Kantian Skincare, LLC

Trademark Trial and Appeal Board

Aug 25, 2020

87830488 (T.T.A.B. Aug. 25, 2020)

Mailed: August 25, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Kantian Skincare, LLC
_____

Serial No. 87830488
_____

Edwin D. Schindler of Edwin D. Schindler Patent Attorney
for Kantian Skincare, LLC.

Dezmona Mizelle-Howard, Trademark Examining Attorney, Law Office 110,
Chris A.F. Pedersen.
_____

Before Mermelstein, Bergsman and Greenbaum, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Kantian Skincare, LLC (Applicant) seeks registration on the Principal Register of
the mark SYNERGYZER, in standard character form, for “non-medicated skin care
preparations not for use as a dietary supplement or for dietary purposes,” in
International Class 3.1

1 Serial No. 87830488 filed March 12, 2018, 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
Serial No. 87830488

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The Examining Attorney refused to register Applicant’s mark under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so
resembles the registered mark NRF2 SYNERGIZER, in standard character form, for
“dietary and nutritional supplements; nutraceuticals for use as dietary and
nutritional supplements; functional foods for use as dietary or nutritional
supplements, namely, dietary and nutritional supplements; dietary or nutritional
supplements in the form of functional foods used for health management; all of the
foregoing for reducing oxidative stress,” in International Class 5, as to be likely to
cause confusion.2 Registrant disclaimed the exclusive right to use the term NRF2.3
I. Procedural Issue
Applicant filed a Request for Reconsideration from the Final Refusal on January
30, 2020.4 In her Denial of the Request for Reconsideration, the Examining Attorney
mistakenly stated, “The refusal relates to 4141517,” rather than Registration No.

2 Registration No. 5157248 registered March 7, 2017.
3 Nrf2 is a protein inside cells that modulates genes that are involved in (i) protecting cells
from oxidative stress caused by free radicals and other oxidants, (ii) maintaining the balance
between immune function and mediators of inflammation, (iii) providing cardiovascular
protection and responsiveness, (iv) protecting cells and organs from age-related loss of
function, and (v) maintaining cognitive function. Pathways Bioscience website
(pathwaysbio.com) attached to the July 30, 2019 Office Action (TSDR 8-12). See also
Wikipedia.org attached to the February 20, 2020 Denial of Request for Reconsideration
(6 TTABVUE 7) (“NRF2 is a basic leucine zipper (bZIP) protein that regulates the expression
of antioxidant proteins that protect against oxidative damage triggered by injury and
inflammation.”).
Citations to the prosecution record are to the USPTO’s Trademark Status and Document
Retrieval system (TSDR) in the downloadable .pdf format.
4 4 TTABVUE.
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5157248.5 Applicant filed an “Appeal Brief” requesting the USPTO to approve the
mark in its application for publication. To support its request for publication,
Applicant noted that the Examining Attorney never cited Registration No. 4141517
as a bar to registration, that the USPTO cancelled Registration No. 4141517 for
failure to file a declaration of use under Section 8 of the Trademark Act, and that the
refusal to register Applicant’s mark based on Registration No. 5157248 “has evidently
been withdrawn.”6 The Board forwarded the file the Examining Attorney as a matter
of course and set the date for the Examining Attorney’s brief.7
The Examining Attorney filed her brief glossing over the procedural error. The
Examining Attorney failed to correct or clarify the record and failed to give Applicant
the opportunity to prepare and file a brief based on the issue on appeal. Instead, the
Examining Attorney framed the issue as follows:
ISSUE
The examining attorney has withdrawn the Section 2(d)
refusal that is based on Registration No. 1,707,624.
Additionally, the examining attorney notes that any
Section 2(d) Refusal based on Registration No. 4,141,517
has been rendered moot because the cited registration has
been cancelled. The sole issue on appeal is whether the
applicant’s mark “SYNERGYZER,” used in connection
with the identified goods in International Classes 3, is
confusingly similar to the prior registered mark: “NRF2
SYNERGIZER,” used in connection with the identified
goods in International Class 5, thus creating a likelihood of

