ChromaDex Inc.

Trademark Trial and Appeal Board

Feb 28, 2020

87809270 (T.T.A.B. Feb. 28, 2020)

Mailed: February 28, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
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In re ChromaDex Inc.
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Serial No. 87809270
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Joseph T. Nabor of Fitch, Even, Tabin & Flannery LLP
for ChromaDex Inc.

Patty Evanko, Trademark Examining Attorney, Law Office 119,
Brett Golden, Managing Attorney.
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Before Adlin, Lynch and Dunn, Administrative Trademark Judges.
Opinion by Adlin, Administrative Trademark Judge:
Applicant ChromaDex Inc. seeks registration of THE SCIENCE OF YOUTH in
standard characters for, inter alia, “dietary supplements; nutritional supplements”
in International Class 5.1 The Examining Attorney issued a partial refusal under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s
mark, when used for dietary and nutritional supplements, so resembles the
registered mark SCIENCE OF YOUTH, in standard characters, for “Skin care
products, namely, non-medicated skin serum; Eye cream; Eye gels; cosmetic anti-

1 Application Serial No. 87809270, filed February 23, 2018 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an alleged intent to use the mark in commerce.
This Opinion is Not a
Precedent of the TTAB
Serial No. 87809270
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wrinkle preparations for the skin in gel form; Wrinkle removing skin care
preparations; Anti-wrinkle cream; Lip balm” in International Class 3,2 that use of
Applicant’s mark in connection with dietary and nutritional supplements is likely to
cause confusion.3 After the partial refusal became final, Applicant appealed and filed
a request for reconsideration which was denied. Applicant and the Examining
Attorney filed briefs.
I. Evidentiary Issue
In its Request for Reconsideration, Applicant argued that “a vast majority of skin
care products that are registered in the United States Patent and Trademark Office
database do not delineate dietary and nutritional supplements in their identification
of goods.” In support, it relied on a mere list of registrations, as well as the printouts
of seven registrations. May 15, 2019 Request for Reconsideration TSDR 8, 21-42. In
denying reconsideration, the Examining Attorney explained that “the mere
submission of a list of registrations does not make such registrations part of the
record,” and informed Applicant how to introduce the listed registrations properly.
June 5, 2019 Denial of Request for Reconsideration TSDR 2. Nevertheless, Applicant
failed during prosecution to properly introduce most of the registrations on the list.

2 Registration No. 3479602, issued August 5, 2008; renewed.
3 The refusal of registration only applies to the identified “dietary supplements; nutritional
supplements.” See Trademark Rule 2.65(a)(1); Trademark Manual of Examining Procedure
(TMEP) § 718.02(a)(October 2018). The involved application’s complete identification of goods
is: “Diagnostic kits consisting primarily of monoclonal antibodies, buffers, and reagents for
use in disease testing; Diagnostic preparations for medical purposes; Diagnostic agents,
preparations and substances for medical purposes; Dietary supplements; Nutritional
supplements.”

Serial No. 87809270
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We have therefore not considered the registrations not properly made of record, and
do not find the mere list at all persuasive. See In re Peace Love World Live, LLC, 127
USPQ2d 1400, 1405 n.17 (TTAB 2018) (“[T]he list does not include enough
information to be probative. The list includes only the serial number, registration
number, mark, and status (live or dead) of the applications or registrations. Because
the goods are not listed, we do not know whether the listed [applications or]
registrations are relevant.”); see also Edom Labs. Inc. v. Licher, 102 USPQ2d 1546,
1550 (TTAB 2012). We have only considered the registrations Applicant properly
introduced.
II. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on the likelihood of confusion. 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); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each du Pont factor about
which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1162-63 (Fed. Cir. 2019). 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, 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.”).
Serial No. 87809270
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A. Similarity of the Marks
The marks are essentially identical in appearance, sound, meaning and
commercial impression, with the only difference between them being that Applicant’s
mark begins with the definite article THE. Here, as we have found on many occasions,
this is a distinction without a meaningful difference. See e.g. In re Thor Tech Inc., 90
USPQ2d 1634, 1635 (TTAB 2009) (finding WAVE and THE WAVE to be confusingly
similar, stating “[t]he addition of the word ‘The’ at the beginning of the registered
mark does not have any trademark significance. ‘The’ is a definite article. When used
before a noun, it denotes a particular person or thing.”); In re The Place, Inc., 76
USPQ2d 1467, 1468 (TTAB 2005) (definite article THE adds “no source-indicating
significance to the mark as a whole”); In re Narwood Prods., Inc., 223 USPQ 1034
(TTAB 1984); Jay-Zee, Inc. v. Hartfield-Zodys, Inc., 207 USPQ2d 269, 271-71 (TTAB
1980); United States Nat’l Bank of Oregon v. Midwest Savings and Loan Ass’n., 194
USPQ2d 232 (TTAB 1977) (“The definite article ‘THE’ likewise adds little
distinguishing matter because the definite article most generally serves as a means
to refer to a particular business entity or activity or division thereof, and it would be
a natural tendency of customers in referring to opposer's services under the mark in
question to utilize the article ‘THE’ in front of ‘U-BANK’ in view of their uncertain
memory or recollection of the many marks that they encounter in their everyday
excursion into the marketplace.”). This factor therefore not only weighs heavily in
favor of finding a likelihood of confusion, but also reduces the degree of similarity
between the goods required to support a finding of likelihood of confusion. In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993); Time Warner Ent.
Serial No. 87809270
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Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB 2002); and In re Opus One Inc., 60
USPQ2d 1812, 1815 (TTAB 2001).4
B. The Goods, Channels of Trade and Classes of Consumers
The Examining Attorney has established through Internet printouts that third
parties use the same mark for dietary or nutritional supplements on the one hand,
and skin care products on the other. For example, GNC offers dietary supplements
and a variety of skincare creams and gels under the GNC mark:

4 To the extent Applicant argues that the marks will not be confused due to terms (such as
Registrant’s trade name) or marketing strategies not reflected in the drawing of the cited
registration or involved application, the argument is misplaced. We must compare
Applicant’s mark, as presented in the drawing submitted with its application, to Registrant’s
mark as depicted in the cited registration. 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.”); Denney v. Elizabeth Arden Sales Corp., 263 F.2d
347, 120 USPQ 480, 481 (CCPA 1959) (“In determining the applicant’s right to registration,
only the mark as set forth in the application may be considered ….”); 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.”).

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Perricone MD offers anti-wrinkle skincare preparations and dietary supplements
under the PERRICONE MD mark:

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Gundry MD offers dietary supplements and anti-aging skincare cream under the
GUNDRY MD mark:

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Murad offers dietary supplements and “skin soothing serum” under its MURAD
mark:

Dr. Baumann offers a variety of skincare products, including dietary supplements
intended to treat skin, under the DR. BAUMANN mark:
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Serial No. 87809270
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Finally, Herbalife offers a variety of skincare products and nutritional supplements
under the HERBALIFE mark, including some nutritional supplements which are
intended to “reduce wrinkles”:

Serial No. 87809270
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April 26, 2018 Office Action TSDR 13, 14, 17, 32, 37, 40; June 5, 2019 Denial of
Request for Reconsideration TSDR 6, 7, 16, 18, 22, 24, 26.
This evidence establishes that the goods are related. See In re Detroit Ath. Co.,
903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (crediting similar relatedness
evidence showing that “consumers are accustomed to seeing a single mark associated
with a source that sells both” types of goods); Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (evidence that “a single
company sells the goods and services of both parties, if presented, is relevant to a
relationship analysis”).
Furthermore, the Examining Attorney has introduced a large number of use-
based third-party registrations showing that the same marks are registered in
connection with Registrant’s goods (or similar or encompassing goods) on the one
hand and Applicant’s goods (or similar or encompassing goods) on the other. The
following 10 are representative:
(Reg. No. 4225154) is registered for “lotions
for skin, face and body; moisturizing preparations for the
skin” on the one hand and “dietary and nutritional
supplements” on the other.

FREQUENSEA (Reg. No. 4636240) is registered for “skin
and body topical lotions, creams and oils for cosmetic use”
and “dietary and nutritional supplements.”

CELASTIN (Reg. No. 4974171) is registered for “cosmetic
preparations for skin care” and “nutritional supplements
for slowing the skin aging process by promoting the growth
of elastin in skin.”

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(Reg. No. 4974348) is registered for “skin lotions;
skin creams; non-medicated skin serums” and “dietary
supplements for skincare.”

(Reg. No. 4926022) is registered for
“moisturizing solutions for the skin … containing natural
ingredients” and “vitamin supplements containing natural
ingredients.”

BE BALANCED BE BOLD BE BEAUTIFUL (Reg. No.
5157102) is registered for “eye cream” and “nutritional
supplements, namely, probiotic compositions.”

LA CIENCIA DE VIVIR MEJOR (Reg. No. 5581364) is
registered for “eye cream” and “dietary supplements,
namely, vitamin and mineral supplements.”

GCOOP (Reg. No. 5556400) is registered for “eye cream”
and “dietary supplements.”

TEK WEH (Reg. No. 5522942) is registered for “non-
medicated skin serums” and “dietary and nutritional
supplements.”

