Country Life, LLCv.Barlean's Organic Oils, LLC

Trademark Trial and Appeal Board

May 6, 2021

91231643 (T.T.A.B. May. 6, 2021)

Mailed: May 6, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Country Life, LLC
v.
Barlean’s Organic Oils, LLC
_____

Opposition No. 91231643
_____

William H. Cox and Peter J. Vranum of the Cox Law Firm, LLC
for Country Life, LLC.

Joel Matteson, Esq. of Barlean’s Organic Oils, LLC.
_____

Before Cataldo, Bergsman and Shaw, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Barlean’s Organic Oils, LLC (Applicant) seeks registration on the Principal
Register of the mark CLEAN REAL FOOD, in standard character form, for “dietary
supplements; food supplements,” in International Class 5.1 Applicant disclaims the
exclusive right to use the term “Real Food.”

1 Serial No. 87082107 was filed June 23, 2016, under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use the mark in
commerce.
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
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Country Life, LLC (Opposer) opposes the registration of Applicant’s mark on the
grounds listed below:2
● Applicant lacked a bona fide intent to use the mark CLEAN REAL FOOD as of
the filing date of the application;
● Applicant’s mark is merely descriptive under Section 2(e)(1) of the Trademark
Act, 15 U.S.C. § 1052(e)(1); and
● Applicant’s mark CLEAN REAL FOOD for “dietary supplements; food
supplements” so resembles Opposer’s registered mark REAL FOOD ORGANICS, in
standard character form, for “organic nutritional supplements,” in International
Class 5, as to be likely to cause confusion under Section 2(d) of the Trademark Act,
15 U.S.C. § 1052(d).3 The USPTO registered REAL FOOD ORGANICS under the
provisions of Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f), and Opposer
disclaimed the exclusive right to use the term “Food Organics.”

2 Amended Notice of Opposition (14 TTABVUE 10-37).
3 Registration No. 4644191 registered November 25, 2014; Sections 8 and 15 declarations
accepted and acknowledged.
Opposer attached a copy of its pleaded registration printed from the USPTO Trademark
Electronic Search System (TESS) and from the USPTO Trademark Status and Document
Retrieval system (TSDR) showing the current status of and title to the registration.
(14 TTABVUE 17-21). We receive Opposer’s pleaded registration in evidence and make it
part of the record. Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1).
As such, any party may refer to it for any purpose permitted by the Federal Rules of Evidence.
Trademark Rule 2.122(a), 37 C.F.R. § 2.122(a).
Accordingly, it was not necessary, nor do we find it helpful, for Opposer to introduce the
registration in the testimony declaration of Wendy Lucas (30 TTABVUE 71) or through a
separate notice of reliance (33 TTABVUE). Nor was there any need for Applicant to introduce
it through a notice of reliance (43 TTABVUE 9). Suffice it to say, we evaluate the quality of
evidence based on its probative value, not the number of times the parties introduce it.
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Applicant, in its Amended Answer, denied the salient allegations in the Amended
Notice of Opposition. In addition, Applicant pleaded five purported “affirmative
defenses.” Because Applicant did not litigate the “affirmative defenses,” nor did it
argue them in its brief, Applicant has waived the “affirmative defenses.” Harry
Winston, Inc. and Harry Winston S.A. v. Bruce Winston Gem Corp., 111 USPQ2d
1419, 1422 (TTAB 2014); Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc.,
107 USPQ2d 1750, 1753 n.6 (TTAB 2013), aff’d mem., 565 F. App’x 900 (Fed. Cir.
2014); Research in Motion Ltd. v. Defining Presence Mktg. Grp. Inc., 102 USPQ2d
1187, 1189-90 (TTAB 2012).
I. Evidentiary Issue
Applicant introduced through notice of reliance a copy of its opposition brief to
Opposer’s motion for summary judgment,4 presumably to make of record the
declaration of Bruce Barlean, Applicant’s founder, owner, and Chief Executive
Officer,5 and a copy of Applicant’s opposition brief to Opposer’s motion to amend the
Notice of Opposition,6 presumably to make of record the declaration of Joel Matteson,
Applicant’s General Counsel.7
Opposer filed a motion to strike the notices of reliance on the ground that
opposition briefs, including the attached declarations, “are not proper documents for

