88161043 (T.T.A.B. Feb. 5, 2021)

LKK Health Products Group Limited

Trademark Trial and Appeal BoardFeb 5, 2021

88161043 (T.T.A.B. Feb. 5, 2021)

THIS ORDER IS NOT A PRECEDENT OF THE TTAB Mailed: February 5, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re LKK Health Products Group Limited _____ Serial Nos. 88160772, 88160995, 88161010, 88161037, 88161043, 88161047 _____ Charles P. LaPolla of Amster, Rothstein & Ebenstein LLP, for LKK Health Products Group Limited. Laura D. Golden, Trademark Examining Attorney, Law Office 103, Stacy Wahlberg, Managing Attorney. _____ Before Zervas, Wolfson and Lynch, Administrative Trademark Judges. By Wolfson, Administrative Trademark Judge: LKK Health Products Group Limited (“Applicant”) seeks registration of the mark ORIHERB (in standard characters) on the Principal Register for various vitamins, minerals and supplements in International Class 5.1 Applicant also seeks registration of the composite marks depicted below: 1 Application Serial No. 88161010 was filed on October 18, 2018 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1052(b), based on Applicant’s allegation of its bona fide intent to use the mark in commerce. Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 2 - Serial No. Filing Date Mark 88160772 10/18/2018 88160995 10/18/2018 88161043 10/18/2018 88161047 10/18/2018 88161037 10/18/2018 Each application was based upon Applicant’s allegation of its bona fide intent to use the mark in commerce under Trademark Act Section 1(b), 15 U.S.C. § 1051(b), and includes the following goods in International Class 5.2 Vitamin preparations; cod liver oil; tonics being medicines, namely, pharmaceutical preparations for the treatment of immune diseases, disorders of immune system and skin 2 The applications also encompass goods in International Class 30 that are not subject to the refusal. Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 3 - diseases; medicinal drinks; dietary fiber being dietary supplements; royal jelly for medicinal use; ginseng for medicinal use; dried goji berry for medicinal use, namely, medical herbs in dried form; starch for pharmaceutical purposes; starch for dietetic purposes, adapted for medical use; asthmatic tea; medicinal tea; by-products of the processing of cereals for medical purposes; by-products of the processing of cereals for dietetic purposes, adapted for medical purposes; slimming pills, namely, medicinal preparations for slimming purposes; antioxidant pills, namely, nutritional supplements containing antioxidants; slimming tea for medical purposes; pharmaceutical preparations for skin care; dietetic substances being dietetic food, namely, pasta and crackers adapted for medical use; mineral food supplements; nutritional supplements; albumin dietary supplements; flaxseed dietary supplements; flaxseed oil dietary supplements; wheat germ dietary supplements; royal jelly dietary supplements; propolis dietary supplements; pollen dietary supplements; enzyme dietary supplements; glucose dietary supplements; lecithin dietary supplements; alginate dietary supplements; casein dietary supplements; protein dietary supplements; food for babies; depuratives, namely, purgatives; dietary supplements for animals; pesticides; antisepsis paper, namely, antiseptic wipes; medicine health bag being medicinal herbs for general health and well-being contained in a small bag; rubber for dental purposes; diapers for pets; medicinal herbs; malted milk drinks for medicinal purposes; tortoise herb jelly for medicinal purposes; medicated confectionery.”3 The Examining Attorney refused registration for the marks in Class 5 under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a prior registration for the 3 Applicant has described the marks that include Chinese characters as consisting “of three Chinese characters appearing above the term ‘oriherb’ in stylized font. The third Chinese character is enclosed in a circle with a cloud motif appearing inside the lower right edge of the circle.” The composite mark without Chinese characters is described as “the term ‘oriherb’ in stylized characters. The letter ‘b’ is enclosed in a circle with a cloud motif appearing inside the lower right edge of the circle.” Color is not claimed as a feature in any of the marks. The transliteration statement in the marks with Chinese characters is: “The non-Latin characters in the mark transliterate to ‘Yang,’ ‘Gu’ and ‘Jian’ and this means ‘foster, raise’; ‘firm, stable’; ‘strong, be good at’ respectively in English.” Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 4 - mark depicted below for “dietary supplements.”4 When the refusals were made final, Applicant filed a Request for Reconsideration in each case and appealed to this Board. Following denials of Applicant’s Requests for Reconsideration, the appeals resumed. The Board suspended proceedings pending final disposition of Cancellation No. 92075205, involving the cited registration.5 That cancellation action has been resolved without change in status of the cited registration; accordingly, proceedings herein are resumed. Briefs were filed in each appeal. Following briefing, the appeals were consolidated. We address the issue of likelihood of confusion with regard to each of Applicant’s marks in this consolidated appeal.6 4 Reg. No. 5450131 issued April 17, 2018 for “cosmetics; non-medicated skin care preparation” in International Class 3 and “dietary supplements” in International Class 5. The description of the mark reads: “The mark consists of the stylized letters ‘ORI’ stacked above the words [sic] ‘HEALTHY’. There is a line coming out of the letter ‘O’ in ‘ORI’.” The term “HEALTHY” is disclaimed. Color is not claimed as a feature of the mark. 5 14 TTABVUE. 6 Except where specifically indicated otherwise, references to the Board’s electronic database, TTABVUE, are to the entry and page number(s) in Serial No. 88161010. References to the prosecution file histories are to the USPTO’s Trademark Status and Document Retrieval (TSDR) database in Serial No. 88161010. Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 5 - I. Likelihood of Confusion A. Legal Standard Our determination of likelihood of confusion is based on an analysis of all the probative facts in evidence that are relevant to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973) (“DuPont”). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We make that determination on a case-by-case basis, On-Line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1474 (Fed. Cir. 2000), aided by the application of the factors set out in DuPont. We consider each DuPont factor for which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019); In re Country Oven, Inc., 2019 USPQ2d 443903, at *2 (TTAB 2019). “In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and services.” In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004), cited in Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, at *5 (TTAB 2019). See also In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017). A. Relatedness of the Services; Channels of Trade; Classes of Consumers The second and third DuPont factors consider the relatedness of the involved goods, their trade channels, and classes of consumers. DuPont, 177 USPQ at 567. We consider the goods as they are identified in Applicant’s applications and the cited Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 6 - registration. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014). The compared goods need not be identical or even competitive to find a likelihood of confusion. See On-line Careline, 56 USPQ2d at 1475; Recot, Inc. v. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that the goods emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7- Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). In each of Applicant’s applications, the identified goods include: dietary fiber being dietary supplements; albumin dietary supplements; flaxseed dietary supplements; flaxseed oil dietary supplements; wheat germ dietary supplements; royal jelly dietary supplements; propolis dietary supplements; pollen dietary supplements; enzyme dietary supplements; glucose dietary supplements; lecithin dietary supplements; alginate dietary supplements; casein dietary supplements; protein dietary supplements; dietary supplements for animals. Registrant’s goods are “dietary supplements,” without any limitation or restrictions. Registrant’s goods are broadly worded to encompass Applicant’s more narrowly described types of dietary supplements. Therefore, the goods are in-part legally identical. When the respective identifications list legally identical goods, without restrictions as to channels of trade or classes of purchasers, as is the case here, those legally identical goods are presumed to travel in the same channels of trade to the same class of purchasers. Brooklyn Brewery Corp. v. Brooklyn Brew Shop, LLC, 2020 Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 7 - USPQ2d 10914, *14 (TTAB 2020) (citing In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion)); DeVivo v. Ortiz, 2020 USPQ2d 10153, *13 (TTAB 2020) (applying presumption to identical and closely- related goods) (citing Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)). We need not consider the similarity of the other goods set forth in Applicant’s identification of goods because registration must be refused as to a particular class if Applicant’s mark for any of its identified goods in that class is likely to cause confusion with the Registrant’s mark for any of its identified goods. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 938-39 (Fed. Cir. 1983) (holding that a single good from among several may sustain a finding of likelihood of confusion); Double Coin Holdings, Ltd. v. Tru Dev., 2019 USPQ2d 377409, *6 (TTAB 2019) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (likelihood of confusion must be found if confusion is likely with respect to any item that comes within the identification of goods or services in the application). Nonetheless, the Examining Attorney has submitted excerpts from third-party websites, showing that companies who sell dietary supplements also sell a wide variety of vitamins, supplements, and food products that provide health benefits. For example: Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 8 - FoodScience of Vermont offers various supplements (e.g., coconut & flax oil, amino acid, antioxidant, immune support, mineral, and “specialty health” supplements) as well as multivitamins under the mark FOODSCIENCE. At www.foodscienceofvermont.com; August 27, 2019 Office Action TSDR 5. Nature Made offers vitamins, minerals and supplements under the mark NATURE MADE. At www.naturemade.com; Id. at TSDR 7. Nature’s Truth offers food supplements, minerals, multivitamins and herbs at www.naturestruth products.com.; Id. at TSDR 8. This evidence supports a finding that Applicant’s remaining goods are closely related to Registrant’s goods. See, e.g., Hewlett-Packard, 62 USPQ2d at 1004 (evidence that “a single company sells the goods and services of both parties, if presented, is relevant to a relatedness analysis”); In re Country Oven, Inc., 2019 USPQ2d 443903, *10 (TTAB 2019) (finding examples of bakeries that use the same mark in connection with retail bakery shops and bakery products “bolsters our finding of relatedness”). The legal identity of Applicant’s and Registrant’s goods and their overlapping channels of trade and classes of consumers strongly favors a finding of likelihood of confusion. The same applies to those goods which are not legally identical but are closely related. With regard to these closely related goods, the Examining Attorney has also shown through the same evidence that they travel through similar trade channels to the same classes of consumers.7 7 E.g., FoodScience of Vermont also offers digestive enzymes and essential fatty acids on the same page as it offers supplements and multivitamins; (August 27, 2019 Office Action TSDR Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 9 - B. Similarity of the Marks We compare Applicant’s marks with the Registrant’s mark “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). (quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” Inn at St. John’s, 126 USPQ2d at 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). We assess not whether the marks can be distinguished in a side- by-side comparison, but rather whether their overall commercial impressions are so similar that confusion as to the source of the goods offered under the respective marks is likely to result. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (citing Coach Servs., 101 USPQ2d at 1713). In comparing the marks, we are mindful that where, as here, the goods are in part legally identical, 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; Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Schering-Plough HealthCare Prods. Inc. v. Ing- Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007). 5) and Nature’s Truth offers aromatherapy, creams, gels and serums, essential oils, powders, and sports nutrition on the same page as supplements and multivitamins (Id. at 8). Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 10 - For convenience, we repeat that the cited mark is and Applicant’s marks are ORIHERB (standard character mark), (ORIBHERB and design mark) and the term ORIHERB in stylized font with Chinese characters and design (the Chinese character marks). The Examining Attorney argues that “the wording ORI is the dominant and source-indicating wording in the marks.” Examining Attorney’s Brief, 9 TTABVUE 7. She contends that the term “HEALTHY” is of lesser significance in creating a commercial impression in the cited mark because it is merely descriptive of dietary supplements, and has been disclaimed. “Disclaimed matter that is descriptive of or generic for a party’s goods and/or services is typically less significant or less dominant when comparing marks.” Examining Attorney’s August 27, 2019 Final Office Action (citing In re Detroit Ath. Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018)). She also contends that the term “HERB” in Applicant’s marks is of lesser significance because it is merely descriptive of the goods, which include “various herbal supplements and medicinal herbs.” 9 TTABVUE 8. Applicant agrees that “it is true that the terms HEALTHY and HERB do not have strong distinctiveness,” 7 TTABVUE 10, but contends that “this does not overcome that fact” that the design features of its ORIHERB and design mark and Chinese character marks are sufficient to distinguish the marks. Id. Applicant contends that the Chinese characters “create strong visual differences and have distinguishing translations” and that the Chinese character marks (as well as its ORIHERB and Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 11 - design mark) further include “a very distinctive and distinguishing design element consisting of a highly stylized circle with a cloud motif.” 