The Wonderful Company LLC.v.Comrade Brewing Company, LLC.

Trademark Trial and Appeal Board

Aug 2, 2018

No. 91230877 (T.T.A.B. Aug. 2, 2018)

Mailed: August 2, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

The Wonderful Company LLC.
v.
Comrade Brewing Company, LLC.
_____

Opposition No. 91230877
_____

Christopher G. Ranson, Michael M. Vasseghi and Danielle M. Criona of Roll Law
Group PC for The Wonderful Company LLC.

H. Michael Drumm, Trent Rinebarger and Derek E. Long of Drumm Law LLC for
Comrade Brewing Company, LLC.
______

Before Cataldo, Ritchie and Larkin,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
Opposer, The Wonderful Company LLC, has opposed Applicant, Comrade Brewing
Company LLC’s application to register SUPERPOWER (in standard characters)
identifying “beer” in International Class 32.1

1 Application Serial No. 86905132 was filed on February 11, 2016 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging April 24, 2014 as a date of first use of the mark
anywhere and in commerce.
This Opinion is Not a
Precedent of the TTAB
Opposition No. 91230877

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I. The Pleadings
The sole ground for opposition asserted at trial was priority and likelihood of
confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d).2 Opposer
pleaded ownership of Registration No. 3382295 for the mark ANTIOXIDANT
SUPERPOWER (in typed or standard characters, “ANTIOXIDANT” disclaimed)
identifying “fruit juices” in International Class 32.3
Applicant’s answer denied the salient allegations contained in the Notice of
Opposition and asserted amplifications of its denials as “affirmative defenses.”4
II. Evidence of Record and Evidentiary Objections
The record includes the pleadings, and by operation of Trademark Rule 2.122(b), 37
CFR § 2.122(b), the application file of the opposed application, as well as the evidence
discussed below.
Opposer appended to its brief5 objections to the testimony affidavit of Mr. David
Lin, Applicant’s Chairman and founder, and exhibits thereto,6 on the grounds of
relevance and lack of foundation, and that the testimony calls for a legal conclusion.
Some of Opposer’s concerns go more toward the weight the testimony and exhibits

2 1 TTABVUE. In its notice of opposition, Opposer also asserted non-use as a ground for
opposition. Because Opposer did not pursue this claim during trial or in its brief, we find, in
accordance with the Board’s usual practice, that the claim is waived. Alcatraz Media Inc. v.
Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 (TTAB 2013), aff’d mem., 565 Fed.
Appx. 900 (Fed. Cir. 2014).
3 Registration No. 3382295 issued on February 12, 2008. Section 8 affidavit accepted; Section
15 affidavit acknowledged. First Renewal.
4 4 TTABVUE.
5 15 TTABVUE 31-32.
6 14 TTABVUE.
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are to be given rather than their admissibility, and none of the evidence is material
to our outcome-determinative findings of fact. Ultimately, the Board is capable of
weighing the relevance and strength or weakness of the objected-to testimony and
exhibits in this specific case, including any inherent limitations, and this precludes
the need to strike that evidence. Luxco, Inc. v. Consejo Regulador del Tequila, A.C.,
121 USPQ2d 1477, 1479 (TTAB 2017). Given the circumstances herein, we choose not
to make specific rulings on each and every objection. As necessary and appropriate,
we will point out in this decision any limitations applied to the testimony and exhibits
or otherwise note why the evidence cannot be relied upon in the manner sought. See
Alcatraz Media, 107 USPQ2d at 1755; Kohler Co. v. Baldwin Hardware Corp., 82
USPQ2d 1100, 1104 (TTAB 2007). Opposer’s objections otherwise are overruled.
The parties introduced testimony and Opposer submitted a notice of reliance.7
Opposer’s testimony and evidence:
The testimony affidavit of Ms. Molly Flynn, Opposer’s Director of
Marketing, with attachments consisting of photographs of Opposer’s
packaging; screenshots from Opposer’s website; hangtags, signage and
displays for Opposer’s goods; copies of Opposer’s print, billboard and
internet advertisements; cease and desist letters sent to third parties;
and Opposer’s advertising expenditures for 2009 – January 2017.8