4 44 TTABVUE. The Board posted Applicant’s opposition brief at 25 TTABVUE.
5 44 TTABVUE 17-19.
6 45 TTABVUE. The Board posted Applicant’s opposition brief at 15 TTABVUE.
7 45 TTABVUE 8-10.
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entry by notice of reliance, are not admissible by notice of entry, and any purported
testimony is untimely.”8
The Board granted Opposer’s motion to strike but granted Applicant time to cure
the defects in its evidentiary submission.9 In its order granting Opposer’s motion to
strike, the Board explained in detail how Applicant could cure the defects in the
documents at issue.
The materials submitted in these exhibits form part of the
proceedings in this opposition, but they are part of the
evidentiary record only to the extent that the particular
papers were made of record in accordance with the
Trademark Rules of Practice. See, e.g., Levi Strauss & Co.
v. R. Josephs Sportswear Inc., 28 USPQ2d 1464 (TTAB
1993); Pet Inc. v. Bassetti, 219 USPQ 911 (TTAB 1983); Am.
Meat Inst. v. Horace W. Longacre, Inc., 211 USPQ 712
(TTAB 1981); TBMP § 528.05(a).
A party that wishes to introduce an official record in
evidence in a Board inter partes proceeding may do so, if
the official record is competent evidence and relevant to an
issue in the proceeding, by filing a notice of reliance
thereon during its testimony period. The notice of reliance
must specify the official record and the pages to be read;
indicate generally the relevance of the material being
offered and associate it with one or more issues in the case;
and be accompanied by the official record or a copy thereof
whose authenticity is established under the Federal Rules
of Evidence. See Trademark Rules 2.122(e) and (g);
Standard Knitting, Ltd. v. Toyota Jidosha Kabushiki
Kaisha, 77 USPQ2d 1917, 1920 (TTAB 2006).
Materials such as briefs, declarations and exhibits
submitted previously in a Board proceeding may be
submitted under notice of reliance as official records. See
Hard Rock Café Int’l (USA) Inc. v. Elsea, 56 USPQ2d 1504,
1509 (TTAB 2000). However, the materials must reflect

8 48 TTABVUE 2.
9 52 TTABVUE 7.
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that the materials were received by the Board rather
than a party’s file copy of the materials. Id.; Osage Oil
& Trans., Inc. v. The Standard Oil Co., 226 USPQ 905, 906
(TTAB 1985). Further, in order to make an affidavit or
declaration of record as trial testimony, absent a
stipulation or Board order, the affidavit or declaration
must be executed during the assigned testimony,
unless submitted as an exhibit to other testimony
and affirmed therein. Robinson v. Hot Grabba Leaf,
LLC, 2019 USPQ2d 149089 at *4 (TTAB 2019). (Emphasis
added).10
Applicant reintroduced its opposition brief to Opposer’s motion for summary
judgment, including the Bruce Barlean declaration,11 and its opposition brief to
Opposer’s motion to amend the Notice of Opposition, including the Joel Matteson
declaration,12 with the Trademark Trial and Appeal Board Electronic Filing System
ESTTA cover sheet demonstrating that the opposition briefs are official records and,
thus, admissible through a notice of reliance.13 In addition, Applicant introduced
supplemental declarations of Bruce Barlean and Joel Matteson where they affirmed
the accuracy of their earlier declarations.14
Nevertheless, Opposer lodged objections to Applicant’s supplemental notice of
reliance on the ground that Applicant introduced the same opposition briefs in its
supplemental notice of reliance as it originally filed and that Applicant improperly

10 52 TTABVUE 6-7. The Board expressly stated that Applicant might submit “any
supporting declarations which would permit submission of the Matteson and Barlean
declarations as testimony in this proceeding.” 53 TTABVUE 13.
11 55 TTABVUE 2-19.
12 55 TTABVUE 20-51.
13 55 TTABVUE 2 and 20.
14 55 TTABVUE 52-53.
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introduced supplemental declarations executed by Bruce Barlean and Joel Matteson,
not their testimony.15
Because Applicant included the ESSTA cover sheets accompanying its opposition
briefs, Applicant’s opposition briefs and the accompanying declarations by Bruce
Barlean and Joel Matteson are admissible through a notice of reliance as official
records. Trademark Rule 2.122(e)(1), 37 C.F.R. § 2.122(e)(1).
Opposer contends Trademark Rule 2.122(g), 37 C.F.R. § 2.122(g), identifies the
type of evidence that may be introduced through a notice of reliance, that it does not
include testimony and, therefore, the supplemental declarations of Bruce Barlean
and Joel Matteson are inadmissible. We do not agree. First, the Board’s order
granting Opposer’s motion to strike expressly permitted Applicant to file
supplemental declarations. Second, Trademark Rule 2.123(a)(1), C.F.R. § 2.123(a)(1),
provides “[t]he testimony of witnesses in inter partes cases may be submitted in the
form of an affidavits or declaration.” Finally, Opposer’s objection that Applicant may
have inaccurately couched its filing of the supplemental declarations under the rubric
of a “notice of reliance” exalts form over substance and we give it no consideration.
Opposer’s objections to Applicant’s opposition briefs to Opposer’s motion for
summary judgment, including the Bruce Barlean declaration, and Applicant’s
opposition brief to Opposer’s motion to amend the Notice of Opposition, including the
Joel Matteson declaration, and the supplemental declarations of Bruce Barlean and
Joel Matteson are overruled.

