Ayurvedic Concepts, Ltd.

Trademark Trial and Appeal Board

Dec 5, 2008

No. 78800436 (T.T.A.B. Dec. 5, 2008)

Mailed:
December 5, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Ayurvedic Concepts, Ltd.
________

Serial No. 78800436
_______

John S. Egbert of Egbert Law Offices, PLLC for Ayurvedic
Concepts, Ltd.

Marilyn D. Izzi, Trademark Examining Attorney, Law Office
112 (Angela Bishop Wilson, Managing Attorney).
_______

Before Taylor, Bergsman and Ritchie, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Ayurvedic Concepts, Ltd., dba Himalaya USA
(“applicant”), filed an intent-to-use application to
register the mark EVECARE, in standard character form, for
“nutritional supplements,” in Class 5.
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s
mark is likely to cause confusion with the mark EVECARE and
design, shown below, for “body and beauty care cosmetics,”
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78800436
2
in Class 3.1 The registrant described its mark as the
stylized word “evecare.”

Our determination of likelihood of confusion under
Section 2(d) is based on an analysis of all of the
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). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The
fundamental inquiry mandated by §2(d) goes to the
cumulative effect of differences in the essential
characteristics of the goods and differences in the
marks”).

1 Registration No. 3171445, issued November 14, 2006.
Serial No. 78800436
3
A. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We turn first to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
De Nemours & Co., supra. In a particular case, any one of
these means of comparison may be critical in finding the
marks to be similar. In re White Swan Ltd., 9 USPQ2d 1534,
1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042
(TTAB 1988). In comparing the marks, 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 similar in terms of their overall commercial
impression so that confusion as to the source of the goods
offered under the respective marks is likely to result.
San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735,
1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir.
June 5, 1992). The proper focus is on the recollection of
the average customer, who retains a general rather than a
specific impression of the marks. Winnebago Industries,
Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB
Serial No. 78800436
4
1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
108 (TTAB 1975). In this case, the relevant public is
consumers of nutritional supplements and cosmetics.
While the marks must be compared in their entireties,
in analyzing the similarity or dissimilarity of two marks,
there is nothing improper in stating that for rational
reasons, more or less weight has been given to a particular
feature of a mark. In re National Data Corporation, 753
F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). In the case
of marks consisting of words and a design, the words are
normally given greater weight because they would be used by
consumers to request the products. In re Dakin’s
Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999); In re
Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987).
In this case, the word “Evecare” is the dominant
element of the mark in the cited registration. The design
element is a leaf that serves as the background for the
“Eve” portion of “Evecare.” Indeed, the registrant
identifies its mark as the stylized version of the word
“Evecare.” Inasmuch as applicant’s mark is EVECARE, the
applicant’s mark is identical to the dominant part of the
registered mark.
Applicant, however, contends that the marks engender
different commercial impressions.
Serial No. 78800436
5
The falling leaf appearing under the
“EVE” portion of the registrant’s mark
obviously invokes an image of Eve, the
Garden of Eden, and the story of Eve
eating from the Tree of Knowledge. The
youth, beauty and innocence of Eve fits
in with the cosmetic and skin care
products sold by the cited registrant.
On the other hand, Applicant’s
“EVECARE” word mark as used on vitamin
supplements would not give a consumer
the same commercial impression.
Instead, the consumer would likely
interpret Applicant’s mark as a
combination of the words “evening” and
“care.”2

Because the word portions of the marks are identical
and because a side-by-side comparison is the not the test,
the marks are substantially similar in appearance, sound,
meaning and commercial impression. The differences, if
any, in the commercial impressions engendered by the marks
would likely come into play only in connection with a side-
by-side comparison of the marks. However, even if the
marks are compared side-by-side, the marks engender the the
same commercial impression because the word “Evecare” is
the dominant portion of the registered mark. In any event,
applicant has not submitted any evidence demonstrating that
the marks engender different commercial impressions.
Thus, in considering the marks in their entireties, we
find that the marks are very similar.

