant) and fulfilled by Amazon. According to the product pages, purchasers can visit the NatureWorks store and the Full Circle store on the Amazon website. (September 14, 2020 Denial of Reconsideration at TSDR 2, 5). Serial No. 88236619 - 6 - 7; February 6, 2020 Response to Office Action at TSDR 159-160, 165). As reflected by the website evidence, these goods are sold to the general public. Applicant argues that “the relevant buyer class comprises of serious athletes and/or individuals who need visual motivation and/or a larger quantity/volume of water for adequate hydration.” (8 TTABVUE 24). Applicant’s and Registrant’s goods are legally identical in part and there are no restrictions as to classes of consumers; therefore, we must presume that the classes of customers at issue are the same and that Registrant’s purchasers would also be athletes or those individuals concerned about hydration. See In re Viterra Inc., 101 USPQ2d at 1908. Applicant, without reference to any evidence, also argues that commercial consumers of these goods are sophisticated.6 (8 TTABVUE 23-24). However, Applicant does not assert, and its identification of goods does not reflect, that Applicant sells to commercial consumers. In fact, Applicant asserts that its goods are sold directly to the consumer, which presumably includes individual consumers. Moreover, Registrant’s identification of goods also is unrestricted, and so Registrant too is presumed to sell to both commercial and individual consumers. With respect to consumer sophistication, the goods of both Applicant and Registrant are ultimately sold to customers who employ nothing more than ordinary care in their purchasing decisions. 6 As the Examining Attorney points out, “Applicant has not made any showing” to support Applicant’s arguments about sophisticated purchasers. (12 TTABVUE 11; March 4, 2020 Office Action at TSDR 1). Statements and arguments of an attorney are not a substitute for evidence. Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)). Serial No. 88236619 - 7 - Given the price points of Applicant’s and Registrant’s goods, we cannot conclude that all consumers of the identified goods are sophisticated, and precedent requires that we base our decision on the least sophisticated potential purchasers. In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (citing Stone Lion, 110 USPQ2d at 1163). Such purchasers will exercise no more than ordinary care in their purchasing decisions. We therefore consider the DuPont factor regarding conditions of purchase as neutral. C. Strength of the marks Because the strength of the cited mark may affect the scope of protection to which it is entitled, we examine Applicant’s argument that both HYDR and MATE are weak terms in connection with water bottles and other containers and that the registered mark HYDRATE MATE is entitled to a narrow scope of protection. (8 TTABVUE 18- 20). Applicant submitted use-based registrations that include the terms HYDRATE, HYDRA, HYDRO and HYDR associated with water bottles, use-based registrations that include the prefix HYDR in connection with containers, and use-based registrations that include the term MATE in connection with water bottles and containers. (September 4, 2020 Request for Reconsideration at TSDR 60-168; February 6, 2020 Response to Office Action at TSDR 47-156). For example, Applicant has submitted records for use-based registrations for marks that contain HYDRO (including HYDROJUG, HYDRO GUARD, HYDRO2GO, HYDROSHOT, HYDROCELL, HYDRO PREMIERE, HYDRO CORD, HYDRONET, Serial No. 88236619 - 8 - HYDROS) for goods that list water bottles sold empty as a good; use-based registrations for marks that contain HYDRA (including HYDRACENTIALS, HYDRA MIST, HYDRANATOR, HYDRACRAZE, HYDRA-PUR, HYDRAMUG, HYDRACTION, HYDRAKNIGHT, HYDRAPAK, HYDRACY, HYDRABURST, HYDRATRAK, HYDRAKLICK, HYDRA THE REVENGE) that list water bottles sold empty as a good; use-based registrations for marks containing HYDRATE/HYDRATION (including HYDRATE, HYDRATE and CHILL, HYDRATE.RUN STRONGER, HYDRATE BEFORE YOU CAFFEINATE, HYDRATION EVOLVED) that list water bottles sold empty as a good; and use-based marks containing HYDR (including HYDRINK and HYDR8) that list water bottles sold empty as a good. Applicant also submitted registrations for marks that Applicant submits contain “synonymous” terms for water and are combined with the suffix MATE (including AQUAMATE, AQUA-MATE, WATERMATE, QUENCHMATES) that list bottles and water bottles as a good; and registrations for marks that contain the suffix MATE (including FOLKSMATE, BIKEMATE, RUNNING MATE, BOBAMATE, TRAVELMATEZ) that list bottles, plastic bottles, and water bottles sold empty as a good. Third-party registrations can be used to show the sense in which a term is used in ordinary parlance and may show that a particular term has descriptive or suggestive significance in the relevant industry as applied to certain goods or services. Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1105, Serial No. 88236619 - 9 - 1674 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015). Third-party registration evidence goes to conceptual strength of the cited mark, not commercial strength. Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1057 (TTAB 2017) (“Use evidence may reflect commercial weakness, while third-party registration evidence that does not equate to proof of third-party use may bear on conceptual weakness if a term is commonly registered for similar goods or services.”) (citing Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976)). We have discounted those registrations that are for unrelated goods. In re Thor Tech Inc., 90 USPQ2d 1634, 1639 (TTAB 2009) (third- party registrations for goods that appear to be in fields which are far removed from the goods at issue are of limited probative value). Applicant’s third-party registration evidence reflects that HYDRATE, HYDRA, HYDRO and HYDR are common prefixes/terms used in connection with water bottles and beverage containers and shows conceptual weakness of these terms as applied to these goods. The dictionary definitions of HYDRO and HYDRATE, discussed below, also support the descriptiveness or suggestiveness of those terms. The third-party registration evidence of MATE, while much more modest, also is probative of some suggestiveness of this term as applied to water bottles and beverage containers. Overall, we find the terms in the cited mark have some conceptual weakness individually. Serial No. 88236619 - 10 - It is well-established that the weakness of the individual components of a mark is not, of itself, sufficient to prove that their combination creates a weak mark. See In re Merck & Co., Inc., 189 USPQ 355, 356 (TTAB 1975) (“In support of its ‘weak mark’ argument, applicant has listed a number of third-party registrations in the pharmaceutical field all containing in some part thereof, the letter ‘M’. As to these, while they may show frequent adoption and registration of the letter ‘M’ as a portion of composite marks, said registrations do not establish that registrant's mark viewed as a whole is weak and entitled to limited protection. . . ”); Breon Laboratories Inc. v. Vargas, 170 USPQ 532, 535 (TTAB 1971) (“Likewise, the adoption and registration by third persons of either ‘BRONK’ or ‘FEDRIN’ or ‘EPHRINE’ as a portion of their marks is manifestly insufficient to establish that the unitary mark ‘BRONKEPHRINE’ is devoid of trademark significance or a ‘weak’ mark entitled.”). See also Palisades Pageants, Inc. v. Miss Am. Pageant, 442 F.2d 1385, 169 USPQ 790, 793 (CCPA 1971) (discounting the probative value of third-party registrations where “appellant’s mark is closer to appellee’s than even the closest of the third-party registrations”). The record does not show weakness of the combination of terms in the cited mark HYDRATE MATE; Applicant has provided no third-party registrations for the combined term. Thus, the cited registration is the only one combining these terms for the relevant goods, and is presumed to be inherently distinctive as it is registered on the Principal Register without resort to a claim of acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. § 1052(f). See In re Fiesta Palms LLC, 85 Serial No. 88236619 - 11 - USPQ2d 1360 (TTAB 2007) (quoting In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997)). We find that Applicant has not shown that the combination of the terms HYDRATE and MATE is conceptually weak. Applicant also submitted evidence of third-party use of HYDRATE, HYDRO, HYDRA, HYDR and MATE in connection with water bottles. This type of evidence showing consumer exposure to use of a term or mark by third parties may indicate commercial weakness of that term or mark, in that consumers have been conditioned to distinguish among similar marks based on minor differences. See Juice Generation, 115 USPQ2d at 1647. In particular, Applicant submitted evidence of the use of HYDRO (HYDRO, HYDROS, HYDRO FLASK, HYDROFLO), HYDRATE (HYDRATE, HYDR-8, HIDRATESPARK HYDRATEM8, ) and MATE (WATERMATE CELLO WATER MATE, HYDRATEM8).7 (September 4, 2020 Request for Reconsideration at TSDR 170-181; February 6, 2020 Response to Office Action at TSDR 158-169). The CELLO WATER MATE listing is shown on an Amazon.in (India) webpage, and the HYDRATEM8 and goods appear to be listed on separate United Kingdom websites as the prices are shown in British pounds.8 7 Applicant failed to properly submit this webpage Internet evidence into the record as the pages did not show the date accessed and a URL containing the website address. However, because the Examining Attorney did not object to the website evidence, we deem the objection waived. In re Mueller Sports Medicine, Inc., 126 USPQ2d 1584, 1587 (TTAB 2018). 