15 56 TTABVUE 30-31.
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II. The Record.
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of Applicant’s application.16
A. Opposer’s Testimony and Evidence.
1. Notice of reliance on copies of advertisements for Opposer’s REAL
FOOD ORGANICS products posted on third-party website;17

2. Testimony declaration of Wendy Lucas, Opposer’s President and
Chief Operating Officer;18

3. Notice of reliance on excerpts from Opposer’s Facebook webpage
(facebook.com/countrylifevitamins/) and Instagram account
(Instagram.com/countrylifevitamins/hl=en);19

4. Testimony declaration of Peter J. Vranum, Opposer’s attorney,
including a copy of Applicant’s responses to Opposer’s first set of
interrogatories,20 a copy of Opposer’s request for production of
documents,21 and a copy of Applicant’s responses to Opposer’s
request for production of documents;22

5. Notice of reliance on news articles posted on third-party websites
purporting to show the use of the word “clean” used as a term of art
in conjunction with diet and labeling for dietary supplements;23

16 Because Applicant’s application is automatically of record, there is no reason for Applicant
to introduce a copy of the USPTO TESS printout of the application. 43 TTABVUE 8.
17 29 TTABVUE.
18 30 TTABVUE. The Board posted the portions of the Wendy Lucas declaration Opposer
designated confidential at 31 TTABVUE.
19 32 TTABVUE.
20 34 TTABVUE 33-42. Because Opposer introduced Applicant’s responses to Opposer’s first
set of interrogatories as an exhibit to the Vranum declaration, there is no reason to introduce
it a second time under a notice of reliance posted at 37 TTABVUE.
21 34 TTABVUE 18-31.
22 34 TTABVUE 44-46.
23 35 TTABVUE.
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6. Notice of reliance on the Merriam-Webster Dictionary (merriam-
webster.com) definitions for the words “Clean,” “Real,” and “Food”;24

7. Notice of reliance on copies of third-party registrations incorporating
the word “Clean” in connection with nutritional and dietary
supplements;25

8. Notice of reliance on a copy of the search results for REAL FOOD
ORGANICS in the USPTO database;26

9. Notice of reliance on a copy of the search results in the USPTO
TTABVUE database for proceedings referring to Opposer’s pleaded
registration;27

10. Notice of reliance on a copy of the USPTO records for Applicant’s
REAL CLEAN FOOD application;28 and

11. Notice of reliance on copies of the USPTO records for Applicant’s 12
ITU applications purportedly abandoned for nonuse.29

B. Applicant’s Testimony and Evidence.
1. Notice of reliance on Opposer’s responses to Applicant’s first set of
interrogatories;30

2. Notice of reliance on the Merriam-Webster Dictionary (merriam-
webster.com) definition of “organics”;31

3. Notice of reliance on the absence of a Merriam-Webster Dictionary
(merriam-webster.com) definition of the term “clean real”;32

24 36 TTABVUE. Because Opposer introduced the Merriam-Webster Dictionary (merriam-
webster.com) definitions for the words “Clean,” “Real,” and “Food,” there is no reason for
Applicant to introduce those definitions again. 43 TTABVUE 3-5 and 12; 46 TTABVUE 8-52.
25 38 TTABVUE 8-152.
26 38 TTABVUE 153-60.
27 38 TTABVUE 162-207.
28 38 TTABVUE 209-35. The mark at issue is CLEAN REAL FOOD.
29 38 TTABVUE 237-80.
30 40 TTABVUE.
31 43 TTABVUE 2.
32 43 TTABVUE 10.
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4. Notice of reliance on “How Grammar, Syntax & Punctuation Affect
Literary Meaning,” Study.com;33

5. Notice of reliance on Applicant’s opposition brief to Opposer’s motion
for summary judgment, including the Bruce Barlean declaration;34

6. Bruce Barlean supplemental testimony declaration attesting to the
accuracy of the testimony in his declaration that is part of Applicant’s
opposition to Opposer’s motion for summary judgment;35

7. Notice of reliance on Applicant’s opposition brief to Opposer’s motion
to Amend the Notice of Opposition, including the Joel Matteson
declaration;36

8. Joel Matteson supplemental testimony declaration attesting to the
accuracy of the testimony in his declaration that is part of Applicant’s
opposition to Opposer’s motion to amend the Notice of Opposition;37

9. Notice of reliance on third-party registrations incorporating the term
“Real Food” for supplements, foods, and purportedly related goods
and services;38