2 Applicant’s Brief, p. 9.
Serial No. 78800436
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B. The similarity or dissimilarity and nature of the
goods described in the application and registration.

Having found that applicant’s mark is very similar to
registrant’s mark, we turn to the similarity or
dissimilarity and nature of applicant’s nutritional
supplements and the registrant’s cosmetics. It is not
necessary that these goods be identical or even competitive
to support a finding of likelihood of confusion. Rather,
it is sufficient that the goods are related in some manner,
or that the circumstances surrounding their marketing are
such, that they would be encountered by the same persons in
situations that would give rise, because of the marks, to a
mistaken belief that they originate from the same source or
that there is an association or connection between the
sources of the goods. See In re Opus One, Inc., 60 UPSQ2d
1812, 1815 (TTAB 2001); In re Melville Corp., 18 USPQ2d
1386, 1387 (TTAB 1991).
Moreover, the greater the degree of similarity between
the applicant’s mark and the cited registered mark, the
lesser the degree of similarity between the applicant’s
goods and registrant’s goods that is required to support a
finding of likelihood of confusion. In re Opus One, Inc.,
60 UPSQ2d at 1815; In re Concordia International Forwarding
Corp., 222 USPQ 355, 356 (TTAB 1983). Where, as in this
Serial No. 78800436
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case, the applicant’s mark is substantially similar to the
registrant’s mark, there need only be a viable relationship
between the goods to find that there is a likelihood of
confusion. See In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1689 (Fed. Cir. 1993) (“even when the goods or
services are not competitive or intrinsically related, the
use of identical marks can lead to the assumption that
there is a common source”); In re Concordia International
Forwarding Corp., 222 USPQ2d at 356.
To show that nutritional supplements and cosmetics are
related products, the Examining Attorney submitted 25 third-
party registrations, based on use in commerce, encompassing
both products. Although these registrations are not
evidence that the marks in the third-party registrations are
in use or that the public is familiar with them, they
nevertheless have probative value to the extent that they
may serve to suggest that the goods listed in the
registrations (i.e., nutritional supplements and cosmetics)
may emanate from a single source.3 In re Infinity
Broadcasting Corp. of Dallas, 60 USPQ2d 1214, 1217-1218

3 The Examining Attorney submitted copies of two-third party
applications listing both products in the description of goods.
Pending applications have no probative value in this appeal. The
applications are evidence only that they have been filed.
Interpayment Services ltd. v. Docters & Thiede, 66 USPQ2d 1463,
1467 n.6 (TTAB 2003).
Serial No. 78800436
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(TTAB 2001); In re Albert Tostel & Sons Co., 29 USPQ2d 1783,
1785-1786 (TTAB 1993); In re Muck Duck Mustard Co. Inc., 6
USPQ2d 1467, 1470 (TTAB 1988).
Applicant contends that the third-party registrations
“should not hold as much probative value as is being sought
by the Examiner” and that “any conclusions derived from
reliance on third-party registrations in order to determine
that the goods are closely related should not go too far.”4
By submitting the third-party registrations, the
Examining Attorney is essentially asking us to draw the
inference that when different products are listed in the
same registration, those products may emanate from a single
source. Applicant may rebut this inference with evidence
(e.g., a declaration from counsel or a paralegal that
he/she investigated the use of the marks in the third-party
registrations and could not find any evidence that the
registrants used the marks on both of the products at issue
and/or an equal or greater number of third-party
registrations owned by different entities for the same or
similar marks where each entity has registered its mark for
one of the goods at issue). In this case, applicant did
not submit any evidence and simply asserted that contra to

4 Applicant’s Brief, pp. 4-5.
Serial No. 78800436
9
our well settled practice, we should not consider the
third-party registrations. Suffice it to say that we give
the third-party registrations the probative value to which
they are entitled and as noted above, applicant presented
no evidence to rebut the inference.
The Examining Attorney also submitted excerpts from
websites selling both nutritional supplements and
cosmetics.5 The excerpt from the Medicalpoint website
(medicalpoint.com) has a headline or title “Natural
Supplements/Cosmetics.”6 The excerpt has information
explaining that Lifetime Health, Australia’s leading brand
of vitamins and minerals, sells a wide variety of cosmetics
and vitamin supplements under the “Natural Life” trademark.
The excerpt from the Murad website (murad.com) shows
that Murad sells supplements, moisturizers, and cleansers
under the MURAD mark.