7 The parties stipulated to the authenticity of documents produced during discovery;
testimony by affidavit or declaration; procedures for cross-examination of testimony affiants
or declarants; and procedures for conducting testimony depositions, if necessary. 5
TTABVUE.
8 12 TTABVUE. In her testimony affidavit, Ms. Flynn referenced numerous television
advertisements that she asserts are available online on Opposer’s YouTube channel, and
provided a hyperlink thereto. Id. at 5. We have made clear that providing hyperlinks to
internet materials is insufficient to make such materials of record. See In re Olin, 124
USPQ2d 1327, 1331 n.15 (TTAB 2017) (citing In re Powermat Inc., 105 USPQ2d 1789, 1791
(TTAB 2013)); In re HSB Solomon Assocs., LLC, 102 USPQ2d 1269, 1274 (TTAB 2012)
(stating that “a reference to a website’s internet address is not sufficient to make the content
of that website or any pages from that website of record”); Safer Inc. v. OMS Invs. Inc., 94
Opposition No. 91230877

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Notice of reliance on printouts showing the status and title of Opposer’s
pleaded registration.

The declaration of Mr. Christopher Butler, Office Manager at the
Internet Archive, introducing screenshots from Opposer’s website.9

Applicant’s Testimony and Evidence.
The testimony affidavit of Mr. Lin, with attachments consisting of a copy
of a printed article discussing Applicant, its brewery and beer; and
photographs of Applicant’s logo and trade dress appearing on its
taproom, glassware, t-shirts and marketing materials.10

Both parties filed briefs, and Opposer filed a reply brief.11
III. Standing and Priority
Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1061-62 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401, 191 L. Ed. 2d
360 (2015); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185,
187-89 (CCPA 1982) see also, e.g., Bell’s Brewery, Inc. v. Innovation Brewing, 125
USPQ2d 1340, 1344 (TTAB 2017). In order to meet the standing requirement, a
plaintiff need only show that it has a real interest, i.e., a personal stake, in the
outcome of the proceeding. See Ritchie v. Simpson, 170 F.3d 1092, 1095, 50 USPQ2d
1023, 1025-26 (Fed. Cir. 1999); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d

USPQ2d 1031, 1039 (TTAB 2010) (noting that because of the transitory nature of internet
postings, websites referenced only by links may later be modified or deleted). The
advertisements putatively available on Opposer’s YouTube channel are not evidence in this
proceeding and have not been considered.
9 7-8 TTABVUE.
10 14 TTABVUE.
11 15 TTABVUE; 16 TTABVUE; 17 TTABVUE.
Opposition No. 91230877

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1356, 101 USPQ2d 1713, 1727(Fed. Cir. 2012). A belief in likely damage can be shown
by establishing a direct commercial interest. Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000).
Opposer’s standing to oppose registration of Applicant’s mark is established by its
pleaded registration, which the record shows to be valid and subsisting, and owned
by Opposer. See, e.g., Cunningham, 55 USPQ2d at 1844; Otter Prods. LLC v.
BaseOneLabs LLC, 105 USPQ2d 1252, 1254 (TTAB 2012). In addition, because
Opposer’s pleaded registration is of record and Applicant did not counterclaim to
cancel it, priority is not an issue with respect to the goods identified in Opposer’s
registration. Penguin Books Ltd. v. Eberhard, 48 USPQ2d 1280, 1286 (TTAB 1998)
(citing King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108,
110 (CCPA 1974)).
IV. Likelihood of Confusion
The issue before us is whether Applicant’s applied-for mark so resembles
Opposer’s registered mark as to be likely, when used on or in connection with the
goods identified in Applicant’s application, to cause confusion, mistake, or deception.
15 U.S.C. § 1052(d). In determining this issue, based on the evidence and arguments
presented, we consider the relevant factors bearing on likelihood of confusion
enunciated in In re E.I. DuPont de Nemours & Co, 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“du Pont”) (cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 135
S.Ct.1293, 113 USPQ2d 2045, 2049 (2015)) and in In re Majestic Distilling Co. Inc.,
315 F.3d 1311, 1314-15, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered
Opposition No. 91230877

