Chattem, Inc.v.Kirk Seubert and James Spencer

Trademark Trial and Appeal Board

Nov 29, 2013

No. 91200421 (T.T.A.B. Nov. 29, 2013)

Mailed:
November 29, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Chattem, Inc.

v.

Kirk Seubert and James Spencer
_____

Opposition No. 91200421
to application Serial Nos. 85217060 and 85217088
filed on January 13, 2011
_____

Douglas T. Johnson of Miller & Martin PLLC for Chattem,
Inc.

Nancy Lord of Nancy Lord Ltd for Kirk Seubert and James
Spencer.
______

Before Seeherman, Taylor and Wolfson, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

On January 13, 2011, Kirk Seubert and James Spencer,
two individuals filing as joint applicants, filed intent-
to-use applications to register the mark ACTRX in standard
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91200421
2
characters1 and in stylized form, as shown below,2 for
“dietary and nutritional supplements; nutritional
supplement for eliminating toxins from the body;
nutritional supplements.”

Signal Investment & Management Co. (hereafter
“Signal”) filed a notice of opposition to the registration
of the marks; subsequently this company advised the Board
that it had merged with and into Chattem, Inc. (hereafter
“Chattem”). The Board then substituted Chattem as the
opposer. Hereafter, unless specifically noted, “opposer”
will be used to refer to both Signal and to Chattem.
As grounds for opposition, opposer has alleged that it
is the owner of registrations for the mark ACT for an anti-
cavity mouth rinse3 and ACT RESTORING, with RESTORING

1 Application Serial No. 85217060.
2 Application Serial No. 85217088. The application includes the
following description of the mark: The mark consists of the
letters “A”, “C”, and “T” in green, block type and slightly
slanted with the “A” larger than the “C” and the “T”, followed by
the letters “R”, and “X” in blue and slightly slanted with “R”,
and “X” in blue and slightly slanted with “R” larger than the “X”
and the “X” as a subscript.
The color(s) green, blue is/are claimed as a feature of the mark.
3 Registration No. 2988776, issued August 30, 2005; Section 8
affidavit accepted; Section 15 affidavit acknowledged. The
notice of opposition included, as an exhibit, the electronic
record of this registration, showing status and title in Signal
Investment & Management Co., the entity that filed the
Opposition No. 91200421
3
disclaimed, for anti-cavity mouthwash and dental rinse4;
that it, its licensees and predecessors have been
manufacturing, licensing and marketing anti-cavity mouth
rinses and mouth washes under the ACT mark since as early
as April 1982; that since long prior to the January 13,
2011 filing date of applicants’ applications opposer has
sold anti-cavity mouth rinses under the mark ACT; that
opposer sells a variety of anti-cavity mouth rinses and
anti-cavity mouthwashes under the mark ACT; that opposer’s
ACT mouthwashes and rinses are one of the top five brands
in this category; that because of the similarities in the
marks and the goods and trade channels, applicants’ marks
are likely to cause confusion or mistake or to deceive;

opposition. Accordingly, the registration is of record pursuant
to Trademark Rule 2.122(1). With its motion to substitute
Chattem Inc. as a party, opposer submitted a copy of the articles
of merger by which Signal Investment & Management Co. was merged
into Chattem Inc., and an electronic copy of the registration,
showing ownership in Chattem, Inc.
4 Registration No. 3317340, issued October 23, 2007. The notice
of opposition included, as an exhibit, the electronic record of
this registration, showing status and title in Signal Investment
& Management Co., the entity that filed the opposition.
Accordingly, the registration is of record pursuant to Trademark
Rule 2.122(1). With its motion to substitute Chattem Inc. as a
party, opposer submitted a copy of the articles of merger by
which Signal Investment & Management Co. was merged into Chattem
Inc., and an electronic copy of the registration, showing
ownership in Chattem, Inc. At the time the notice of opposition
was filed, and at the time the updated status and title copy of
the registration was submitted, the registration was not due for
the filing of a Section 8 affidavit. In accordance with Board
practice, we have ascertained that a Section 8 affidavit for the
registration has now been accepted, and a Section 15 affidavit
has been acknowledged.
Opposition No. 91200421
4
that opposer’s mark ACT became famous prior to the filing
of the applications for applicants’ marks, and that
applicants’ ACTRX marks are likely to dilute by blurring
the distinctiveness of opposer’s ACT marks.5
Applicants have denied the salient allegations of the
notice of opposition, and have asserted what they
characterize as “affirmative defenses.” Paragraph 24
appears to be an admission regarding opposer’s use of the
mark ACT in its advertising rather than being an
affirmative defense: “opposer uses the mark ACT in all
commercially significant advertising and promotion of its
anti-cavity mouth wash, mouth wish [sic], and dental
rinse.” Paragraph 25 appears to be an attack on the
registrations, asserting that the marks “have lost the
ability to serve as source identifiers for Opposer.”
However, because applicants have not counterclaimed to
cancel the registrations, this assertion can be given no
consideration. Paragraph 26 is a denial that opposer’s
pleaded marks are famous for purposes of proving dilution
(in effect, a repetition of the denial of this allegation