5 The excerpt from the Bliss website (blissword.com) has no
probative value because it only displays nutritional supplements.
There is nothing presented in that excerpt from which we can
glean that the website owner also sells cosmetics. The Examining
Attorney should have submitted a second page displaying
cosmetics, assuming such a page existed.
6 Although this is a website of a company from Australia, the
excerpt provides information regarding the exchange rate between
the Australian dollar and the U.S. dollar from which we can infer
that this company is also attempting to do business in commerce
with the United States.
Serial No. 78800436
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The Examining Attorney submitted three relevant news
articles retrieved from the LexisNexis database showing a
relationship between cosmetics and nutritional supplements.7
1. “Cosmetic treatments include
supplements”

Times-Picayune, March 23, 2008

Cosmetic treatments are no longer just
about creams and emollients . . . The
latest thing is “ingestibles,”
supplements such as omega-3 oils, alpha
lipoic acid, grape seed, pomegranate
extract and many other nutritional-
sounding words you never used to hear
at the cosmetic counter.

* * *

Here’s a closer look at beauty
ingestibles, which hope to capture a
significant share of the $45-billion-a-
year cosmetic and skin care market.

2. “A SNACK for the SKIN”

The News Journal, March 18, 2008

This is a story regarding a Minneapolis
company, Intelligent Nutrients, which
manufactures both cosmetics and
supplements.

3. “Direct Selling Stocks”

A blog by Stockerblog, March 15, 2008.

The excerpt from this blog identified a
number of companies that manufacture
both nutritional supplements and
cosmetics or personal care products

7 The Examining Attorney submitted 8 total articles of which only
3 were relevant.
Serial No. 78800436
11
(e.g., Herbalife, Ltd, Nu Skin
Enterprises Inc., USANA Health Sciences
Inc., Manatech Inc., and Nature’s
Sunshine Products Inc.).

The Examining Attorney also submitted an excerpt from
the SEC 10-K405 filing by Beauticontrol Inc. that
identified itself as a manufacturer and direct seller of,
inter alia, skin care products, cosmetics, and nutritional
supplements.
Finally, the Examining Attorney submitted an excerpt
from the NPI Center website (npicenter.com) reviewing the
September 2008 Health & Beauty America conference, a
cosmetic trade show.
Perhaps the most interesting
development in the cosmetics industry
this year was illustrated in the form
of three sessions focusing on
nutritional supplements (or
“nutriceuticals”), which were carefully
programmed to address beauty from the
inside out.

* * *

Nutritional supplement companies are
clamoring to exploit the growth
opportunities in the faster-growing
personal care market in an attempt to
mitigate the effects of their mature
market, while personal care companies
are looking for ways to work with
supplement companies to penetrate a
marketplace seemingly ripe with
opportunity.

Serial No. 78800436
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The evidence submitted by the Examining Attorney
convinces us that nutritional supplements and cosmetics are
related products manufactured by the same companies and
that they are complementary products used together in a
personal care regimen.
C. The similarity or dissimilarity of likely-to-continue
trade channels and classes of consumers.