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each du Pont factor that is relevant and for which there is evidence of record. See M2
Software, Inc. v. M2 Commc’ns., Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed.
Cir. 2006); ProMark Brands Inc. and H.J. Heinz Co. v. GFA Brands, Inc., 114
USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which
we have evidence, we focus our analysis on those factors we find to be relevant.”). We
treat as neutral any du Pont factors for which there is no record evidence or
argument.
In any likelihood of confusion analysis, two key considerations are 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 (CCPA 1976); In re Mr.
Recipe, LLC, 118 USPQ2d 1084, 1086 (TTAB 2016).
Opposer bears the burden of proving likelihood of confusion by a preponderance
of the evidence. Cunningham, 55 USPQ2d at 1844. As detailed below, we conclude
that Opposer has not met its burden.
A. Similarity or Dissimilarity of Goods and Their Channels of Trade
We evaluate the relatedness of the parties’ respective goods based on their
identifications in the subject application and pleaded registration. Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir.
2014), quoting Octocom Sys., Inc. v. Hous. Comps. Servs., Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990). See also Paula Payne Prods. v. Johnson
Publishing Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases
Opposition No. 91230877

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involving the issue of likelihood of confusion must be decided on the basis of the
respective descriptions of goods”).
Opposer argues:
Here Opposer’s ANTIOXIDANT SUPERPOWER® Mark is registered
for “fruit juices” and the SUPERPOWER application is for “beer”.
(Opposer NOR, Ex. 1). Beer and juice are both beverages that are often
sold in the same stores and are likely purchased together. Furthermore,
this Board itself has previously held fruit juice and wine to be
sufficiently related such that consumers would associate one with the
other. Pink Lady Corp. v. L.N. Renault & Sons, Inc., 265 F.2d 951, 953
[121 USPQ 465, 466] (C.C.P.A 1959). That beer and fruit juice are
related goods is also evidenced by the fact that multiple registrants seek
to register, or have registered, the same trademark for both beer and
fruit drinks.12

Opposer offers no evidence to support its speculative statements that beer and
fruit juice “are often sold in the same stores” and “are likely to be purchased
together.”13 In her testimony affidavit, Ms. Flynn testifies that while she has not seen
Opposer’s goods sold in the same refrigerated aisles in convenience stores as beer, she
has seen other fruit juices sold in the same aisles as beer, and she “can safely deduce
that POM’s 100% juice products are sold in the same refrigerated sections/aisles as
beers in convenience stores.”14 However, Opposer offers no evidence beyond Ms.
Flynn’s personal observation and deduction that the parties’ goods may be purchased
together in the same retail outlets. More importantly, Opposer offers no testimony or
evidence that beer and fruit juices are sold under the same mark and thus that

12 15 TTABVUE 24.
13 Id.
14 12 TTABVUE 8.
Opposition No. 91230877

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consumers are likely to view Opposer’s fruit juices and Applicant’s beer as emanating
from a common source.
We do not find persuasive Opposer’s reliance above on the CCPA’s decision in Pink
Lady because that decision involved the relatedness of wine – not beer – and fruit
juice. Nor do we find persuasive Opposer’s reliance upon a listing of mostly non-
precedential decisions that it asserts stands for the proposition that registrants seek
to register the same trademark for beer and fruit drinks.15 First, none of the listed
decisions stands for the proposition that beer and fruit juices are related for purposes
of a likelihood of confusion determination. Indeed, none of the decisions involves an
adjudication of the relatedness of beer and fruit juices.
Second, even if some of these decisions had found beer identified in an application
and fruit juice identified in a pleaded registration, or vice versa, to be related, the fact
that in other cases we may have decided a particular matter on a particular set of
facts and evidentiary record is no substitute for Opposer’s introducing evidence in
this case to support its position because “each case must be decided on its own facts.”
In re Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB 2010) (internal citation omitted).