5 6 TTABVUE 3. Despite the typographical error, the Examining Attorney referred to the
mark NRF2 SYNERGIZER for “dietary and nutritional supplements” in the text of her
February 20, 2020 Denial of the Request for Reconsideration. Thus, it is unlikely Applicant
was misled or confused.
6 Applicant’s Appeal Brief, p. 2 (7 TTABVUE 3).
7 8 TTABVUE.
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confusion within the meaning of Section 2(d) of the
Trademark Act.8
After the Examining Attorney filed her brief, the Board gave Applicant sixty days
to file its brief on the case without noting the error or resetting the procedural posture
of the case:9
In view of the decision by the Trademark Examining
Attorney on April 27, 2020, the appeal is resumed.
Applicant is allowed until sixty days from the mailing date
hereof in which to file its brief herein. A request for an oral
hearing, if desired, must be made not later than ten days
after the due date for Applicant's reply brief.
In response, Applicant filed its brief on the case. We refer to Applicant’s second brief
as Applicant’s Supplemental Brief.10
Upon realizing the procedural errors, the Board set aside its April 28, 2020 order
giving Applicant time to file its brief on the case , quoted above, set aside Applicant’s
Supplemental Brief, and allowed Applicant time to file a reply brief.11 Applicant filed
a reply brief substantially identical to its Supplemental Brief.12
Because Applicant filed its Supplemental Brief and its Reply Brief after the
Examining Attorney filed her brief, Applicant had an opportunity to address the
arguments in the Examining Attorney’s brief and, therefore, suffered no prejudice
from the procedural errors during briefing.

8 Examining Attorney’s Brief (7 TTABVUE 4).
9 10 TTABVUE.
10 11 TTABVUE.
11 12 TTABVUE.
12 13 TTABVUE.
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II. 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), quoting DuPont, 177 USPQ
at 567. “Not all of the DuPont factors are relevant to every case, and only factors of
significance to the particular mark need be considered.” Cai v. Diamond Hong, Inc.,
901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018), quoting In re Mighty Leaf
Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010). See also M2 Software,
Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006);
ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015)
(“While we have considered each factor for which we have evidence, we focus our
analysis on those factors we find to be relevant.”).
“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
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) ;
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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, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002).
A. The number and nature of similar marks in use in connection with
similar goods.
Applicant contends that “synergy” and variations thereof are “extremely common,
either as unitary marks or as part of composite marks in connection with a broad
range of goods and services with a search of PTO registrations and pending
applications (on January 30, 2020) turning up 663 ‘live’ marks which include the word
‘synergy’; the first fifty marks being presented as ‘Appellant’s Appeal Brief Exhibit 2’
herewith.”13 Applicant attached the same table to its January 30, 2020 Request for
Reconsideration that displays the serial number, registration number, and word
mark. Because of the procedural anomalies discussed above, the Examining Attorney
did not have an opportunity to object to the evidence. We, therefore, do not consider
any objections that she might have raised to have been waived, and instead consider
the evidence for whatever probative value it may have.

13 Applicant’s Supplemental Brief, p. 6 (11 TTABVUE 7 and 32-33); Applicant’s Reply Brief,
pp. 5-6 (13 TTABVUE 6-7 and 32-33).
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Applicant’s table of search results has little, if any, probative value because it does
not list the goods or services and, therefore, we cannot determine whether any of the
third-party registrations cover the goods at issue.14 See Omaha Steaks Int’l v. Greater
Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686 (Fed. Cir. 2018) (error to rely
on third-party evidence of similar marks for dissimilar goods, as Board must focus
“on goods shown to be similar”); In re i.am.symbolic, LLC, 123 USPQ2d at 1751
(disregarding third-party registrations for other types of goods where the proffering
party had neither proven nor explained that they were related to the goods in the
cited registration); In re Thor Tech Inc., 90 USPQ2d 1634, 1639 (TTAB 2009) (the
third-party registrations are of limited probative value because the goods identified
in the registrations appear to be in fields which are far removed from the goods at
issue). A list of third-party registrations that does not include the goods or services
does not prove that the marks in the registrations are a weak term.
The RANDOM HOUSE UNABRIDGED DICTIONARY (2020) defines “synergy” as, inter
alia, “the interaction of elements that when combined produce a total effect that is
greater than the sum of the individual elements, contributions, etc.; synergism” and
“Biochemistry, Pharmacology. the cooperative action of two or more stimuli or
drug.”15