5 We note that opposer claimed that its ACT mark (singular)
became famous prior to the filing of applicants’ applications and
prior to any use of applicants’ marks, ¶ 23, but asserted
dilution of opposer’s ACT marks (plural). ¶ 24.

Opposition No. 91200421
5
in the notice of opposition). Thus, we do not consider
these assertions to be valid affirmative defenses.
In considering what material is of record, we first
address opposer’s objections to applicants’ notice of
reliance. Opposer argues that the notice of reliance was
untimely because it was filed after the close of
applicants’ testimony period, and therefore should not be
considered. The Board’s April 16, 2013 order set May 26,
2013 as the date for applicants’ trial period to close.
That date was a Sunday, and Monday, May 27, was Memorial
Day, a Federal holiday. Therefore, in accordance with
Trademark Rule 2.196, applicants had until Tuesday, May 28,
to file their notice of reliance. (“When the day, or the
last day fixed by statute or by regulation under this part
for taking any action or paying any fee in the Office falls
on a Saturday, Sunday, or Federal holiday within the
District of Columbia, the action may be taken, or the fee
paid, on the next succeeding day that is not a Saturday,
Sunday, or a Federal holiday.”)6 Applicants filed their
notice of reliance on Wednesday, May 29, 2013, one hour
after the midnight deadline. In their notice, applicants
requested a one hour extension of their testimony period,

6 Opposer has misstated the deadline for filing the notice of
reliance as May 27, apparently not realizing that May 27, 2013
was Memorial Day.
Opposition No. 91200421
6
explaining that their attorney lives in a rural town in
Nevada and had technological issues that required a 150-
mile round trip into Las Vegas for equipment and delayed
the filing until after 9:00 pm Pacific Time, resulting in
the filing of the document after midnight in Washington,
DC.
Given the circumstances, including the de minimis
delay, we find that applicants have met the standard for
excusable neglect, and we hereby reopen their testimony
period so that the filing of the notice of reliance will be
treated as timely. See FirstHealth of the Carolinas Inc.
v. CareFirst of Maryland Inc., 479 F.3d 825, 81 USPQ2d
1919, 1921 (Fed. Cir. 2007) (Board has discretion to
reasonably interpret the meaning of “excusable neglect” in
the context of its own regulations).
Opposer also objects that, although “the Notice
purports to make of record some 36 official records and
publications, yet only three publications are attached as
exhibits.” Brief, p. 3. In actuality, the notice of
reliance lists, under “1. Official Records of the United
States Patent and Trademark Office,” 30 application serial
numbers and marks, and the registration numbers for those
marks that have been registered. However, as opposer has
pointed out, the applications and/or registrations
Opposition No. 91200421
7
themselves have not been submitted. Applicants did not
attempt to submit the documents when this was brought to
their attention by opposer’s objection, nor do we have any
explanation from applicants as to why the documents were
not submitted, since applicants did not submit a trial
brief. Clearly we cannot consider evidence that was never
made of record, and to this extent, opposer’s objection is
sustained. As for the remaining documents, listed as “2.
Printed publications from the Internet,” one of the
documents (Exhibit EE), purporting to show opposer’s use of
its mark, does not include the URL and the date it was
printed, and therefore does not meet the requirements for
making Internet material of record by notice of reliance.
Safer Inc. v. OMS Investments Inc., 94 USPQ2d 1031 (TTAB
2010).7