15 Id. at 24 n.2. Notably absent from the record are third-party registrations covering both
beer and fruit juices, or evidence showing that the same mark is commonly used for both
goods.
To the extent that any of the listed decisions involved registrations covering both beer and
fruit juice, a mere listing of those cases does not make the referenced registrations of record
here. The Board does not take judicial notice of applications or registrations; they must be
proved by competent evidence. See, e.g., In re Jonathan Drew Inc., 97 USPQ2d 1640, 1644
n.11 (TTAB 2011) (stating that “the Board’s well-established practice is not to take judicial
notice of registrations that reside in the USPTO”); Beech Aircraft Corp. v. Lightning Aircraft
Co., 1 USPQ2d 1290, 1293 (TTAB 1986) (“[W]e do not take judicial notice of application and
registration files that reside in the Patent and Trademark Office on the basis of their mere
identification in briefs, pleadings and evidentiary submissions.”).
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In addition, non-precedential decision are not binding, and the ones cited here have
no probative value, on this record, on the issue of the relatedness of beer and fruit
juice. See In re Constr. Research & Tech. GmbH, 122 USPQ2d 1583, 1585 n.6 (TTAB
2017) (“Board decisions which are not designated as precedent are not binding on the
Board, but may be cited and considered for whatever persuasive value they may
hold.”) (citations omitted).
Opposer further argues:
Moreover, juice generally, and POM Wonderful’s 100% Juice
specifically, is often marketed and sold as a mixer for alcoholic
beverages. (Flynn Aff. at ¶ 25). This makes them even more likely to be
purchased together. In fact, POM Wonderful’s website features a variety
of alcoholic beverage recipes utilizing its 100% Juice Products as an
ingredient for those recipes. (Id., Ex. J). In addition, in 2009 POM
Wonderful engaged in a cross promotional marketing campaign in which
POM Wonderful hang tags, featuring a “Lola” cocktail recipe (containing
sparkling wine and pomegranate juice) and a coupon for POM
Wonderful’s 100% Pomegranate Juice, were affixed to bottles of
Chandon sparkling wine. (Flynn Aff. at ¶ 26, Ex. K)
Again, in 2012 POM Wonderful engaged in another cross promotional
marketing campaign in which POM Wonderful bottle neck tags, touting
“Pomegranate Prosecco Mimos” and featuring a coupon for POM
Wonderful’s 100% Pomegranate Juice, were affixed to bottles of Maschio
Prosecco. (Id., Ex. K).
Applicant’s founder David Lin testified that he was familiar with both
drink recipes that included fruit juice, and fruit juice flavored beers that
are bottled and sold. (Lin Aff. Responses to Opposer’s Questions 13-14).
The Board’s prior rulings are confirmed by the evidence in this case:
fruit juice and beer are related in the marketplace. This factor weights
[sic] in Opposer’s favor.16

Opposer’s arguments that fruit juice may be used as a mixer for alcoholic cocktails,
and that some beers may contain fruit juice, are supported only by Ms. Flynn’s

16 Id. at 25.
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assertions in her affidavit and Mr. Lin’s responses to Opposer’s cross-questions in his
affidavit. However, Mr. Lin’s acknowledgement that certain beers are flavored with
fruit juice does not establish that consumers are likely to view fruit juice, on the one
hand, and beer, on the other, as emanating from a common source. As noted above,
Opposer has introduced no evidence of third-party registrations of the same mark for
both fruit juices and beer, or any testimony or evidence to support a finding that it is
typical industry practice to offer both fruit juices and beer under the same mark. Ms.
Flynn’s opinion and samples of packaging and advertisements for Opposer’s goods
are not sufficient to demonstrate the relatedness of the parties’ goods for purposes of
our likelihood of confusion determination. The mere facts that Opposer offers fruit
juices, and that certain beers contain fruit juice, fall short of demonstrating that the
parties’ goods are related without evidence that third parties use and register the
same marks to identify fruit juice and beer. Simply put, Opposer has not submitted
sufficient evidence that consumers are accustomed to encountering these goods under
the same mark.
Opposer’s fruit juices and Applicant’s beer do not recite any limitations as to their
trade channels or the classes of consumers to whom they are offered. See Octocom, 16
USPQ2d at 1787. As a result, and in accordance with our established case law, we
must presume that the parties’ goods move in all channels of trade that are normal
therefor and are available to all the usual purchasers thereof. However, as discussed
above, Opposer has failed to introduce sufficient evidence to support a finding that
its goods under its mark are related to Applicant’s goods in its involved application.
Opposition No. 91230877

