Integrated Health, Inc.

Trademark Trial and Appeal Board

Jan 7, 1998

No. 74657225 (T.T.A.B. Jan. 7, 1998)

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JAN 7, 98
Paper No. 12
RLS/AKP
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Integrated Health, Inc.
________
Serial No. 74/657,225
_______
Thomas T. Chan of Chan Law Group PLC for Integrated Health,
Inc.
Laura Smith, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney)
_______
Before Simms, Cissel and Walters, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:
Integrated Health, Inc. (applicant), a California
corporation, has appealed from the final refusal of the
Trademark Examining Attorney to register the mark VIVA LIFT
for nutritional supplements, namely, vitamins, amino acids
and combinations of same.1 The Examining Attorney has
refused registration under Section 2(d) of the Act, 15 USC
1052(d), based upon Registration No. 1,821,954, issued
Ser No. 74/657,225
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February 15, 1994, covering the mark VIVA SHIELD for
vitamins and food supplements, and Registration No.
1,823,566, issued February 22, 1994, covering the mark VIVA
FOR LIFE for vitamins and food supplements. Both of these
registrations are owned by Viva America Marketing, Inc., a
California corporation.
We affirm.
Essentially, it is applicant’s position that the
registered marks and applicant’s mark are dissimilar in
sound, appearance and meaning, with the last words in each
mark being distinguishable.
[A]ssuming that the highly suggestive
VIVA portions of the marks are used to
suggest a revival, renewal or other
invigoration, the addition of LIFT
serves to reinforce the suggestion of
the uplifting/invigoration aspect of the
mark. VIVA SHIELD connotes an
impression of vigorous protection and/
or the warding off of an unidentified
evil, and thereby creates a commercial
impression which is distinguishable from
VIVA LIFT…
The meaning of the terms FOR LIFE
serve to emphasize that Registrant’s
product is intended to have a positive
effect on the quality of life and/or
possibility on longevity.
Applicant’s appeal brief, 6. Applicant argues that the
element VIVA of the registered marks is “weak” and highly
suggestive and that consumers will be able to avoid

1 Application Serial No. 74/657,225, filed March 31, 1995, based
upon applicant’s use of the mark in commerce since on or before
May 16, 1989.
Ser No. 74/657,225
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confusion of the marks when considered in their entireties.
In this regard, applicant notes that VIVA connotes “life”
and “living.”2 Applicant has made of record dictionary
definitions of this word as well as a third-party
registration covering the mark ROYAL VIVA registered for
vitamin supplements, as support for its argument that the
VIVA element of the mark is weak. Finally, applicant argues
that purchasers of vitamins are likely to exercise special
care in making their product selections.
The Examining Attorney, on the other hand, argues:
It is the Examining Attorney’s
position that VIVA is the dominant
portion of the marks at issue. It is a
foreign word for most of the
overwhelmingly English speaking market
in the United States. As such, it
appears as exotic, or eye-catching, and
thus is the dominant feature of the
mark. Moreover, it is the Examining
Attorney’s position that consumers will
not ponder over the subtleties of
meaning between “for life” and “shield”
as opposed to applicant’s “lift”. They
will see the term VIVA as the exotic,
dominant part of the mark, followed by a
more concrete term with a vaguely
positive connotation as applied to the
goods at issue and will conclude that
the identical goods carrying the VIVA
mark originate from the same source.
Another point of similarity between
the marks is the identical format. That
is, the marks not only all contain the
unusual term VIVA, but also that it is
always the first element of the marks.
The marks all follow the identical

2 In this connection, applicant has argued that “viva” means
“long live” in both Italian and Spanish.
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format, VIVA, followed by matter
suggestive of good health.
Examining Attorney’s appeal brief, 4.
We agree with the Examining Attorney that one feature
of a mark may be accorded more significance in the
likelihood-of-confusion analysis, and that VIVA is,
obviously, an important element of each of the marks in
creating a commercial impression. Upon careful review of
this record and the arguments, we conclude that confusion is
likely when consumers encounter applicant’s mark VIVA LIFT
for nutritional supplements including vitamins in the
marketplace.3 With respect to essentially identical goods,
we believe that purchasers and potential purchasers, who are
familiar with registrant’s VIVA SHIELD and VIVA FOR LIFE
vitamins and food supplements, who then encounter
applicant’s VIVA LIFT vitamins and amino acids, are likely
to believe, because of the similarities of the marks, that

3 While the Examining Attorney has cited only two registered
marks against applicant, in the Office action issued October 10,
1996, the Examining Attorney, in support of her argument that
VIVA is the dominant part of the registered marks and has not
been diluted, notes that the registrant is the owner of other
registrations which include the word VIVA, for identical or
related goods. Those registered marks include VIVA CONCENTRATE
for ingredient component of dietary supplements (Registration No.
1,835,127, issued May 10, 1994); VIVA GUARD for dietary
supplements (Registration No. 1,835,126, issued May 10, 1994);
VIVA GREEN BARLEY for vitamins and food supplements (Registration
No. 1,821,955, issued February 15, 1994); VIVA KIDS for vitamins
and food supplements (Registration No. 1,833,092, issued April
26, 1994); and VIVA STAMINA for vitamins (Registration No.
1,723,202, issued October 13, 1992). The Examining Attorney
states that these registered marks “are not being cited against
the applicant but are merely for informational purposes.”
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all of these vitamins and supplements come from the same
source.
Decision: The refusal of registration is affirmed.
R. L. Simms
R. F. Cissel
C. E. Walters
Administrative Trademark
Judges, Trademark Trial
and Appeal Board
Ser No. 74/657,225
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