14 Pending applications are evidence only that applicants filed the applications on a certain
date; they are not evidence of use of the marks. In re Toshiba Med. Sys. Corp., 91 USPQ2d
1266, 1270 n.8 (TTAB 2009); In re Fiesta Palms LLC, 85 USPQ2d 1360, 1366 n.7 (TTAB
2007); Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007);
15 Dictionary.com accessed August 21, 2020. 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.
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The word “synergizer” in Registrant’s mark NRF2 SYNERGIZER, appears to be a
coined term because it does not have a dictionary entry and there is no other evidence
establishing that it is a standard English language word.16 Based on English
grammar, consumers are likely to perceive a “synergizer” as something that causes
products to interact with each other to achieve an effect. As applied to dietary
supplements, “synergizer” is an arbitrary term. As such, it is inherently distinctive.
We find, therefore, that the registered mark NRF2 SYNERGIZER is a conceptually
strong mark.
B. 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. Sept. 13, 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).

2016); In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018); In re Red Bull
GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
16 RANDOM HOUSE UNABRIDGED DICTIONARY via Dictionary.com accessed August 21, 2020;
Merriam-Webster.com accessed August 21, 2020.
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In comparing the marks, we are mindful that “[t]he 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, 127 USPQ2d at
1801 (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012)).
Applicant is seeking to register the mark SYNERGYZER and the registered mark
is NRF2 SYNERGIZER. The marks are similar in appearance, sound, connotation
and commercial impression because they share the coined words
“Synergyzer”/“Synergizer.”
Applicant’s substitution of the letter “I” for second “y” in “Synergyzer,” if even
noticed by consumers, does not distinguish Applicant’s mark SYNERGYZER from
Registrant’s mark NRF2 SYNERGIZER. Slight differences in marks do not normally
create dissimilar marks. Mag Instr. Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1714-
15 (TTAB 2010) (difference of a single letter does not suffice to distinguish MAG
STAR from MAXSTAR); Alfacell v. Anticancer Inc., 71 USPQ2d 1301, 1305 (TAB
2004) (ONCASE v. ONCONASE: “As seen and spoken, this middle portion may be
missed by many of the relevant purchasers.”); In re Total Quality Grp. Inc., 51
USPQ2d 1474, 1476 (TTAB 1999) (“Applicant’s mark STRATEGYN and registrant’s
mark STRATEGEN are phonetic equivalents and differ by only one letter.” ); In re
Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985) (“Moreover, although
there are certain differences between the [marks’ CAYNA and CANA] appearance,
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namely, the inclusion of the letter ‘Y’ and the design feature in applicant’s mark, there
are also obvious similarities between them. Considering the similarities between the
marks in sound and appearance, and taking into account the normal fallibility of
human memory over a period of time (a factor that becomes important if a purchaser
encounters one of these products and some weeks, months, or even years later comes
across the other), we believe that the marks create substantially similar commercial
impressions”).
The word “Synergizer” is the dominant part of the registered mark NRF2
SYNERGIZER because NRF2 is a component of Registrant’s dietary and nutritional
supplements that protects the user from the damage from antioxidants.17 It is
descriptive of an ingredient of Registrant’s products. Descriptive matter may have
less significance in likelihood of confusion determinations. See In re Detroit Athletic
Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing In re Dixie
Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)); Cunningham
v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding
descriptive terms, this court has noted that the ‘descriptive component of a mark may
be given little weight in reaching a conclusion on the likelihood of confusion.’”)
(quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985));
In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter
is often “less significant in creating the mark’s commercial impression”). There is
nothing improper in stating that, for rational reasons, more or less weight has been