7 Even if this document were properly of record, it would not
affect our decision herein. Applicants state in their notice of
reliance that this exhibit, EE, shows the opposer’s mark in
several colors, and exhibits FF and GG “show its blatant
infringement with Wal-mart’s Equate product that the Opposer has
done nothing to abate.” Although applicants did not file a
brief, and therefore have not further explained their position,
it appears that they are making some sort of laches claim
regarding opposer’s asserted inaction with respect to the
activities of a third party. Applicants never asserted laches as
an affirmative defense and, therefore, to the extent they were
attempting to raise such a claim in their notice of reliance, it
is untimely. We also point out that a party cannot claim that a
plaintiff is barred by laches from taking action against a
defendant based on a claim of inaction by the opposer toward a
third party.
Opposition No. 91200421
8
The record, then, includes the pleadings; the files of
the opposed applications; and the testimony of Andrea
Crouch, vice president of brand management for opposer
Chattem. Opposer also made of record, through its first
notice of reliance, its requests for admission served on
applicants; because applicants failed to answer them, they
are deemed to be admitted. See Fed. R. Civ. P. 36(a)(3):
“A matter is admitted unless, within 30 days after being
served, the party to whom the request is directed serves on
the requesting party a written answer or objection
addressed to the matter and signed by the party or its
attorney.” Applicants do not contend that they served
responses to the requests for admission, nor have they
moved to withdraw or amend the deemed admissions. Thus,
the requests for admission submitted with opposer’s first
notice of reliance are deemed admitted. With its second
notice of reliance, opposer submitted specimens from the
file of a third party’s registration for DENTAPLEX, as well
as a copy of the registration certificate; and pages from
various websites, for the purpose of showing the meaning of
Rx and the sale of nutritional and dietary supplements for
oral health.
Opposition No. 91200421
9
Applicants did not take any testimony.8 As discussed
infra, the documents it submitted by notice of reliance,
and which were acceptable to be made of record by this
means, are their exhibits FF and GG, which are webpages
from the Walmart.com website.
Only opposer filed a brief.
Standing
As noted, the opposition was brought by Signal which,
at the time the notice of opposition was filed, was the
owner of the pleaded registrations. Patent and Trademark
Office records show that this company merged into Chattem
in 2012. Andrea Crouch, Chattem’s vice president of brand
management, testified that Chattem acquired the ACT brand
from Johnson and Johnson in 2007, and she was not aware of
any company called Signal. There is no further explanation
about the relationship between Signal and Chattem, such as,
for example, that it was operating as part of Chattem in
such a way that Ms. Crouch would not have been aware that
it was a separate company. What is clear is that Signal
owned the registrations for the marks at the time the
oppositions were filed, that Chattem now owns the

8 Their notice of taking testimony of applicant James Spencer by
written questions was the subject of opposer’s motion to quash.
Because applicants did not respond to this motion, it was granted
as conceded.