10. Notice of reliance on third-party registrations incorporating the word
“Organics”;39 and

11. Notice of reliance on copies of Applicant’s registrations that
Applicant filed as intent to use applications.40

33 43 TTABVUE 6-7.
34 55 TTABVUE 2-19.
35 55 TTABVUE 53.
36 55 TTABVUE 20-51.
37 55 TTABVUE 53
38 45 TTABVUE 34-49.
39 47 TTABVUE 2-40.
40 47 TTABVUE 41-56.
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III. Entitlement to a Statutory Cause of Action.
Even though Applicant does not contest it, Opposer’s entitlement to a statutory
cause of action, formerly referred to as “standing” by the Federal Circuit and the
Board,41 is a threshold issue in every inter partes case. See Corcamore, LLC v. SFM,
LLC, 978 F.3d 1298, 2020 USPQ2d 11277 (Fed. Cir. 2020); Australian Therapeutic
Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 (Fed. Cir.
2020); Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d
1058, 1062 (Fed. Cir. 2014). To establish entitlement to a statutory cause of action, a
plaintiff must demonstrate: (i) an interest falling within the zone of interests
protected by the statute and (ii) proximate causation. Corcamore, 2020 USPQ2d
11277 at *4. See also Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson,
170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (TTAB 1982).
Because Opposer has properly introduced into evidence a copy of its pleaded
registrations showing the current status of and title to the registration, Opposer has
established its entitlement to a statutory cause of action. Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Primrose Ret. Cmtys.,
LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1032 (TTAB 2016)
(standing established based on pleaded registration made of record).

41 Our decisions have previously analyzed the requirements of Sections 1063 and 1064 under
the rubric of “standing.” We now refer to this inquiry as entitlement to a statutory cause of
action. Despite the change in nomenclature, our prior decisions and those of the Federal
Circuit interpreting “standing” under §§ 1063 and 1064 remain applicable.
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IV. Priority
Because Opposer has properly made of record its pleaded registration, priority is
not an issue as to the mark and goods covered by the registration. See Mini Melts,
Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1469 (TTAB 2016) (citing King
Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d. 1400, 182 USPQ 108, 110 (CCPA
1974)).
V. Likelihood of Confusion
We base our determination under Section 2(d) on an analysis of all of the probative
facts in evidence that are relevant to the factors 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)
(“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138,
113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “In discharging this duty, the thirteen
DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) and DuPont,
177 USPQ at 567). “Not all DuPont factors are relevant in each case, and the weight
afforded to each factor depends on the circumstances. Any single factor may control
a particular case.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d
994, 2020 USPQ2d 10341, *3 (Fed. Cir. 2020) (citing Dixie Rests., 41 USPQ2d at 1406-
07).
“Each case must be decided on its own facts and the differences are often subtle
ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA
Opposition No. 91231643

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1973). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods or services.
See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
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.”). See also In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747
(Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l,
64 USPQ2d at 1380)).
A. The similarity or dissimilarity and nature of the goods.
Applicant is seeking to register its mark for “dietary supplements; food
supplements” and the mark in Opposer’s pleaded registration is registered for
“organic nutritional supplements.”
MERRIAM-WEBSTER DICTIONARY (merriam-webster.com) defines “supplement” as
“something that completes or makes an addition.”42 It defines “food” as, inter alia,
“material consisting essentially of protein, carbohydrate, and fat used in the body of
an organism to sustain growth, repair, and vital processes and to furnish energy also

42 Accessed May 5, 2021. The Board may take judicial notice of dictionary definitions,
including online dictionaries that exist in printed format. In re Cordua Rests. LP,
110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir.
2016).
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: such food together with supplementary substances (such as minerals, vitamins, and
condiments)”43 Thus, a food supplement is a substance such as a vitamin or mineral
added to protein, carbohydrates or fat.
The MERRIAM-WEBSTER DICTIONARY (merriam-webster.com) defines “dietary
supplement” as “a product taken orally that contains one or more ingredients (such
as vitamins or amino acids) that are intended to supplement one ’s diet and are not
considered food.” According to the ENCYCLOPAEDIA BRITANNICA “dietary supplements”
“are defined as products (other than tobacco) intended to supplement the diet that
contain at least one of the following ingredients: vitamin, mineral, herb or botanical
(including extracts of herbs or botanicals), amino acid, metabolite, or any combination
thereof. In short, products such as multivitamins, garlic tablets, fish oil capsules,
probiotics, natural weight-loss aids, and certain types of energy drinks are examples
of dietary supplements.”44
The ENCYCLOPAEDIA BRITANNICA (Britannica.com) defines “nutritional
supplement” as “any vitamin or mineral added during processing to improve nutritive
value and sometimes provide specific nutrients in which populations are deficient.”45
The MERRIAM-WEBSTER DICTIONARY (merriam-webster.com) defines “nutrient” as