17 See note 3 supra.
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given to a particular feature of a mark, such as a common dominant element, provided
the ultimate conclusion rests on a consideration of the marks in their entireties. In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); Nat’l Data
Corp., 224 USPQ at 751.
While there is no explicit rule that we must find marks to be similar where the
senior user’s mark incorporates the junior user’s entire mark, the fact Registrant’s
marks incorporates Applicant’s entire mark, albeit with a one letter difference,
increases the similarity of the two. See Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d
324, 153 USPQ 406, 407 (CCPA 1967) (THE LILLY as a mark for women’s dresses is
likely to be confused with LILLI ANN for women’s apparel including dresses). Cf. In
re Mighty Leaf Tea, 601 USPQ2d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010)
(applicant’s mark ML is similar to opposer’s mark ML MARK LEES both for personal
care and skin products); Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660
(TTAB 2014) (applicant’s mark PRECISION is similar to opposer’s mark PRECISION
DISTRIBUTION CONTROL); In re U.S. Shoe Corp., 229 USPQ 707, 709 (TTAB 1985)
(CAREER IMAGE for women’s clothing stores and women’s clothing likely to cause
confusion with CREST CAREER IMAGES for uniforms including items of women's
clothing).
In U.S. Shoe, the Board observed, “Applicant’s mark would appear to prospective
purchasers to be a shortened form of registrant ’s mark.” 229 USPQ at 709. Likewise,
Applicant’s mark SYNERGYZER appears to be a shortened form of Registrant’s mark
NRF2 SYNERGIZER. Consumers familiar with Registrant’s NRF2 SYNERGIZER
Serial No. 87830488

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dietary and nutritional supplements may perceive NRF2 SYNERGIZER as the line
of SYNERGYZER brand products dedicated to dietary and nutritional products.
Applicant argues that while NRF2 may be descriptive of a quality or ingredient of
dietary and nutritional supplements, it is not descriptive of non-medicated skin care
preparations and it is unlikely that even consumers of dietary and nutritional
supplements know the meaning of NRF2.18 Presumably, the point of this argument
is that consumers of non-medicated skin care preparations and most consumers of
dietary and nutritional supplements will view NRF2 as an arbitrary combination of
letters and, thus, they may view NRF2 as the dominant part of Registrant’s mark
thereby distinguishing the marks.
It is not at all clear that “Nrf2” does not operate as a source
indicator in the “Nrf2 Synergizer” registered mark, or that
it is not the prominent, or dominant, term in the registered
mark, and it is established that “Nrf2,” whatever the extent
that it may be seen as descriptive within the technical field
of nutrition, has no apparent significance for non-
medicated skin care preparations and, in the case of
Appellant’s recited goods, dietary and nutritional
supplements are explicitly excluded from the recitation of
goods, thereby rendering a comparison of the marks less
supportive of the Examining Attorney’s contention of there
being a likelihood of confusion.19
If, as Applicant argues, a significant segment of consumers do not recognize the
descriptive significance of NRF2 and view it as an arbitrary letter combination, the
consumers will be even more likely to rely on SYNERGIZER as the source indicating
part of Registrant’s mark. They will rely on the word “Synergizer” because they will

18 Applicant’s Brief, p. 4 (11 TTABVUE 5); Applicant’s Reply Brief, p. 5 (13 TTABVUE 6).
19 Applicant’s Brief, p. 5 (11 TTABVUE 6); Applicant’s Reply Brief, p. 5 (13 TTABVUE 6).
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recall that word, easily pronounce it, and use it to refer to the products. See Crystal
Corp. v. Manhattan Chem. Mfg. Co., 75 F.2d 506, 25 USPQ 5, 6 (CCPA 1935) (“We
think that it is well known that it is more difficult to remember a series of arbitrarily
arranged letters than it is to remember figures, syllables, words, or phrases.”); ECI
Division of E-Systems, Inc. v. Environmental Comm’ns Inc., 207 USPQ 443, 450
(TTAB 1980) (“it is recognized that it is more difficult to remember a series of
arbitrarily arranged letters than it is to remember figures, syllables, or phrases.”).
For these reasons, even though NRF2 is the first part of Registrant’s mark, it will
not be that part of Registrant’s mark that is most likely to be impressed upon the
mind of a purchaser and remembered. While the first term in a mark generally is
considered to be the feature which will be called for, and so remembered, by
consumers, this is not invariably the case. See Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (“the Board did
not err in finding that ‘STONE LION CAPITAL’ is ‘similar in sight, sound, meaning,
and overall commercial impression’ to ‘LION CAPITAL’ and ‘LION.’”); In re Chatam
Int’l Inc., 380 F.3d 1340, 1343, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (“Viewed in
their entireties with non-dominant features appropriately discounted, the marks
[GASPAR’S ALE for beer and ale and JOSE GASPAR GOLD for tequila] become
nearly identical.”).
The word “Synergizer” is clearly discernable and triggers the strongest impression
on consumers viewing Registrant’s mark. Under these circumstances and considering
that the marks share the words “Synergyzer”/“Synergizer,” words consumers will
Serial No. 87830488