6 TTABVUE 10, in Serial No. 88160772. These features allegedly contrast with the cited mark’s design element, which Applicant describes as “a highly stylized rendition of the term ORI with a uniquely shaped line coming out of the letter ‘O.’” Id. When a mark comprises both a word and a design, the word is normally accorded greater weight because it would be used by purchasers to request the goods or services. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra, 101 USPQ2d at 1908)); In re Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987). Applicant cites Parfums de Coeur Ltd. v. Lazarus, 83 USPQ2d 1012, 1016 (TTAB 2007) as support for its position that the Board may, in appropriate circumstances, give greater weight to a design component of a composite mark than it does to the words of the mark. In Parfums de Coeur, the Board found that the grotesque nature of the “eye- catching” design in the mark was “far different” from the “figure of a good- looking desirable man” that appeared on displays and product packaging of the opposer’s goods. Id. at 83 USPQ2d 1015. Here, Applicant’s marks contain far more subtle designs and more prominent wording. The cloud designs in Applicant’s marks are carriers for the lettering, and the Chinese characters, meaning “foster or raise;” “firm or stable;” and “strong or be good at,” will likely be taken as promotional language (e.g., “raise solid health”) to those who speak Chinese, touting the desirable quality of the goods. With regard to the design in the cited mark, it embellishes the Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 12 - letter “O,” drawing the consumer’s attention to the term ORI in the mark, which in any event is far larger than the descriptive wording “HEALTHY.” “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.” Coach Servs., 101 USPQ2d at 1721, cited in In re Ox Paperboard, LLC, 2020 USPQ2d 10878, *3 (TTAB 2020). The proper focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. In re FabFitFun, Inc., 127 USPQ2d 1670, 1675 (TTAB 2018); see also In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB 2016) (citing Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d per curiam, 972 F.2d 1353 (Fed. Cir. 1992)). While we must consider the marks in their entireties, in articulating reasons for reaching a conclusion on the issue of likelihood of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark. In re Viterra, 101 USPQ2d at 1908; In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“Indeed, this type of analysis appears to be unavoidable.”). Here, we find that the design features of the cited mark and of Applicant’s marks are not so “eye-catching” as to outweigh the prominence of the arbitrary terms ORIHERB in Applicant’s mark and ORI in the mark of the registration. The portion of Applicant’s marks and Registrant’s mark that will be remembered Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 13 - and recalled best by consumers is “ORI.” The Court of Appeals for the Federal Circuit has often held that the lead element in a mark has a position of prominence; it is likely consumers will notice and remember the first part of a mark as it plays a dominant role in the mark. See Detroit Ath. Co., 128 USPQ2d at 1049 (finding “the identity of the marks’ two initial words is particularly significant because consumers typically notice those words first”); Palm Bay, 73 USPQ2d at 1692 (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the first word to appear on the label); Century 21, 23 USPQ2d at 1700 (upon encountering the marks, consumers will first notice the identical lead word). For these reasons, the Board agrees with the Examining Attorney that ORI is the dominant portion of each mark. The marks are similar in appearance and pronunciation due to this shared element. As for connotation, Applicant argues that ORI in the cited mark is a weak component of the mark, based on ten third-party registrations for ORI-derivative marks. Request for Reconsideration 4 TTABVUE 13- 28. Although third-party registrations are not evidence of use of the registered marks in the marketplace, they may show “the sense in which the word is used in ordinary parlance and may show that a particular term has descriptive significance as applied to certain goods or services.” Institut Nat’l Des Appellations D’Origine v. Vintners Int’l Co., 958 F.2d 1574, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992); see also, In re Box Solutions Corp., 79 USPQ2d 1953, 1955 (TTAB 2006) (“[T]hird-party registrations Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 