Dreamous Corporation USA

Trademark Trial and Appeal Board

Mar 18, 2005

No. 76431779 (T.T.A.B. Mar. 18, 2005)

Mailed: March 18, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Dreamous Corporation USA
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Serial No. 76431779
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Scott C. Tips of Tips & Associates for Dreamous Corporation USA.

Verna Beth Ririe, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
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Before Quinn, Hohein and Holtzman, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

An application has been filed by Dreamous Corporation USA
to register the mark COVITAL for the following goods, as amended:
"cold processed cosmetics, namely, skin creams, hair shampoo and
conditioner, and eye gels" in International Class 3.1

1 Application Serial No. 76431779, filed July 18, 2002, based on an
allegation of first use and first use in commerce on May 25, 2001. The
application was originally filed in Classes 3 and 5. The goods in
Class 5, which were identified as "cold processed vitamins, minerals,
herbs amino acids, hormones, and other nutrients," were subsequently
deleted from the application.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 76431779
2
The trademark examining attorney has refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), on
the ground that applicant's mark, when applied to applicant's
goods, so resembles the registered mark COVITOL for "liquid and
dry vitamin E concentrate for pharmaceuticals, medicines and
feeds" as to be likely to cause confusion.2
When the refusal was made final, applicant appealed. Briefs
have been filed. An oral hearing was not requested.
Here, as in any likelihood of confusion analysis, we look to
the factors set forth in In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973), giving particular
attention to the factors most relevant to the case at hand,
including the similarity of the marks and the similarity of the
goods. Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976)("The fundamental inquiry
mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and the
differences in the marks").
Applicant does not dispute the similarities in applicant's
mark COVITAL and registrant's mark COVITOL and, indeed, they are
strikingly similar in all respects. There is only one letter
difference in the marks, and that one letter does little to

2 Registration No. 766621, issued March 17, 1964; renewed.

Serial No. 76431779
3
distinguish one mark from the other in sound or appearance.
Moreover, the marks appear to be coined terms with no inherent
meaning, and therefore have no difference in meaning to
distinguish them. It is clear that these nearly identical marks,
if used on similar goods, would be likely to cause confusion.
The greater the degree of similarity in the marks, the
lesser the degree of similarity that is required of the products
on which they are used in order to support a finding of
likelihood of confusion. See Helene Curtis Industries Inc. v.
Suave Shoe Corp., 13 USPQ2d 1618 (TTAB 1989); and In re Concordia
International Forwarding Corp., 222 USPQ 355 (TTAB 1983).
However, the goods must still be related in some viable manner
such that they would be encountered by the same persons under
circumstances that could, because of the similarity of the marks
used thereon, give rise to the mistaken belief that they emanate
from or are associated with the same source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
The examining attorney argues that the respective goods are
in part identical and otherwise closely related in that cosmetic
preparations and vitamins are used for the same purposes. In
support of her position, the examining attorney has submitted a
number of third-party registrations which show, in each instance,
a mark which is registered by the same entity for both vitamins
and cosmetic products. The examining attorney has also submitted
Serial No. 76431779
4
Nexis evidence and excerpts from third-party websites which show,
she contends, that "liquid Vitamin E concentrate, such as is
offered by the registrant, is, like the applicant's goods used as
a cosmetic skin cream or eye gel." The examining attorney
points, in particular, to several of the third-party
registrations which, according to the examining attorney,
"identify Vitamin E as a type of cosmetic cream, lotion or gel or
as a principal component of such cosmetic preparations." Noting
that applicant itself had originally applied for registration for
goods in Class 5 that included cold processed vitamins, the
examining attorney concludes that not only is it commonplace in
the market for the same company to provide both cosmetic and
vitamin products, but applicant, by its own admission, provides
both products.
We disagree with the examining attorney's analysis.
Applicant's goods are cosmetic products. Registrant's goods are
identified as "liquid and dry vitamin E concentrate for
pharmaceuticals, medicines and feeds." There may be an inherent
relationship between vitamin E and cosmetics in the sense that
vitamin E may often be used as a component or ingredient of
cosmetic products, such as moisturizers or body oils or skin
creams, or it may even be the cosmetic product itself, such as
"vitamin E sticks for lips and around eyes" or liquid vitamin E
for use as a moisturizing product. However, the product
Serial No. 76431779
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identified in the registration is not vitamin E, per se, but
instead is a "vitamin E concentrate." The third-party
registrations submitted by the examining attorney are lacking in
probative value because they do not show that the same companies
have adopted the mark for cosmetics and the same type of product
identified in the registration, that is, "vitamin E concentrate."
Nor do the Nexis references and website materials show that the
latter is produced or sold, even as a component of other
products, by the same companies who produce cosmetics.
Moreover, we have no evidence that registrant's products,
even if they were identified as just vitamins, would be
encountered in the same channels of trade by the same purchasers,
and it appears unlikely that they would. As identified,
registrant's goods are "for pharmaceuticals [and] medicines,"
signifying that registrant's vitamin E concentrate is for use as
an ingredient in pharmaceuticals and medicines. Registrant is
not providing an end product containing or consisting of vitamin
E, such as hand creams with vitamin E or vitamin E eye sticks.
Registrant is providing the component of a product. It is
reasonable to assume that the vitamin component or ingredient of,
for example, hand cream, would be marketed to manufacturers of
the hand cream, in this case pharmaceutical companies, while the
hand cream containing the component would be sold to ultimate
consumers. There is nothing in the record to indicate that the
Serial No. 76431779
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purchasers of hand cream containing a vitamin component, let
alone a vitamin concentrate component, would ever be exposed to
or be aware of a separate mark for the component, or that the
mark for a component would even be used in the retail market or
appear on the end product at all.
Thus, we find, notwithstanding the near identity of the
marks, that in view of the differences in the respective goods
and the channels of trade and purchasers for those goods, there
is no likelihood of confusion.
Decision: The refusal to register is reversed.