8 “Various factors may inform the probative value of a foreign website in any given case, such as whether the website is in English (or has an optional English language version), and whether the nature of the goods or services makes it more or less likely that U.S. consumers will encounter foreign websites in the field of question.” In re Well Living Lab Inc., 122 USPQ2d 1777, 1781 n.10 (TTAB 2017). We consider the United Kingdom websites as they Serial No. 88236619 - 12 - Although the evidence shows that the separate terms HYDRO, HYDRATE and MATE are used in connection with water bottles by third-parties, this evidence is quantitatively limited for purposes of showing any significant commercial weakness in these terms. Applicant has provided only one instance of third-party use of HYDRATE MATE, in the form of the phonetically equivalent HYDRATEM8. We find these uses are not so “considerable” that we can conclude that customers have been conditioned to distinguish between different HYDRATE-formative marks for water bottles. See In re i.am.symbolic, LLC, 123 USPQ2d at 1751 (evidence of third-party use in case fell “short of the ‘ubiquitous’ or ‘considerable’ use of the mark components present in [applicant’s] cited cases”). Overall the evidence fails to show that “customers have become so conditioned by a plethora of such similar marks that customers have been educated to distinguish between different such marks on the bases of minute distinctions.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005). Accordingly, this DuPont factor is neutral. D. Similarity of the Marks We now consider the similarity or dissimilarity of the marks in terms of appearance, sound, connotation, and overall commercial impression. Palm Bay Imps. 73 USPQ2d at 1691. The test is not whether the marks can be distinguished when subjected to a side-by-side comparison, but rather whether the marks are sufficiently are in English and a United States consumer searching water bottles may encounter these websites. Serial No. 88236619 - 13 - similar in terms of their overall commercial impression that confusion as to the source of the goods or services offered under the respective marks is likely to result. Coach Servs., 101 USPQ2d at 1721. 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). Applicant argues that Registrant’s house mark must be considered in connection with the analysis because Registrant “uses the terms ‘HYDRATE MATE’ as a subtitle in conjunction with its FULL CIRCLE House Mark.” (8 TTABVUE 21). Applicant submits that “the FULL CIRCLE House Mark does not use the term ‘HYDRATE MATE’ directly on the product, but merely as a removable sticker advertisement.” (8 TTABVUE 21). Applicant argues that “[n]othing about FULL CIRCLE’s use in this context suggests that consumers would view ‘HYDRATE MATE’ as a source indicator” but would look to ‘FULL CIRCLE HYDRATE MATE’ to distinguish it from other HYDRATE and MATE marks. (8 TTABVUE 22). Applicant also references its use of its mark on the product as “permanent” and not an “advertising sticker” and its presentation as a motivational water bottle. (8 TTABVUE 20, 22). However, we do not consider how Applicant and Registrant actually use their marks in the marketplace, but rather how they appear in the registration and the application. We must compare the marks as they appear in the drawings, and not on any labels or packaging or the product itself that may have additional wording or information. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB 2018). Serial No. 88236619 - 14 - See also In re i.am.symbolic, LLC, 123 USPQ2d at 1749 (“To the extent that Symbolic is advocating that we consider another mark, will.i.am, that is not part of the applied- for mark in analyzing the similarity of the marks, we decline to do so. The correct inquiry requires comparison of the applied-for mark, which only includes the words ‘I AM,’ to the registrants’ marks.”); SCM Corp. v. Royal McBee Corp., 395 F.2d 1018, 158 USPQ 36, 37 n.4 (CCPA 1968) (“Certain exhibits reflect the parties’ current practice of associating their house marks ‘SCM’ and ‘Royal’ with ‘ELECTRA’ and ‘ELECTRESS’, respectively. However, our concern here, of course, is whether ‘ELECTRA’, the mark actually registered, and ‘ELECTRESS’, the mark for which registration is sought, are confusingly similar when applied to the instant goods.”); Bellbrook Dairies, Inc. v. Hawthorn-Mellody Farms Dairy, Inc., 253 F.2d 431, 117 USPQ 213, 214 (CCPA 1958) (“The