43 36 TTABVUE 42.
44 “Dietary Supplement,” ENCYCLOPAEDIA BRITANNICA (britannica.com) accessed May 5,
2021. The Board may take judicial notice of information from encyclopedias. B.V.D. Licensing
Corp. v. Body Action Design Inc., 846 F.2d 727, 6 USPQ2d 1719, 1721 (Fed. Cir. 1988)
(“dictionaries and encyclopedias may be consulted”).
45 “Nutritional Supplement,” ENCYCLOPAEDIA BRITANNICA (britannica.com) accessed May 5,
2021.
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“furnishing nourishment” and “a substance or ingredient that promotes growth,
provides energy, and maintains life.”
The MERRIAM-WEBSTER DICTIONARY (merriam-webster.com) defines “organic,”
inter alia, as “of, relating to, yielding, or involving the use of food produced with the
use of feed or fertilizer of plant or animal origin without employment of chemically
formulated fertilizers, growth stimulants, antibiotics, or pesticides.”46 Thus, an
organic nutritional supplement is a vitamin or mineral of plant or animal origin
added to food to improve nutritive value.
We find that “dietary supplements,” “food supplements,” and “organic nutritional
supplements,” while not identical products, are closely related because they all add
vitamins, minerals, or other nutritional products through various means to improve
diet. In this regard, we note that the Pure Formulas website (pureformulas.com)
advertising the sale of Opposer’s REAL FOODS ORGANICS for women’s vitamin
tablets describes the product as “a whole food based supplement” (i.e., a food
supplement).47
In addition, Opposer introduced copies of 30 third-party registrations for marks
incorporating the word “Clean” registered for “dietary and nutritional
supplements.”48 Third-party registrations based on use in commerce that individually
cover a number of different goods might have probative value to the extent that they

46 43 TTABVUE 2.
47 29 TTABVUE 31. See also Opposer’s website (countrylifevitamins.com) describing
Opposer’s REAL FOOD ORGANICS for men multivitamin as “a whole food supplement.”
29 TTABVUE 67.
48 38 TTABVUE 8-152.
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serve to suggest that the listed goods are of a type that may emanate from the same
source. In re Country Oven, Inc., 2019 USPQ2d 443903, *8 (TTAB 2019); In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky Duck
Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d mem. 864 F.2d 149
(Fed. Cir. 1988).
Applicant, in its brief, did not argue that the goods are not related.
B. Established, likely-to-continue channels of trade.
In addition to the fact that the parties’ goods are very closely related, they sell or
intend to sell their products to the same classes of consumers. Opposer markets its
organic nutritional supplements to “anyone who purchases vitamins and nutritional
supplements.”49 Applicant intends to sell its CLEAN REAL FOOD products “to
health-conscious consumers who want supplement/foods that do not have fillers,
artificial ingredients, or contaminants.”50 Applicant, in its brief, admits as much
arguing, “[b]oth parties’ customers are sophisticated, health-conscious consumers.”51
We find that the parties market their products in the same channels of trade.
C. The strength of Opposer’s REAL FOOD ORGANICS mark.
Opposer contends that its REAL FOOD ORGANICS mark is famous.52 According
to Opposer, the evidence supporting the fame of its REAL FOOD ORGANIC’S [sic]

49 Lucas Decl. ¶9 (30 TTABVUE 4). See also Lucas Decl. ¶16 (30 TTABVUE 5) (“Opposer’s
goods are marketed to ordinary persons of all ages who purchase and use nutritional
supplements.”).
50 Barlean Decl. ¶8 (55 TTABVUE 18).
51 Applicant’s Brief, p. 13 (57 TTABVUE 17).
52 Opposer’s Brief, p. 15 (56 TTABVUE 22).
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mark includes “the volume of sales of goods under the REAL FOOD ORGANIC’S [sic]
mark, extensive promotion related to the REAL FOOD ORGANIC’S [sic] mark for the
goods, and the sustained length of time that branded REAL FOOD ORGANIC’S [sic]
goods and promotion have engendered commercial awareness of the REAL FOOD
ORGANIC’S [sic] mark.”53
Fame, if it exists, plays a dominant role in the likelihood of confusion analysis
because famous marks enjoy a broad scope of protection or exclusivity of use. A
famous mark has extensive public recognition and renown. Bose Corp. v. QSC Audio
Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305 (Fed. Cir. 2002); Recot Inc. v. M.C.
Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir. 2000); Kenner Parker Toys,
Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992).
Under the fifth factor, likelihood of confusion fame is not “an all-or-nothing
measure.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323,
122 USPQ2d 1733, 1734 (Fed. Cir. 2017). It “varies along a spectrum from very strong
to very weak.” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005) (quoting In re Coors
Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003)).
To determine a mark’s place on that spectrum, we consider its inherent strength,
based on the nature of the mark itself, and its commercial strength, based on its
marketplace recognition. See In re Chippendales USA, Inc., 622 F.3d 1346,
96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its