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Accordingly, we cannot presume that the channels of trade for Opposer’s goods are
the same as or overlap with those in which Applicant’s goods may be encountered. Cf.
Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-part
identical and in-part related nature of the parties’ goods, and the lack of any
restrictions in the identifications thereof as to trade channels and purchasers, these
clothing items could be offered and sold to the same classes of purchasers through the
same channels of trade.”). Opposer concludes that because of the lack of restrictions
in the identification of goods for either Opposer or Applicant, consumers will
encounter the parties’ products in similar trade channels. However, this principle
does not help the party asserting a likelihood of confusion “when the dispute involves
the comparison of different goods or services,” “unless there is further evidence that
would permit a comparison of the normal trade channels for the parties’ respective
goods or services.” Inter Ikea Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1743 (TTAB
2014).
Ms. Flynn testified that Opposer’s goods “are sold to retailers including club,
grocery, drug and convenience stores, as well as colleges, universities and
businesses.”17 As discussed above, Ms. Flynn also testified that she has seen fruit
juices other than Opposer’s and beer other than Applicant’s in the same aisles in
convenience stores.18 Mr. Lin testified that
The SUPERPOWER beer product is distributed wholesale in 5.17 gallon
and 15.5 gallon stainless steel kegs to restaurants and other
establishments holding valid liquor licenses. The SUPERPOWER

17 Id. at 6.
18 12 TTABVUE 8.
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product is also sold on tap by the glass, in growlers, or 32 oz aluminum
growlers filled and sealed on demand at Comrade’s taproom.
SUPERPOWER product is also sold by the glass in bars and restaurants
to consumers.19

Opposer argues that, based upon Ms. Flynn’s testimony, beer and fruit juice in
general may both be encountered in at least one common trade channel, i.e., the same
aisles in convenience stores. However, a great many products from within an
industry, and also from diverse industries, are available in modern supermarkets,
convenience stores and big box stores for the convenience of customers. See Federated
Foods, 192 USPQ at 29 (evidence that the only link between the goods is that they
are sold in the same area of a supermarket is not sufficient to establish that the goods
are related); Inter Ikea Sys., 110 USPQ2d at 1743 (“that applicant could conceivably
sell its nutritional, herbal, vitamin and mineral supplements through a retail store,
catalogs and over the internet does not prove that opposer’s goods and services and
applicant’s goods and services move through the same channels of trade and are sold
to the same classes of consumers”); Sports Auth. Michigan Inc. v. PC Auth. Inc., 63
USPQ2d 1782, 1794 (TTAB 2001) (“merely because both parties … use similar
methods of advertising does not mean that their respective services will be offered to
consumers under circumstances and through channels of trade which would create a
likelihood of confusion”). On this record, it appears that beer and fruit juice, most
likely along with a great many other products, are available in one common trade
chaneel, i.e., the same aisles of convenience stores.

19 14 TTABVUE 3.
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We find, on this record, that the du Pont factor of the relatedness of the goods
strongly supports a finding of no likelihood of confusion. The du Pont factor of the
relatedness of the goods’ channels of trade only slightly favors a finding of likelihood
of confusion.
Strength of Opposer’s Mark
Opposer argues under the fifth du Pont factor that its ANTIOXIDANT
SUPERPOWER mark should be deemed strong. The strength of a mark 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.
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 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”).
Commercial strength may be measured indirectly by the volume of sales and
advertising expenditures in connection with the goods or services 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 or services identified by the
marks; and the general reputation of the services. Bose Corp. v. QSC Audio Prods.
Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1308 (Fed. Cir. 2002) (recognizing indirect
Opposition No. 91230877