fact that each of the parties applies an additional name or trademark to its product is not sufficient to remove the likelihood of confusion. The right to register a trademark must be determined on the basis of what is set forth in the application rather than the manner in which the mark may be actually used.”). Applicant also argues that the Examining Attorney improperly dissected its mark as HYDR and MATE, finding HYDR as the dominant portion of its mark. We view HYDROMATE as a unitary term where no one portion is dominant. Applicant’s mark is HYDROMATE and Registrant’s mark is HYDRATE MATE. Both Applicant’s and Registrant’s marks are in standard characters which means they can be displayed in any font, style, color, or presentation. Citigroup Inc. v. Serial No. 88236619 - 15 - Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) (standard character registrations “are federal mark registrations that make no claim to any particular font style, color, or size of display and, thus, are not limited to any particular presentation,” citing 37 C.F.R. § 2.52). The marks are similar in appearance in that both marks begin with the letter combination HYDR and end with MATE. The marks differ in appearance to the extent that HYDR in Applicant’s mark forms the prefix HYDRO while HYDR in Registrant’s mark forms the word HYDRATE. Although there are slight differences in the marks, overall we find the marks are similar in appearance as the common elements at the beginning and end of the marks create a visual resemblance. See e.g., Breon Labs., 170 USPQ at 536 (BRONCO-FEDRIN and BRONKEPHRINE similar in appearance). As to similarity in sound, Applicant argues that the marks have distinct textual and pronunciation differences due to the differences between HYDRO and HYDRATE. (8 TTABVUE 13). Although we acknowledge there are slight differences in sound due to the middle portion of the marks containing different vowels (“O” and “A”) and the additional letters “TE” in Registrant’s mark, consumers who hear the marks spoken by others might not notice, or could easily forget, the difference. See Viterra, 101 USPQ2d at 1912 (any minor differences in the sound of XCEED and X-SEED marks may go undetected by consumers and, therefore, would not be sufficient to distinguish the marks); In re Energy Telecomms. & Elec. Ass’n, 222 USPQ 350, 351 (TTAB 1983) Serial No. 88236619 - 16 - (“Slight differences in the sound of similar marks do not avoid a likelihood of confusion.”). We find that Applicant’s and Registrant’s marks are similar in sound in that they begin with the prefix HYDR and end with the suffix MATE. These common elements create a phonetic similarity. As such, the minor differences in sound do not obviate the overall similarity of the marks when spoken or heard. See e.g., Breon Labs., 170 USPQ at 536 (BRONCO-FEDRIN and BRONKEPHRINE frequently would sound alike when spoken). As to connotation and commercial impression, Applicant argues that HYDROMATE is a coined term that has no definition, and that HYDRO, MATE, and HYDRATE have very distinct definitions. (8 TTABVUE 17). Applicant asserts that “MATE” may be defined as a “partner,” (8 TTABVUE 25), but rejects the Examining Attorney’s contention that HYDRO “means or might be recognized” as HYDRATE, arguing that there is no evidence to support this contention. (8 TTABVUE 25). Applicant submits that HYDRO and HYDRATE yield different commercial impressions. (8 TTABVUE 25). Applicant asserts that HYDRO in HYDROMATE invokes the idea of “furnishing [HYDROPOWER] by some form of device, friend, assistant,” as HYDRO in Applicant’s mark refers to “the ability to provide a consumer with an abundance of energy, analogous to energy generated from the usage of ‘HYDRO-ELECTRICITY.’” (8 TTABVUE 13, 25). Applicant asserts that HYDRATE in HYDRATE MATE is defined as “to supply with ample fluid or moisture” making “[t]he term “HYDRATE” . . . descriptive of what the good is Serial No. 88236619 - 17 - intended,” by describing “the purpose of the Registrant’s goods - a bottle intended to carry a supply of water.” (8 TTABVUE 19). Applicant also contends that HYDRATE is associated with “providing water with some other substance (such as electrolytes) for the sole purpose of quenching a person's thirst due to dehydration,” (8 TTABVUE 12), while HYDRO “is a common root-word distinctly meaning water (or referring to water), not the ability to ‘QUENCH’ thirst (or properly ‘HYDRATE’).” (8 TTABVUE 12-13). Applicant submits that HYDROMATE provides the commercial impression of a “motivational or exercising buddy or “MATE” that helps you keep track of your water intake throughout your exercise and/or day” while HYDRATE MATE provides a commercial impression of “a hydration container/hydration bladder/hydration water bottle “that allows a consumer to make sure they receive adequate hydration levels.”