53 Opposer’s Brief, pp. 15-16 (56 TTABVUE 22-23).
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conceptual strength (distinctiveness) and its marketplace strength.”); Bell’s Brewery,
Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1345 (TTAB 2017); Top Tobacco, L.P.
v. North Atl. Operating Co., Inc., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (the
strength of a mark is determined by assessing its inherent strength and its
commercial strength); Tea Board of India v. Republic of Tea Inc., 80 USPQ2d 1881,
1899 (TTAB 2006) (market strength is the extent to which the relevant public
recognizes a mark as denoting a single source); 2 J. Thomas McCarthy, MCCARTHY
ON TRADEMARKS AND UNFAIR COMPETITION § 11:80 (5th ed. March 2021 update) (“The
first enquiry is for conceptual strength and focuses on the inherent potential of the
term at the time of its first use. The second evaluates the actual customer recognition
value of the mark at the time registration is sought or at the time the mark is asserted
in litigation to prevent another’s use.”).
We turn first to the inherent or conceptual strength of REAL FOOD ORGANICS
when used in connection with “organic nutritional supplements.” As noted above,
Opposer registered REAL FOOD ORGANICS under the provisions of Section 2(f) of
the Trademark Act, 15 U.S.C. § 1052(f). For procedural purposes, a claim of
distinctiveness under Section 2(f), whether made in the application as filed or in a
subsequent amendment, may be construed as conceding that the matter to which it
pertains is not inherently distinctive and, thus, not registrable on the Principal
Register absent proof of acquired distinctiveness. See Cold War Museum, Inc. v. Cold
War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d 1626, 1629 (Fed. Cir. 2009)
(“Where an applicant seeks registration on the basis of Section 2(f), the mark's
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descriptiveness is a nonissue; an applicant’s reliance on Section 2(f) during
prosecution presumes that the mark is descriptive.”). The fact that Opposer
registered REAL FOOD ORGANICS on the Principal Register means that we
presume the mark to be valid. Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b).
Applicant introduced copies of five third-party registrations incorporating the
term “Real Food” used in connection with dietary or nutritional supplements. We list
the registrations in the table below:54
Mark Reg. No. Goods
REAL FOOD
TECHNOLOGY
3803143 Dietary and nutritional supplements
REAL FOOD.
REAL ENERGY
3744454 Nutritional energy bars for use as a meal
substitute
REAL FOOD BLENDS 4834567 Vitamin preparations; nutritionally
fortified beverages; nutritional drinks for
use as a meal replacements
REAL FOOD. REAL
BEAUTY. INSIDE OUT.
5105644 Dietary and nutritional supplements
REAL FOOD REAL FUEL
REAL FLAVOR
5625103 Nutritional supplement energy bars

We find that REAL FOOD ORGANICS is an inherently or conceptually weak
mark.
We now turn to the commercial strength or fame of Opposer’s REAL FOOD
ORGANICS mark. We may measure the commercial strength or fame of Opposer’s
REAL FOOD ORGANICS mark indirectly by the volume of sales of and advertising
expenditures for the goods and services identified by the mark at issue, “the length

54 45 TTABVUE 34-49. We did not consider pending applications because pending
applications are evidence only that applicants filed the applications on a certain date. See
Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007); Interpayment
Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003).
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of time those indicia of commercial awareness have been evident,” widespread critical
assessments and through notice by independent sources of the products and services
identified by the marks, as well as the general reputation of the products and services.
Bose Corp. v. QSC Audio Prods. Inc., 63 USPQ2d at 1305-06 and 1309. Raw numbers
alone may be misleading, however. Thus, some context in which to place raw
statistics may be necessary, for example, market share or sales, or advertising figures
for comparable types of goods or services. Id. at 1309.
Other contextual evidence probative of the renown of a mark may include:
● extent of catalog and direct mail advertising, email blasts, customer calls,
and use of social media platforms, such as Twitter, Instagram, Pinterest, and
Facebook, identifying the number of followers;
● the number of consumers that Opposer solicits through its advertising
throughout the year;
● local, regional, and national radio and television advertising campaigns, free-
standing print campaigns, and mentions in national publications;
● unsolicited media attention; and
● product placement in television and in movies.
Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d
1686, 1694 (Fed. Cir. 2018).
Finally, 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, Opposer has the duty to prove the fame of its
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mark clearly. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1720 (Fed. Cir. 2012) (citing Leading Jewelers Guild Inc. v. LJOW
Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007)).
Based on the evidence of record noted above, we find that Opposer has not proven
that REAL FOOD ORGANICS is famous, or even a commercially strong mark, when
used in connection with “organic nutritional supplements.” Because Opposer
designated its sales figures and advertising expenditures as confidential, we may
refer to them only in general terms. In terms of raw figures, Opposer’s sales figures
and advertising expenditures are modest. Opposer did not introduce any testimony
or evidence to show in even approximate terms its relevant market share. For
example, despite the fact that Opposer sells REAL FOOD ORGANICS supplements
to “anyone who purchases vitamins and nutritional supplements,”55 advertises in
“natural magazines that are distributed in natural stores and markets,”56 and sells
product in nationwide retail grocery store chains,57 as well as Amazon.com,58
Opposer’s Facebook account has only 104,000 followers.59 There is no testimony or
evidence regarding third-party recognition of Opposer’s REAL FOOD ORGANICS