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evidence as appropriate proof of strength); Weider Publ’ns, LLC v. D & D Beauty Care
Co., 109 USPQ2d 1347, 1354 (TTAB 2014).
In assessing the overall strength of Opposer’s mark, we consider both the inherent
strength of the term ANTIOXIDANT SUPERPOWER based on the nature of the term
itself and its commercial strength, based on the marketplace recognition value of the
mark. See Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB
2006). We hereby take judicial notice of the following definitions of the terms
comprising Opposer’s mark:20
antioxidant – an enzyme or other organic substance, such as vitamin E
or beta carotene, that is capable of counteracting the damaging effects
of oxidation in animal tissues;21

superpower – an extremely powerful nation, especially one capable of
influencing international events and the acts and policies of less
powerful nations; power greater in scope or magnitude than that which
is considered natural or has previously existed.22

Opposer argues:
Opposer’s ANTIOXIDANT SUPERPOWER® Mark is strong. The
ANTIOXIDANT SUPERPOWER® Mark has been used consistently on
products which have been marketed and sold by POM Wonderful since
2005. (Flynn Aff. at ¶ 7). The ANTIOXIDANT SUPERPOWER® Mark
has appeared in print advertisements in numerous well known and
nationally published magazines. (Flynn Aff. at ¶¶ 13-14, Ex. F). Since
2014, the ANTIOXIDANT SUPERPOWER® Mark has been featured in
nationwide television commercials for POM Wonderful’s “Crazy

20 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac
v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have regular
fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014);
Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re
Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
21 Dictionary.com, based upon The Random House Unabridged Dictionary (2018).
22 Id.
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Healthy” advertising campaign for its 100% Pomegranate Juice. (Flynn
Aff. at ¶ 17).
Additionally, the ANTIOXIDANT SUPERPOWER® Mark has been
used in nationwide Internet advertisements, has appeared on
billboards, kiosks, and subway placards around the country, and has
been featured in radio spots in major city markets. (Flynn Aff. at ¶¶ 15,
16, & 18, Ex. G & H). Since 2009 alone POM Wonderful has spent over
$54 million on advertising its 100% Juice Products using the
ANTIOXIDANT SUPERPOWER® Mark. (Flynn Aff. at ¶¶ 19 & 33, Ex.
I). As a result of its extensive marketing, sales, and promotional efforts,
POM Wonderful has sold over 180 million bottles of its 100% Juice
Products between 2009 and 2017. (Id.)23

With regard to conceptual or inherent strength, the disclaimed term
ANTIOXIDANT in Opposer’s mark appears to be descriptive of a feature or
characteristic of its identified fruit juices, namely, that they contain enzymes,
vitamins or other organic substances that counteract the damaging effects of
oxidation. The term SUPERPOWER appears, at worst, to be suggestive of the benefit
of drinking Opposer’s fruit juices, namely, that they are a very high powered source
of vitamin E, beta carotene, or other enzymes, i.e., antioxidants. We find, as a result,
that the mark as a whole is somewhat suggestive of the identified goods, and thus
conceptually is somewhat weaker than an arbitrary mark.
With regard to commercial strength, Opposer argues that it has enjoyed
commercial success marketing its goods under the ANTIOXIDANT SUPERPOWER
mark, and has submitted confidential sales figures that are impressive. In addition,
its advertising expenditures from 2009 until January 2017 are considerable. As
discussed above, Opposer did not make its television advertisements of record.

23 15 TTABVUE 18.
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Nonetheless, Ms. Flynn has testified regarding Opposer’s network and cable
television advertisements on numerous stations, as well as its print and radio
advertisements of goods under its mark.24
We note that Opposer has not placed its sales and marketing figures and
advertising efforts in a context that would establish the strength of its mark relative
to other marks for the same goods. See Bose Corp. v. QSC Audio Prods., 63 USPQ2d
at 1309. These raw numbers of product sales and advertising expenditures and
assertions of media exposure demonstrate that Opposer has enjoyed substantial sales
of fruit juices under its ANTIOXIDANT SUPERPOWER mark, but such evidence
falls short of demonstrating the extent to which such sales and media exposure
translate into widespread recognition of the ANTIOXIDANT SUPERPOWER mark
among consumers of its goods, which appear to be the general public. Joseph Phelps
Vineyards, 122 USPQ2d at 1734. On the other hand, there is no evidence of use or
registration by third parties of similar marks, or other evidence that ANTIOXIDANT
SUPERPOWER is a weak mark entitled to only a narrow scope of protection.
Accordingly, we find on this record that Opposer clearly showed that the
ANTIOXIDANT SUPERPOWER mark is commercially strong for purposes of our
likelihood of confusion determination notwithstanding its conceptual weakness and
that the mark is therefore entitled to a somewhat broader scope of protection than
might be accorded a mark with less recognition. This du Pont factor weighs in favor
of a finding of likelihood of confusion.