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remember and can pronounce, we find that the similarities between the marks are
sufficient to outweigh the differences.
C. The similarity or dissimilarity and nature of the goods.
Applicant is seeking to register its mark for “non-medicated skin care
preparations not for use as a dietary supplement or for dietary purposes” and the
description of goods in the cited registration is “dietary and nutritional supplements;
nutraceuticals for use as dietary and nutritional supplements; functional foods for
use as dietary or nutritional supplements, namely, dietary and nutritional
supplements; dietary or nutritional supplements in the form of functional foods used
for health management; all of the foregoing for reducing oxidative stress.”
To show that the goods are related, the Examining Attorney submitted seven
third-party registrations for marks containing both goods.20 Third-party registrations
based on use in commerce that individually cover a number of different goods may
have probative value to the extent that they serve to suggest that the listed goods are
of a type that may emanate from the same source. 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).

20 January 7, 2019 Office Action (TSDR 12-24, 51-57, and 73-75).
We did not consider Registration Nos. 4686237 (TSDR 28-44), 4680293 (TSDR 45-47),
5343328 (TSDR 48-50), 5420805 (TSDR 58-61), and 4960426 (TSDR 62-66) because they were
registered under the provisions of Section 44(e) of the Trademark Act, 15 U.S.C. § 1126(e),
and not use in commerce.
We did not consider Registration Nos. 5235184 (TSDR 67-69) and 5482752 (TSDR 70-72)
because the registrations do not include goods in International Classes 3 or 5.
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The Examining Attorney also submitted excerpts from the Murad website
(murad.com)21 and the Perricone MD website (perriconemed.com)22 showing dietary
supplements used for skin care.
The excerpt from Registrant’s LifeVantage website (lifevantage.com) advertises
the sale of TRUESCIENCE anti-aging cream “With enhanced Nrf2 Technologies.”23
But TrueScience Anti-Aging Cream has a powerful way to
fight back. It’s a revolutionary approach to skincare that
delivers deep moisture to your skin and Nrf2 technologies
right to your cells so you can increase collagen production,
fight oxidative stress, and reduce the appearance of fine
lines, wrinkles, and crow’s feet.24
Likewise, a blog “NRF2 News & Reviews” announced Estée Lauder’s anti-aging skin
cream featuring Nrf2 (nrf2.com/estee-lauder-unveils-nrf2-antiaging-skincare-
product-revitalizing-supreme/), and also references Registrant’s Nrf2 skin care
product.
ESTÉE LAUDER UNVEILS NRF2 ANTIAGING
SKINCARE PRODUCT (REVITALIZING SUPREME)
* * *
The Estée Lauder product has been derived from black
bamboo extract. Black bamboo has NRF2 activation
properties, which according to Estée Lauder can revitalize
the skin from within. NRF2 can be described as a master
switch to turn on anti-aging properties within the human
cell. Currently the Estée Lauder product is not available in
the United States.