NATURE’S BRANDS (Reg. No. 5496524) is registered for
“non-medicated skin care preparations, namely, body mist”
and “dietary supplements.”

November 15, 2018 Office Action TSDR 7-35. The Examining Attorney introduced
additional, similar evidence with the April 26, 2018 Office Action. “Third-party
registrations which cover a number of differing goods and/or services, and which are
based on use in commerce, although not evidence that the marks shown therein are
in use on a commercial scale or that the public is familiar with them, may
nevertheless have some probative value to the extent that they may serve to suggest
Serial No. 87809270
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that such goods or services are of a type which may emanate from a single source.”
See In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1998).5
The evidence of widespread third-party use and registration of the same marks
for goods such as Applicant’s and goods such as Registrant’s is more than sufficient
to establish a relationship between Applicant’s and Registrant’s goods. Moreover,
some of this evidence − including the use evidence from PERRICONE MD, DR.
BAUMANN and HERBALIFE, and Registration Nos. 4974171 and 4974348 (among
others) – establish that some dietary and nutritional supplements are used to care
for the skin. This evidence establishes that skin care preparations and dietary and
nutritional supplements are sometimes complementary, which further establishes a
relationship between the goods. See In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984); General Mills, Inc. v. Fage Dairy
Processing Indus. SA, 100 USPQ2d 1584, 1597-98 (TTAB 2011), judgment set aside
on other grounds, 110 USPQ2d 1679 (TTAB 2014); In re Toshiba Med. Sys. Corp., 91
USPQ2d 1266, 1272 (TTAB 2009). This factor also weighs in favor of finding a
likelihood of confusion.6

5 With its May 15, 2019 Office Action response, Applicant submitted seven third-party
registrations covering skin care products but not dietary or nutritional supplements. These
are not probative, however, because even if this evidence established that these sources do
not offer supplements as well as skin care products, there is ample evidence of other third-
party sources offering both types of products.
6 Applicant’s argument that confusion is unlikely because its goods are “primarily composed
of NAD or Nicotinamide adenine dinucleotide,” which “would not be encountered in cosmetics
or skin creams,” 8 TTABVUE 6 (Applicant’s Appeal Brief at 3), is not well taken. As Applicant
itself points out, relatedness is based on the “identifications [of goods] in the subject
application and cited registration.” Id. at 5 (Applicant’s Appeal Brief at 2) (citing Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir.
Serial No. 87809270
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As for the channels of trade and classes of consumers, the third-party use evidence
from nutrition-focused sources such as GNC and Herbalife, skincare-focused sources
such as Perricone MD, Dr. Baumann and Murad and wellness-focused sources such
as Gundry MD establishes that they overlap. These factors also weigh in favor of
finding a likelihood of confusion.
C. Purchaser Care and Sophistication
Applicant’s argument that the relevant consumers are sophisticated and will
exercise care in purchasing is unsupported by any evidence. Furthermore, the record
is to the contrary at least with respect to skin care preparations such as those
identified in the cited registration, which are identified without limitation as to price
or types of consumers. Indeed, some of skin care products depicted in the record sell
for only a few dollars.
We accept, however, that consumers of dietary and nutritional supplements will
exercise at least some care in purchasing goods they intend to ingest. This factor
weighs against a finding of likelihood of confusion.
III. Conclusion
The marks are virtually identical, the goods are related and the channels of trade
and classes of consumers overlap. While we assume that consumers of Applicant’s
goods will exercise care in purchasing, they will encounter Applicant’s and
Registrant’s goods in the same channels of trade and under essentially identical

2014)). Applicant’s identification does not limit its supplements, which as identified may or
may not include NAD.
Serial No. 87809270
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marks. As a result, any consumer sophistication and care will not be enough to
prevent confusion. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49,
50 (Fed. Cir. 1986); Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d
1403, 168 USPQ 110, 112 (CCPA 1970); see also, HRL Associates, Inc. v. Weiss
Associates, Inc., 12 USPQ2d 1819 (TTAB 1989), aff’d, Weiss Associates, Inc. v. HRL
Associates, Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods
and marks outweigh sophisticated purchasers, careful purchasing decision, and
expensive goods).

Decision: The refusal to register Applicant’s mark for “dietary supplements;
nutritional supplements” under Section 2(d) of the Trademark Act is affirmed. The
application will proceed to publication for the remaining goods: “Diagnostic kits
consisting primarily of monoclonal antibodies, buffers, and reagents for use in disease
testing; Diagnostic preparations for medical purposes; Diagnostic agents,
preparations and substances for medical purposes.”