Opposition No. 91200421
10
registration through the merger of Signal into Chattem, and
that Chattem’s activities in marketing and selling the ACT-
branded products were for the ACT marks owned by Signal at
one time. See Somerset Distilling Inc. v. Speymalt Whisky
Distributors Ltd., 14 USPQ2d 1539, 1541 (TTAB 1989)
(although witness’s testimony failed to delineate
relationship between owner of registration and opposer, it
is clear that the sales and promotion of the trademarked
products referred to the mark owned by opposer). Because
both Signal and Chattem have shown that at the time Signal
brought this proceeding, and during Chattem’s prosecution
of it, they were not mere intermeddlers, they each have
established their standing. See Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000);
Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d
1024, 213 USPQ 185 (CCPA 1982).
Priority
Because opposer has made its pleaded registrations of
record, priority is not in issue. See King Candy Company
v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108
(CCPA 1974). Moreover, opposer has established its earlier
use. Opposer has shown that its predecessor-in-interest,
Johnson and Johnson, introduced ACT oral care products in
the early 1980s, far earlier than the January 13, 2011
Opposition No. 91200421
11
filing date of applicants’ applications which, in the
absence of any evidence as to applicants’ use, is the
earliest date on which they can rely.
Likelihood of Confusion
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003).
We begin with the factor of fame, since fame of the
prior mark plays a dominant role in cases featuring a
famous or strong mark. Kenner Parker Toys Inc. v. Rose Art
Industries Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed.
Cir. 1992). Opposer did not acquire the mark ACT until
2007, and did not provide sales and advertising figures
prior to that time. However, it did submit limited
evidence showing that the mark ACT was first used by
Johnson and Johnson in the early 1980s, and was promoted by
that company; specifically, opposer submitted ads and press
releases from the Johnson and Johnson files, including an
ad in the November/December 2004 Journal of Practical
Hygiene and Oral Hygiene, an ad from May 2004 in
Opposition No. 91200421
12
Parents.Com, and a press release, dated January 20, 2004,
announcing a relationship with celebrity spokesperson Lisa
Rinna in connection with the launch of its ACT Plus
Freshening product.
Sales of ACT oral care products were $62 million in
2008, $72 million in 2009, $75 million in 2010, $76 million
in 2011 and $81 million in 2012, while opposer’s
advertising expenditures for those years were,
respectively, $8 million, almost $13 million, $11 million,
$10 million and $11 million. Ms. Crouch testified that
advertising is primarily done through television, but that
opposer also uses print advertising, radio and digital
media. Opposer promotes its ACT products to dentists and
dental hygienists using direct mail, print ads in
professional journals, exhibits at trade shows, and samples
provided to dentists. Approximately $800,000 of its sales
come through professional coupons that dentists give their
patients, and opposer also sells about $2 million worth of
products directly to dental offices.
Opposer’s witness testified that ACT oral care
products are among the leading brands in the industry; in
retail sales, it ranks at either three or four in the
category, with LISTERINE being number one, CREST number
two, and ACT and SCOPE battling it out for numbers three
Opposition No. 91200421
13
and four. Ms. Crouch also testified, in terms of dental
professionals, that ACT is the number one fluoride
mouthwash recommended by dentists and dental hygienists,
test., p. 14, although she did not give any details as to
how that information was obtained.
Although opposer’s sales and advertising figures for
2012 and the preceding four years are in the millions, raw
numbers alone are not necessarily sufficient to prove fame,
since such figures may be misleading. See Bose Corp. v.
QSC Audio Products Inc., 293 F.3d 1367, 63 USPQ2d 1303,
1309 (Fed. Cir. 2002). For example, the ranking of ACT
products at either three or four for retail sales could
represent a limited market share, as compared with the
brands ranking number one and number two. Opposer has not
provided evidence of its actual market share, so that we
would have some context for its sales ranking and sales
figures. Opposer’s evidence regarding its promotional
efforts is quite limited; although Ms. Crouch testified in
general terms that “We primarily use television
advertising, but we’ve also used print advertising, radio,
digital, and then we have an important professional effort,
as well,” p. 8, opposer did not present details about its
advertising to the general public, such as number of
minutes of television advertising in a year, the television
Opposition No. 91200421
14
channels and programs on which the ads appeared, the
publications and dates of its print advertising, etc.9
Because of the extreme deference that we accord a famous
mark in terms of the wide latitude of legal protection it
receives, and the dominant role fame plays in the
likelihood of confusion analysis, it is the duty of the
party asserting that its mark is famous to clearly prove
it. Edward Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d
1399, 1408 (TTAB 2010); Leading Jewelers Guild Inc. v. LJOW
Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007). We find
that opposer has not met its burden of proving that the ACT
mark is famous.10 However, the evidence that it has
submitted, along with the fact that ACT is an arbitrary
term for mouthwashes and dental rinses, is sufficient to
show that ACT is a strong mark; to this extent, this du
Pont factor favors opposer.
Turning next to the marks, applicants’ marks ACTRX and
ACTRX in stylized form are very similar to opposer’s mark
ACT; the only difference is that applicants’ mark also