24 12 TTABVUE 4-6.
Opposition No. 91230877

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B. Comparison of the Marks
We next consider the similarity or dissimilarity of the parties’ marks in their
entireties as to appearance, sound, connotation and commercial impression. Stone
Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,
1160 (Fed. Cir. 2014); In re E. I. du Pont De Nemours & Co., 177 USPQ at 567; Palm
Bay Imports, 73 USPQ2d at 1692.
Applicant’s mark, SUPERPOWER in standard characters is encompassed by
Opposer’s mark ANTIOXIDANT SUPERPOWER. While there is no rule that
likelihood of confusion automatically applies where one mark encompasses another,
in many cases the fact that an applicant’s entire mark is incorporated in the opposer’s
mark increases the similarity between the two. “Likelihood of confusion often has
been found where the entirety of one mark is incorporated within another,” Hunter
Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660 (TTAB 2014), because “the presence
of an additional item in the mark does not necessarily eliminate the likelihood of
confusion if some terms are identical.” In re Mighty Tea Leaf, 601 F.3d 1342, 94
USPQ2d 1257, 1260 (Fed. Cir. 2010) (applicant’s mark ML is similar to registrant’s
mark ML MARK LEES); In re U.S. Shoe Corp., 229 USPQ 707, 709 (TTAB 1985)
(finding applicant’s CAREER IMAGE marks similar to registered mark CREST
CAREER IMAGES). The marks are similar to the extent that the second word in
Opposer’s mark, namely SUPERPOWER, forms Applicant’s entire mark. We are
mindful, however, that our analysis cannot be based on a dissection of the involved
marks into their various components. See Jack Wolfskin Ausrustung Fur Draussen
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GmbH KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129,
1134 (Fed. Cir. 2015). As the Federal Circuit has declared:
The relevant DuPont factor requires examination of “the similarity or
dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression.” DuPont, 476 F.2d at 1361. As
is apparent from the plain language of this factor, marks must be viewed
“in their entireties,” and it is improper to dissect a mark when engaging
in this analysis, including when a mark contains both words and a
design. In re Shell Oil Co., 992 F.2d 1204, 1206 [26 USPQ2d 1687] (Fed.
Cir. 1993) (“The marks are considered in their entireties, words and
design.”). Although the court may place more weight on a dominant
portion of a mark, for example if another feature of the mark is
descriptive or generic standing alone, the ultimate conclusion
nonetheless must rest on consideration of the marks in total.

In re Viterra, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012).

