David Dodart

Trademark Trial and Appeal Board

Jul 21, 1998

No. 74718351 (T.T.A.B. Jul. 21, 1998)

Hearing: Paper No. 11
November 19, 1997 PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JULY 21, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re David Dodart
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Serial No. 74/718,351
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K. S. Cornaby of Jones, Waldo, Holbrook & McDonough for
David Dodart.
Julia S. Shields, Trademark Examining Attorney, Law Office
109 (Deborah S. Cohn, Managing Attorney).
_______
Before Cissel, Hohein and Hairston, Administrative Trademark
Judges.
Opinion by Hairston, Administrative Trademark Judge:
David Dodart has filed an application to register the
mark LIFE SCIENCE PRODUCTS, INC. for services which were
subsequently described as “business marketing services for
dietary food supplements.”1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. 1052(d), on the ground

1 Ser. No. 74/718,351 filed on August 21, 1995, which alleges a
bona fide intention to use the mark in commerce. The words
“PRODUCTS, INC.” are disclaimed.
Ser No. 74/718,351
2
that applicant’s mark, if it were used in connection with
the identified services, so resembles the mark LIFE SCIENCE
and design, which is registered, as reproduced below,
for “dietary supplements and oral electrolyte solution for
veterinary use,”2 as to be likely to cause confusion,
mistake or deception.
Applicant has appealed. Briefs have been filed and an
oral hearing was held. We affirm the refusal to register.
In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and
the similarities in the goods and/or services.
Ser No. 74/718,351
3
Insofar as the goods and services are concerned, the
issue to be determined under Section 2(d) of the Act, in
cases such as this, is not whether the goods or services in
question are likely to be confused, but rather whether there
is a likelihood that purchasers or potential purchasers
thereof will be misled into the mistaken belief that they
emanate from the same source. See, e.g., In re Rexel Inc.,
223 USPQ 830 (TTAB 1984). It is for this reason that the
goods or services need not be identical or competitive
in nature in order to support a finding of likelihood of
confusion, it being sufficient for the purpose that the
goods and services be related in some manner and/or that the
circumstances surrounding their marketing are such that they
would be likely to be encountered by the same persons under
circumstances that could give rise, because of the
similarities between the marks used thereon, to the mistaken
belief that they originate from or are in some way
associated with the same source. See Hilson Research Inc.
v. Society for Human Resource Management, 27 USPQ2d 1423
(TTAB 1993).
In this regard, it has frequently been held that a
likelihood of confusion may result from the use by different
parties of the same or similar marks for goods, on the one
hand, and in connection with services which deal with those

2 Registration No. 1,171,901 issued on October 6, 1981; Sections
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4
goods on the other hand. See, e.g., In re Peebles Inc., 23
USPQ2d 1795 (TTAB 1992).
Further, it is well settled that the issue of
likelihood of confusion in a proceeding such as this must be
determined on the basis of the goods or services specified
in the subject application vis-à-vis those set forth in the
cited registration. See, e.g., Octocom Systems, Inc. v.
Houston Computers Services Inc., 918 F2d. 937, 16 USPQ2d
1783 (Fed. Cir. 1990) and Canadian Imperial Bank v. Wells
Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
In the present case, applicant’s recitation of services
reads simply “business marketing services for dietary food
supplements,” without any restrictions as to type of dietary
food supplements or as to channels of trade or classes of
purchasers. Thus, we must presume that the dietary food
supplements applicant intends to market are for both human
and/or veterinary use, they must be considered to travel in
all channels of trade which would be normal for such goods,
and they must be treated as suitable for sale to all
potential purchasers of such goods. See In re Elbaum, 211
USPQ 639, 640 (TTAB 1981).
In addition, the Examining Attorney has introduced
evidence that bears on the relationship between applicant’s
business marketing services for dietary food services and

8 and 15 affidavit filed.
Ser No. 74/718,351
5
registrant’s dietary supplements for veterinary use. In
particular, she made of record excerpts from the NEXIS data
base which demonstrate that manufacturers of dietary
supplements all market such supplements, and that dietary
supplements have been developed which may be used for both
humans and animals. We find, therefore, that applicant’s
business marketing services for dietary food supplements and
registrant’s dietary supplements for veterinary use are
sufficiently related that if, offered under the same or
substantially similar marks, confusion is likely.
Turning then to the marks, it is applicant’s position
that the marks are readily distinguishable because its mark
does not include a logo or design, whereas the registrant’s
mark includes a stylized design of a flask with bubbling
fluid. We agree with the Examining Attorney, however, that
applicant’s mark LIFE SCIENCE PRODUCTS, INC. and
registrant’s mark LIFE SCIENCE and design are substantially
similar in sound, appearance and commercial impression.
In considering the marks, we recognize that the design
in the registrant’s mark cannot be ignored. However,
although we have resolved likelihood of confusion upon
consideration of the marks in their entireties, there is
nothing improper in giving more weight, for rational
reasons, to a particular feature of a mark. In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
Ser No. 74/718,351
6
1985). In this case, we have given more weight to the words
LIFE SCIENCE in each of the respective marks. We have done
so in applicant’s mark because applicant has disclaimed
exclusive rights to use PRODUCTS, INC., thereby
acknowledging the descriptiveness of these words. We have
done so in registrant’s mark because, in terms of indicating
origin or affiliation, it is the words LIFE SCIENCE which
are most likely to be impressed upon a customer’s memory,
and which would be used by prospective purchasers when
requesting registrant’s goods. See In re Appetito
Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987)
Accordingly, we conclude that purchasers familiar with
registrant’s mark LIFE SCIENCE and design for dietary
supplements for veterinary use would be likely to believe,
upon encountering applicant’s mark LIFE SCIENCE PRODUCTS,
INC. for business marketing services for dietary food
supplements, that such goods and services emanate from or
are otherwise sponsored by or associated with a common
source.
Finally, to the extent that there is any doubt on the
issue of likelihood of confusion, it is well established
that such doubt must be resolved against the newcomer and in
favor of the prior user and registrant. In re Pneumatiques,
Caoutchouc Manufacture et Plastiques Kleber-Colombes, 487
F.2d 918, 179 USPQ 729 (CCPA 1973).
Ser No. 74/718,351
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Decision: The refusal to register under Section 2(d)
is affirmed.
R. F. Cissel
G. D. Hohein
P. T. Hairston
Administrative Trademark
Judges, Trademark Trial and
Appeal Board
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