55 Lucas Decl. ¶9 (30 TTABVUE 4). See also Lucas Decl. ¶16 (30 TTABVUE 5) (“Opposer’s
goods are marketed to ordinary consumers of all ages who purchase and use nutritional
supplements, i.e., to all consumers.”).
56 Lucas Decl. ¶5 (30 TTABVUE 3).
57 Lucas Decl. ¶6 (30 TTABVUE 3).
58 Lucas Decl. ¶8 (30 TTABVUE 3-4).
59 Lucas Decl. ¶14 (30 TTABVUE 5).
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mark (e.g., no articles that are about or refer to READ FOOD ORGANICS published
in newspapers, periodicals, or blogs).
In view of the suggestive nature of REAL FOOD ORGANICS and lack of
commercial strength that we may attribute to the mark, we find that it is a weak
mark on the spectrum from very strong to very weak, and, therefore, it is entitled to
a narrow scope of protection.
Nevertheless, we note that even weak marks are entitled to protection against
registration of similar marks for identical goods. See In re Max Capital Grp. Ltd.,
93 USPQ2d 1243, 1246 (TTAB 2010); see also King Candy v. Eunice King’s Kitchen,
182 USPQ at 109 (“Confusion is confusion. The likelihood thereof is to be avoided, as
much between ‘weak’ marks as between ‘strong’ marks, or as between a ‘weak’ and a
‘strong’ mark.”).
D. The similarity or dissimilarity of the marks.
We now turn to the DuPont factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression. DuPont, 177 USPQ at 567. “Similarity in any one of these elements may
be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC,
126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812
(TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019); accord Krim-Ko Corp. v.
Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is
sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”) (citation omitted).
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In comparing the marks, we are mindful that where, as here, the goods are closely
related, the degree of similarity necessary to find likelihood of confusion need not be
as great as where there is a recognizable disparity between the goods. Coach Servs.,
101 USPQ2d at 1721; Quadrex Corp. v. Inficon Leybold-Heraueus, Inc., 228 USPQ
300, 303 (TTAB 1985) (“A number of cases have indicated that the degree of similarity
in the goods is inversely proportional to the degree of similarity in the marks.”).
“The proper test is not a side-by-side comparison of the marks, but instead
‘whether the marks are sufficiently similar in terms of their commercial impression’
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1801 (Fed. Cir. 2018) (quoting Coach Servs., 101 USPQ2d at 1721).
Opposer’s mark is REAL FOOD ORGANICS and Applicant’s mark is CLEAN
REAL FOOD. The marks are similar in appearance and sound because they both
include the term “Real Food.”
The MERRIAM-WEBSTER DICTIONARY (merriam-webster.com) defines “real,” inter
alia, as “not artificial” and “genuine.”60 It defines “organic,” inter alia, as “of, relating
to, yielding, or involving the use of food produced with the use of feed or fertilizer of
plant or animal origin without employment of chemically formulated fertilizers,
growth stimulants, antibiotics, or pesticides.”61 Thus, the meaning and commercial

60 36 TTABVUE 25.
61 43 TTABVUE 2.
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impression engendered by the mark REAL FOOD ORGANICS is genuine organic
food.
The MERRIAM-WEBSTER DICTIONARY (merriam-webster.com) defines “clean,” inter
alia, as “free from dirt or pollution,” “free of contamination,” and “unadulterated,
pure.”62 Thus, the meaning and commercial impression engendered by Applicant’s
mark CLEAN REAL FOOD is pure or unadulterated genuine food.
The marks have similar, albeit not identical, meanings and engender similar,
albeit not identical, commercial impressions. Consumers may perceive “clean” (i.e.,
pure or unadulterated) as equivalent to “organic” (i.e., without the use of chemicals).
In this regard, Bruce Barlean testified that Applicant intends to use CLEAN REAL
FOOD to identify its “supplement/foods that do not have fillers, artificial ingredients,
or contaminants.”63 The description of Applicant’s intended products is similar to the
definition of “organic” (i.e., “without employment of chemically formulated fertilizers,
growth stimulants, antibiotics, or pesticides”).
Applicant contends that the marks are not similar, in part, because “Opposer
disclaimed two of the three words in its mark [food and organics], leaving ‘real’ as the
only non-disclaimed word; however, the USPTO required Applicant to disclaim ‘real’
(and ‘food’) in its Mark (43 TTABVUE). Simply sharing common, disclaimed words
such as ‘real’ or ‘food’ is a far cry from Opposer meeting its burden of demonstrating