In addition to the evidence already discussed, the
Examining Attorney also submitted excerpts from the Edible
Nature website (ediblenature.com) and the Smarter website
(smarter.com) showing these two online retailers
advertising the sale of cosmetics and nutritional
supplements. Accordingly, there is evidence of four online
retailers selling cosmetics and nutritional supplements.
Moreover, the “Cosmetic treatments include
supplements” article in the Times-Picayune, and the review
of the September 2008 Health & Beauty America conference
discuss the merging of the cosmetic (or personal care
products) and nutritional supplements markets. In the
Times Picayune article, the author reports that
“Perricone’s line of supplements is sold at stores such as
Sephora,” a cosmetics retailer, as is the Dr. Murad line of
supplements, and the review of the September 2008 Health &
Beauty America conference reports that there is a growing
Serial No. 78800436
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cross-over market between nutritional supplements and
cosmetics.
Beautycontrol Inc. provided the following information
in its SEC filing:
The cosmetic and nutritional supplement
industries are highly fragmented and
competitive markets which are sensitive
to changing consumer preferences and
demands. There are many large and well
known companies that manufacture and
sell broad lines of skin care, cosmetic
products and nutritional supplements
through retail establishments. The
company competes with a number of
direct sales companies who market skin
care and cosmetic products and
nutritional supplements.

Because there are no limitations as to channels of
trade or classes of purchasers in the description of goods
for either the application or the cited registration, it is
presumed that the identified products move in all channels
of trade normal for nutritional supplements and cosmetics,
and that those products are available to all classes of
purchasers for the listed goods. See In re Linkvest S.A.,
24 USPQ2d 1716, 1716 (TTAB 1992). Applicant’s argument
that the sales of supplements are limited to health food
stores, general nutrition stores and the over-the-counter
drug section of general drug stores while the sale of
cosmetics is limited to retail beauty supply stores is not
supported by any evidence, contradicted by the evidence
Serial No. 78800436
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submitted by the Examining Attorney, and may not be
considered because of the legal presumption noted above.
In view of the foregoing, we find that nutritional
supplements and cosmetics move in the same channels of
trade and are sold to the same classes of consumers.
D. The conditions under which and buyers to whom sales
are made (i.e., “impulse” vs. careful, sophisticated
purchasing).

Applicant contends that its nutritional supplements
are purchased by sophisticated purchasers who exercise
extra care because the products are ingested to supplement
daily food intake to develop a more healthy mind and body.
In other words, “consumers are vividly aware of what they
put into their body (sic).”8 Assuming this to be true,
these circumstances may aggravate rather than mitigate the
likelihood of confusion. If a purchaser of nutritional
supplements is aware of the reputation of applicant, upon
encountering a substantially similar mark for related and
complementary cosmetics, that consumer may believe that
he/she is dealing with applicant. On the other hand,
cosmetics are bought by everyone, and a consumer who had a
good experience with EVECARE and design cosmetics upon

8 Applicant’s Brief, pp. 10-11.
Serial No. 78800436
15
encountering EVECARE supplements may mistakenly believe
that the products emanate from a single source.
In any event, the fact applicant’s consumers may be
sophisticated about nutritional supplements, does not mean
that they are sophisticated and knowledgeable about
trademarks, or have such good memories for the minimal
differences between the marks at issue, that they could
differentiate between respective marks or appreciate that
similarity does not imply some kind of business
relationship or affiliation. See Hydrotechnic Corp. v.
Hydrotech International, Inc., 196 USPQ 387, 392-393 (TTAB
1977); Refreshment Machinery Inc. v. Reed Industries, Inc.,
196 USPQ 840, 843 (TTAB 1977) (selling to a sophisticated
purchaser does not automatically eliminate the likelihood
of confusion because “[i]t must also be shown how the
purchasers react to trademarks, how observant and
discriminating they are in practice, or that the decision
to purchase involves such careful consideration over a long
period of time that even subtle differences are likely to
result in recognition that different marks are involved”).
E. Balancing the factors.

In view of the facts that the marks are very similar,
the goods are related, and the goods move in the same
channels of trade and are sold to the same classes of
Serial No. 78800436
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consumers, we find that applicant’s registration of the
mark EVECARE for nutritional supplements is likely to cause
confusion with the registered mark EVECARE and design for
body and beauty care cosmetics.
Decision: The refusal to register is affirmed.