The marks obviously differ in appearance and pronunciation as a result of the
presence of the term ANTIOXIDANT in Opposer’s mark. As discussed above,
ANTIOXIDANT is descriptive of a characteristic or feature of Applicant’s goods, and
thus is less distinctive than the slightly suggestive term SUPERPOWER. On the
other hand, the significance of the term ANTIOXIDANT in Opposer’s mark is
reinforced by its location as the first word thereof. Presto Prods. Inc. v. Nice-Pak
Prods., Inc., 9 USPQ2d 1895, 1897) TTAB 1988) (“it is often the first part of a mark
which is most likely to be impressed in the mind of a purchaser and remembered”);
Johnson Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ 155, 156 (TTAB 1982) (EBONY for
cosmetics and EBONY DRUM for hairdressing and conditioner); In re South Bend
Toy Mfg. Co., Inc., 218 USPQ 479, 480 (TTAB 1983) (LIL’ LADY BUGGY for toy doll
carriages and LITTLE LADY for doll clothing).
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Overall, there are clear differences in how the marks look and sound. The marks
further are somewhat different in meaning. Based upon the above definitions of the
words comprising Opposer’s mark, and in the context of the parties’ identified goods,
SUPERPOWER alone connotes, inter alia, an entity, real, juristic or political,
possessing greater power than is normally considered natural. ANTIOXIDANT
SUPERPOWER connotes organic substances such as enzymes, beta carotene or
vitamin E possessing greater than normal power to counteract the effect of oxidation
on animal tissues. Thus, the plain meaning of Applicant’s mark is somewhat different
from the meaning that may be ascribed to Opposer’s mark.25 As a result, the marks
are only somewhat similar in connotation.
Overall, the dissimilarity in the appearance and sound of the marks and the
dissimilarity of their meanings results in the marks’ being only somewhat similar in
those regards and conveying only somewhat similar commercial impressions. This du
Pont factor weighs slightly in favor of a finding of likelihood of confusion. Palm Bay
Imps., 73 USPQ2d at 1692.
C. Consumer Sophistication
Opposer argues that the parties’ goods are relatively inexpensive and may be
subject to casual purchase. Ms. Flynn testifies that Opposer’s goods sell for $2.49 to

25 We agree with Opposer that Applicant’s arguments and evidence based upon its trade dress
regarding the asserted Cold War connotations of its mark are not persuasive inasmuch as we
determine the similarity of the marks based upon the marks themselves and not on matter
extraneous thereto. Stone Lion, 110 USPQ2d at 1160.
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$9.99.26 Mr. Lin testifies that Applicant’s goods sell for $7 at Applicant’s taproom.27
Certainly these are not expensive goods and we agree with Opposer that they may be
subject to casual purchase by consumers, including casual beer drinkers who do not
necessarily discriminate between beer choices, and casual purchasers of fruit juices.
Moreover, the applicable standard of care is that of the least sophisticated consumer.
Stone Lion, 110 USPQ2d at 1162-1164. Both parties market to the general public. We
find this fourth du Pont factor to favor a finding of likelihood of confusion.
D. Actual Confusion
Opposer argues that while there is no evidence of actual confusion, there has been
little opportunity for it to occur. In that regard, it has often been recognized that such
evidence is very difficult to obtain. Lebanon Seaboard Corp. v. R&R Turf Supply Inc.,
101 USPQ2d 1826, 1834 (TTAB 2012). Second, it is not necessary to show actual
confusion in order to establish likelihood of confusion. See Weiss Assocs. Inc. v. HRL
Assocs. Inc. 902 F.2d 1546, 223 USPQ 1025 (Fed. Cir. 1990). The test under Section
2(d) is not actual confusion but likelihood of confusion. See Majestic Distilling Co., 65
USPQ2d at 1205 (“uncorroborated statements of no known instances of actual
confusion are of little evidentiary value.”). See also In re Kangaroos U.S.A., 223
USPQ 1025 (TTAB 1984); and In re Gen. Motors Corp., 23 USPQ2d 1465 (TTAB
1992). We find this du Pont factor to be neutral.

26 12 TTABVUE 6.
27 14 TTABVUE 6.
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V. Summary
We have considered all of the arguments and evidence of record, including those not
specifically discussed herein, and all relevant du Pont factors. “[A]nalysis under
DuPont requires a balancing of the relevant factors.” Majestic Distilling, 65 USPQ2d
at 1027. We find that while the goods are inexpensive and Opposer’s mark is
commercially strong, the marks are only somewhat similar in appearance,
sound, connotation, and commercial impression. Most significantly in our weighing
of the du Pont factors, Opposer has failed to show on this record that fruit juices are
sufficiently related to beer, notwithstanding that the goods may move in at least one
common channel of trade and are offered to the same classes of consumers. On
balance, and taking into account the totality of the evidence of record, we find that
Opposer has failed to prove by a preponderance of the evidence that consumers who
are familiar with Opposer’s ANTIOXIDANT SUPERPOWER mark for fruit juices
are likely to mistakenly believe that Applicant’s SUPERPOWER beer originates
with, or is sponsored or authorized by, Opposer under Section 2(d) of the Trademark
Act.
Decision: The opposition is dismissed.