21 February 20, 2020 Denial of Request for Reconsideration (5 TTABVUE 4-5).
22 February 20, 2020 Denial of Request for Reconsideration (5 TTABVUE 6).
23 July 30, 2019 Office Action (TSDR 18).
24 July 30, 2019 Office Action (TSDR 19).
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A NRF2 Activator skin care product that is currently
available is a product called TrueScience, developed by Dr.
Kimberly Stone for a company called LifeVantage.25
Rather than submit any evidence to rebut the Examining Attorney’s evidence,
Applicant merely argued, “There is no overlap of goods between those recited in its
pending trademark application and the recitation of goods appearing in the applied
‘Nrf2 Synergyzer’ trademark registration.”26
In determining whether the goods are related, it is not necessary that Applicant’s
non-medicated skin care preparations and Registrant’s dietary and nutritional
supplements be similar or competitive in character to support a holding of likelihood
of confusion; it is sufficient goods are related in some manner or that conditions and
activities surrounding marketing of these goods are such that they would or could be
encountered by same persons under circumstances that could, because of similarities
of marks used with them, give rise to the mistaken belief that they originate from or
are in some way associated with the same producer. Coach Servs., 101 USPQ2d at
1722; Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1410 (TTAB
2010).
It is only necessary that there be a viable relationship between the goods to
support a finding that they are related. See In re Concordia Int’l Forwarding Corp.,
222 USPQ 355, 356 (TTAB 1983). The issue here, of course, is not whether purchasers
would confuse the non-medicated skin care preparations and dietary and nutritional

25 July 30, 2019 Office Action (TSDR 22-23).
26 Applicant’s Supplemental Brief, p. 9 (11 TTABVUE 10); Applicant’s Reply Brief, pp. 8 -9
(13 TTABVUE 9-10).
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supplements, but rather whether there is a likelihood of confusion as to the source of
these goods. See Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898
(Fed. Cir. 2000) (“[E]ven if the goods in question are different from, and thus not
related to, one another in kind, the same goods can be related in the mind of the
consuming public as to the origin of the goods.”); In re Cook Med. Techs. LLC, 105
USPQ2d 1377, 1380 (TTAB 2012); Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13
USPQ2d 1618, 1624 (TTAB 1989); In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
The evidentiary showing by the Examining Attorney, the seven third-party
registrations (the listed goods are of a type that may emanate from the same source),
the two websites showing dietary supplements used for skin care, and the two skin
care product companies advertising the use of Nrf2 technology in their skin care
preparations are sufficient to show that the goods are related. This is especially true,
where as here, the marks are so similar that the degree of similarity between the
goods required to support a finding of likelihood of confusion declines. In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688-1689 (Fed. Cir. 1993) (“even when the
goods or services are not competitive or intrinsically related, the use of identical
marks can lead to the assumption that there is a common source”); Time Warner
Entm’t Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB 2002) (“the greater the degree of
similarity between the applicant’s mark and the cited registered mark, the lesser the
degree of similarity between the applicant ’s goods or services and the registrant’s
goods or services that is required to support a finding of likelihood of confusion.”); In
re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001) (same).
Serial No. 87830488

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Applicant’s attempt to restrict the use of its non-medicated skin care preparations
by excluding its use as a dietary supplement or for dietary purposes does not serve to
distinguish the goods. First, the restriction does not make sense because there is no
evidence that consumers use non-medicated skin care preparations as dietary
supplements or for dietary purposes. Second, the restriction does not rebut the
evidence that non-medicated skin care preparations and dietary and nutritional
supplements may emanate from the same source.
We find Applicant’s “non-medicated skin care preparations not for use as a dietary
supplement or for dietary purposes” related to Registrant’s “dietary and nutritional
supplements; nutraceuticals for use as dietary and nutritional supplements;
functional foods for use as dietary or nutritional supplements, namely, dietary and
nutritional supplements; dietary or nutritional supplements in the form of functional
foods used for health management; all of the foregoing for reducing oxidative stress.”
D. Conclusion
Because the marks are similar and the goods are related, we find that Applicant’s
mark SYNERGYZER for “non-medicated skin care preparations not for use as a
dietary supplement or for dietary purposes” is likely to cause confusion with the
registered mark NRF2 SYNERGIZER for “dietary and nutritional supplements;
nutraceuticals for use as dietary and nutritional supplements; functional foods for
use as dietary or nutritional supplements, namely, dietary and nutritional
supplements; dietary or nutritional supplements in the form of functional foods used
for health management; all of the foregoing for reducing oxidative stress.”
Decision: The refusal to register Applicant’s mark SYNERGYZER is affirmed.