9 Ms. Crouch mentioned in passing that “we had utilized Christie
Brinkley when we utilized ACT Total Care,” test. p. 17, but this
was the extent of the information; no other details about the
advertising campaign were provided.
10 Nor has opposer submitted evidence that would show fame of
opposer’s other pleaded mark, ACT RESTORING.
Opposition No. 91200421
15
includes “RX.”11 Opposer has submitted evidence that RX
means “a medical prescription,”12 as well as evidence that
“RX,” is used by third parties, including several state
prescription programs, thus showing that consumers
understand this meaning of the term. See, for example, New
York City website page entitled “Big Apple Rx—Free
Prescription Discount Card,” Exhibit 7 to opposer’s second
notice of reliance. Applicants are also deemed to have
admitted, by not responding to the requests for admission,
that their goods “will only be sold as prescription
medicines.” Request for Admission 1. As a result,
consumers will view the RX portion of applicants’ marks as
describing a characteristic of the goods, and will consider
the word ACT as the source-identifying element. Further,
even if applicants’ marks were to be used in connection
with non-prescription supplements, the RX portion of their
marks would have a suggestive connotation, indicating that

11 Opposer has confined its arguments regarding likelihood of
confusion to its mark ACT, and we therefore do the same. We also
point out that because opposer’s ACT mark is arguably closer to
applicants’ marks than its ACT RESTORING mark, if likelihood of
confusion is found on the basis of this mark, that would be a
sufficient basis on which to sustain the opposition, and there
would be no need to consider the issue of likelihood of confusion
with respect to ACT RESTORING. On the other hand, if there were
no likelihood of confusion between applicants’ marks and ACT,
there would be no likelihood of confusion with ACT RESTORING.
See Max Capital Group Ltd., 93 USPQ2d 1243 (TTAB 2010).
12 Merriam-Webster Unabridged, Exhibit No. 3 to opposer’s second
notice of reliance.

Opposition No. 91200421
16
the supplements are of a greater strength or efficacy,
similar to that of a prescription product. It is a well-
established principle that, in articulating reasons for
reaching a conclusion on the issue of likelihood 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 the ultimate
conclusion rests on a consideration of the marks in their
entireties. In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). Because, for the aforesaid
reason, we give greater weight to the element ACT in
applicants’ marks, we find that opposer’s mark ACT and
applicants’ marks are similar in appearance, pronunciation,
connotation and commercial impression.
As for the goods, opposer has submitted evidence that
nutritional supplements can be used for oral health. See,
for example, Exhibit 2 to second notice of reliance, for
Dentaplex, advertised as a “Vitamin Mineral Supplement for
Healthy Teeth & Gums,” and stating on its label: “A
nutritional supplement designed for optimal oral health”;
Exhibit 13 for Pharmaden line of pharmaceutical grade
nutritional supplements sold through dental professionals;
and Exhibit 14, for Pro Flora Oral Health by BioGenesis,
described as a “unique, chewable probiotic formula
Opposition No. 91200421
17
specifically formulated to support the oral and nasal
cavities.” Thus, applicants’ goods and opposer’s anti-
cavity mouth rinse are complementary in nature, in that
both can be used for oral health. In addition, opposer has
shown that companies that make and sell prescription drugs
may also make and sell mouth rinses; specifically, opposer
itself has sold the prescription drug Allegra, as well as
its ACT fluoride mouthwash.13
Applicants, through their deemed admissions, have
admitted that their goods will be sold through drug stores,
food and grocery stores, mass merchandisers, internet
retailers, mail order, vitamin and nutraceutical specialty
retailers and health care professionals. Opposer’s ACT
products are sold in food, drug and mass accounts and
through online retailers such as Drugstore.com.
We recognize that applicants’ goods, according to
their admission, will be sold only as prescription
medicines. However, this does not obviate the likelihood
of confusion. First, even though applicants’ goods will be
obtained at a prescription counter, and opposer’s goods are
sold “over-the-counter,” i.e., available on store shelves
for self-service pick-up, the same classes of consumers,