62 36 TTABVUE 8.
63 Barlean Decl. ¶8 (55 TTABVUE 18).
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likelihood of confusion.”64 Even though Opposer disclaimed the exclusive right to use
“food organics” and Applicant disclaimed the exclusive right to use “real food,” we still
consider the marks in their entireties (i.e., REAL FOOD ORGANICS vs. CLEAN
REAL FOOD). See V-M Corp. v. Mayfair Sound Prods., Inc., 480 F.2d 898, 178 USPQ
477, 477-478 (CCPA 1973) (the disclaimer of part of a mark has no legal significance
in determining likelihood of confusion of the marks in their entireties); In re
Panavision, Inc., 183 USPQ 557, 558 (TTAB 1974) (Board must consider the
applicant’s mark in its entirety, even disclaimed matter). When so compared, the
marks REAL FOOD ORGANICS and CLEAN REAL FOOD are similar in their
overall appearance, sound, connotation and commercial impression.
E. The conditions under which the parties make sales.
Applicant contends that because “[t]he products are not garden-variety grocery
products, but premium, specialty items geared towards a savvy consumer with
particular needs,” the relevant customers are “sophisticated, health-conscious
consumers.”65 In this regard, Applicant intends to market its products to “health-
conscious consumers who want supplement/foods that do not have fillers, artificial
ingredients or contaminants.”66 However, Wendy Lucas, Opposer’s President and
Chief Operating Officer, identified Opposer’s customers as “all types and classes of
purchasers, being anyone who purchases vitamins and nutritional supplements,”67 as

64 Applicant’s Brief, p. 12 (57 TTABVUE 16).
65 Applicant’s Brief, p. 13 (57 TTABVUE 17).
66 Barlean Decl. 8 (55 TTABVUE 18).
67 Lucas Decl. ¶9 (30 TTABVUE 4).
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well as “ordinary persons of all ages who purchase and use nutritional supplements,
i.e., to all consumers.”68
Based on the nature of the goods at issue, we acknowledge that many relevant
consumers will exercise a higher degree of purchasing care when selecting dietary
supplements and organic nutritional supplements. However, some consumers might
be looking for a particular type of supplement as opposed to a specific brand. In
addition, Opposer’s products are not expensive. Amazon.com advertises 120 men’s
multivitamin tablets for $44.69 Walmart.com advertises 120 women’s multivitamin
tablets for $40.70 See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d
1317, 110 USPQ2d 1157, 1163-64 (Fed. Cir. 2014) (recognizing Board precedent
requiring consideration of the “least sophisticated consumer in the class”).
We find this DuPont to be neutral.
F. The nature and extent of any actual confusion.
Applicant asserts Opposer has failed to proffer any survey evidence or any other
evidence of actual confusion.71 However, the absence of any reported instances of
confusion is meaningful only if the record indicates appreciable and continuous use
by Applicant of its mark for a significant period of time in the same markets as those
served by Opposer under its mark. Citigroup Inc. v. Capital City Bank Grp., Inc.,
94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed.

68 Lucas Decl. ¶16 (30 TTABVUE 5).
69 29 TTABVUE 11.
70 29 TTABVUE 15.
71 Applicant’s Brief, p. 15 (57 TTABVUE 19).
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Cir. 2011); Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992).
In other words, for the absence of actual confusion to be probative, there must have
been a reasonable opportunity for confusion to occur. Barbara’s Bakery Inc. v.
Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the probative value of the absence
of actual confusion depends upon there being a significant opportunity for actual
confusion to have occurred); Red Carpet Corp. v. Johnstown Am. Enters. Inc.,
7 USPQ2d 1404, 1406-07 (TTAB 1988); Central Soya Co., Inc. v. N. Am. Plant
Breeders, 212 USPQ 37, 48 (TTAB 1981) (“[T]he absence of actual confusion over a
reasonable period of time might well suggest that the likelihood of confusion is only
a remote possibility with little probability of occurring.”).
In this case, because Applicant has not begun using the mark CLEAN REAL
FOOD, there has not been an opportunity for confusion to occur. Therefore, this
DuPont factor is neutral.
G. Conclusion
Because the marks are similar and the goods are closely related and are offered
in the same channels of trade, we find that Applicant’s mark CLEAN REAL FOOD
for “dietary supplements; food supplements” is likely to cause confusion with
Opposer’s registered mark REAL FOOD ORGANICS for “organic nutritional
supplements.”
Because we have found for Opposer on its likelihood of confusion claim, we need
not reach the merits of its claims under Sections 2(e)(1) of the Trademark Act and
whether Applicant had a bona fide intent to use its mark as of the filing date of the
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application. See Multisorb Techs., Inc. v. Pactiv Corp., 109 USPQ2d 1170 (TTAB
2013).
Decision: We sustain the opposition under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d), and registration to Applicant is refused.