(8 TTABVUE 14). Both Applicant and the Examining Attorney submitted dictionary definitions for HYDRO, HYDRATE and MATE. We find the following definitions most relevant. HYDR or its variant HYDRO is defined as “water,” MERRIAM-WEBSTER DICTIONARY, Merriam-webster.com (March 4, 2020 Office Action at TSDR 2), or “of or relating to furnishing water.” RANDOM HOUSE UNABRIDGED DICTIONARY, Dictionary.com, (February 6, 2020 Response to Office Action at TSDR 173). HYDRATE is defined as “to supply with ample fluid or moisture.” MERRIAM-WEBSTER DICTIONARY, Merriam- Webster.com (February 6, 2020 Response to Office Action at TSDR 176, March 4, 2020 Office Action at TSDR 3; September 4, 2020 Request for Reconsideration at Serial No. 88236619 - 18 - TSDR 29). MATE is defined as a “companion” or “associate.” MERRIAM WEBSTER DICTIONARY, Merriam-Webster.com (February 6, 2020 Response to Office Action at TSDR 179, September 4, 2020 Request for Reconsideration at TSDR 43, 48, 53). HYDRO and HYDRATE in the marks relate to water or fluids, and when combined with MATE, which suggests a companion, create similar overall meanings. Registrant’s mark connotes a companion that supplies ample fluid, while Applicant’s mark connotes a water companion. Where similar terms or phrases, or similar parts of terms or phrases, appear in the compared marks, they create a similar overall commercial impression for identical or closely related goods. In this case, the substitution of the letter “o” for “a” in HYDRO/HYDRA and the omission of TE from the middle of Applicant’s mark, HYDROMATE does not obviate the similar commercial impression with Registrant’s HYDRATE MATE mark. See Crocker Nat’l Bank v. Canadian Imperial Bank of Commerce, 228 USPQ 689, 690-91 (TTAB 1986), aff’d sub nom. Canadian Imperial Bank of Commerce, N.A. v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1817 (Fed. Cir. 1987) (finding COMMCASH and COMMUNICASH strikingly similar in appearance, sound and in meaning and since the marks are used in connection with identical banking services, source confusion is likely); Fiserv, Inc. v. Elec. Transaction Sys. Corp., 113 USPQ2d 1913, 1919 (TTAB 2015) (“We find it likely that, with overlapping services, consumers will perceive PMONEY as an abbreviation of POPMONEY.”). Thus, both marks provide similar commercial impressions. Serial No. 88236619 - 19 - Applicant cites a non-precedential case, In re NexBank Capital, Inc., Serial No. 86394529 (TTAB July 14, 2020), in support of its arguments that the marks are dissimilar.9 (8 TTABVUE 8). In that case, Applicant sought to register the mark NEXBANK, and the Examining Attorney refused registration under Section 2(d) citing NXT BANK as a confusingly similar mark. In its decision, the Board found the services identical in part and the trade channels overlapped for the legally identical services. However, the Board found no evidence in the record as to the meaning or connotation of NEX in connection with financial services, insufficient evidence in the record to establish that NXT and NEX were equivalent, and insufficient evidence in the record that NXT would be pronounced as “next” - as opposed to N-X-T. Due to these deficiencies in the record, the Board found the marks dissimilar and reversed the refusal to register. In this case, there is dictionary evidence in the record relating to the pronunciation and meanings of HYDRO, HYDRATE and MATE that are sufficient to support findings that the marks are similar in sound, connotation, and commercial impression. Exact similitude is not necessary to find that the marks are confusingly similar. Hercules Inc. v. Nat’l Starch and Chem. Corp., 223 USPQ 1244, 1246 (TTAB 1984) (NATROSOL and NATROL confusingly similar). 9 While applicants may cite to non-precedential decisions, such decisions are not binding on the Board, and the Board does not encourage this practice. In re Fiat Grp. Mktg. & Corporate Commc’ns S.p.A., 109 USPQ2d 1593, 1596 n.6 (TTAB 2014); In re Procter & Gamble Co., 105 USPQ2d 1119, 1121 (TTAB 2012). Serial No. 88236619 - 20 - We find that the small differences between the marks do not obviate the likelihood of confusion when compared to the marks’ overall similarity in sound, appearance, meaning and commercial impression. II. CONCLUSION We have considered all of the arguments and evidence of record and all relevant DuPont factors. We find the marks are similar, the goods are legally identical in part, move in overlapping channels of trade, and are offered to the same class of consumers. As a result we find confusion likely. Decision: The refusal to register Applicant’s mark HYDROMATE is affirmed.