13 The Allegra allergy medication was a prescription product
until 2011, when it became available over-the-counter.

Opposition No. 91200421
18
namely, the general public, will encounter both goods, and
because of the related nature of their purposes, may even
purchase both in the course of a single shopping trip.
This can lead to reverse confusion, as a consumer who has
just picked up oral care supplements bearing applicants’
ACTRX or ACTRX (stylized) marks and who sees ACT on an
anti-cavity mouth rinse is likely to assume that the latter
product emanates from the same source as the prescription
product. Second, the fact that applicants’ goods are
currently intended to be sold only as prescription products
does not mean that they must always be sold in this manner.
Applicants’ goods are identified in their applications
simply as “dietary and nutritional supplements; nutritional
supplement for eliminating toxins from the body;
nutritional supplements.” This identification encompasses
non-prescription goods as well. Because registrations
issuing from these applications would entitle applicants to
use their marks on any of the goods falling within the
identification, we must presume that their goods encompass
non-prescription oral health supplements. See Section 7(b)
of the Trademark Act, (a registration is prima facie
evidence of the owner’s exclusive right to use the mark in
connection with the goods or services specified in the
certificate); In re Smith and Mehaffey, 31 USPQ2d 1531,
Opposition No. 91200421
19
1532 (TTAB 1994) (we must consider the goods to travel in
all channels appropriate for goods of this type). Such
non-prescription oral health care supplements could be
found near other oral health care products, such as
opposer’s mouth rinse.
The du Pont factors of the relatedness of the goods
and the channels of trade favor opposer.
As for the conditions of purchase, we find that
applicants’ products would be purchased with care. If they
were sold as prescription products, the dispensing
pharmacists would be providing them, and they must be
considered sophisticated and careful. If the goods were
sold as non-prescription items, because of their nature as
supplements it is fair to assume that the purchasers would
exercise some degree of care in choosing them. As a
result, this du Pont factor would favor applicants.
However, even careful purchasers are not likely to
recognize that ACTRX and ACTRX (stylized) for supplements
represent a separate source from ACT anti-cavity mouth
rinse. Although we accept that consumers will note the
additional element RX in applicants’ marks, because of the
suggestive or descriptive meaning of this element with
respect to the products, they are likely to view ACT as the
source-identifying element of the mark, and assume that the
Opposition No. 91200421
20
supplements emanate from the same source as ACT anti-cavity
mouth rinse. This is particularly true because opposer
uses ACT in combination with other terms, e.g., ACT TOTAL
CARE, ACT ANTICAVITY KIDS, ACT RESTORING.
Opposer has noted that there is no evidence of actual
confusion, but also points out that such evidence is not
necessary in order to prove likelihood of confusion, and
that here, where there is no evidence that applicants have
actually used their marks, “there could hardly be any
evidence of actual confusion.” Brief, p. 13. We agree.
This du Pont factor is neutral.
These are the only du Pont factors discussed by
opposer, and on which any evidence has been submitted. To
the extent that any other du Pont factors are considered to
be relevant, we treat them as neutral.
As discussed above, we find that the du Pont factors
of the similarity of the marks, goods, channels of trade
and the strength of opposer’s mark ACT favor opposer.
Although the factor of the conditions of purchase favor
applicants, the other factors far outweigh this one; while
consumers will note the differences in the marks, this will
not result in their concluding that the marks represent
different sources for the goods.
Opposition No. 91200421
21
The opposition on the ground of likelihood of
confusion between opposer’s mark ACT and applicants’ marks
is sustained.

Dilution
One of the requirements for finding dilution is that
the plaintiff’s mark must be famous. See Section 43(c) of
the Trademark Act. Because we have found that opposer’s
mark is not famous for likelihood of confusion purposes, it
cannot be treated as famous for the ground of dilution.
Accordingly, opposer has failed to prove an essential
element of the dilution claim, and the opposition on the
ground of dilution is dismissed.
Decision
The opposition is sustained solely on the ground of
likelihood of confusion based on opposer’s mark ACT for
anti-cavity mouth rinse.