14 - can be used in the manner of a dictionary definition to illustrate how a term is perceived in the trade or industry”). Here, only four of the third-party registrations are for related goods,8 and the marks include additional distinctive wording, unlike the descriptive wording in Applicant’s and Registrant’s marks: Reg. No. 5081455 – ORIGENERE for dietary and nutritional supplements; vitamin preparations Reg. No. 4669256 – ORIHIRO for dietary and nutritional supplements for humans Reg. No. 4657309 – ORISETT for nutritional additive for blood sugar control purposes for use in dietary supplements Reg. No. 4197123 – ORICO for vitamins; mineral nutritional supplements The third-party registrations are not persuasive that the term ORI has a particular meaning in the industry. Viewing Applicant’s marks and Registrant’s mark in their entireties, we find that the marks are similar in sight, sound, connotation and overall commercial impression. “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Davia, 110 USPQ2d at 1812; see also TBC Corp. v. Holsa Inc., 126 F.3d 1470, 44 USPQ2d 1315, 1318 (Fed. Cir. 1997); In re 8 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 goods in other classes where the proffering party “has neither introduced evidence, nor provided adequate explanation to support a determination that the existence of I AM marks for goods in other classes, … support a finding that registrants’ marks are weak with respect to the goods identified in their registrations”). Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 15 - Sarkli, Ltd., 721 F.2d 353, 220 USPQ 111, 113 (Fed. Cir. 1983); In re Ox Paperboard, 2020 USPQ2d 10878 at *3. The first DuPont factor favors a finding of likelihood of confusion. C. Purchaser Sophistication Applicant argues that confusion is unlikely because the relevant consumers are discerning purchasers, and the prices of dietary and nutritional supplements “are likely to be significant, and in some cases, can be very high.” 7 TTABVUE 12-13. Applicant further argues that these goods affect a person’s health, and therefore “purchasers are strongly influenced by the quality of the goods and the reputation of the sellers” and likely to exercise care. Id. There is no evidence supporting Applicant’s arguments, and they are therefore not well-taken. The consumers for dietary and nutritional supplements may include sophisticated buyers, but would also include unsophisticated and even first-time shoppers who have no special knowledge and would not necessarily exercise heightened care. See Stone Lion Capital, 110 USPQ2d at 1163 (“Board precedent requires the decision to be based ‘on the least sophisticated potential purchasers.’” (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A., 100 USPQ2d 1584, 1600 (TTAB 2011), judgment set aside on other grounds, 2014 WL 343267 (TTAB 2014). “[W]e must be sensitive to the fact that patients [or consumers] from the general public will not exercise the degree of care exhibited by medical professionals.” Alfacell Corp. v. Anticancer Inc., 71 USPQ2d 1301, 1306 (TTAB 2004). Even if we were to assume that all relevant buyers are sophisticated and careful Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 16 - purchasers, it is settled that even careful purchasers can be confused as to source where similar marks are used on identical goods. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)) (“Human memories even of discriminating purchasers … are not infallible.”). This DuPont factor is neutral. D. DuPont Factor Thirteen - Any other established fact probative of the effect of use Applicant argues that its prior applications9 should have been cited as bars to registration of the cited mark because they were filed first. To the extent that Applicant is claiming that the cited registration should not have issued or cannot be maintained, Applicant is attacking the validity of the registration. The proper action for attacking the validity of a registration is a cancellation action. Bond v. Taylor, 119 USPQ2d 1049, 1055 (TTAB) (citing Fiserv, Inc. v. Elec. Transaction Sys. Corp., 113 USPQ2d 1913, 1919 n.7 (TTAB 2015); see also In re Dixie Rests., 105 F.3d 1405, 1408, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997); Edom Labs., Inc. v. Lichter, 102 USPQ2d 1546, 1549 n.6 (TTAB 2012). A trademark registration on the Principal Register is prima facie evidence of the validity of the registration and the registrant’s exclusive right to use the mark in commerce in connection with the specified goods and/or services. 15 U.S.C. §1057(b). Absent a cancellation or counterclaim, any evidence or arguments advanced by 9 Application Serial Nos. 86690120; 86690113; 86690111; and 86690104. Serial Nos. 88161010, 88160772, 88160995, 88161043, 88161047, 88161037 - 17 - Applicant that its marks have priority, or that the marks are not confusingly similar on the basis of its prior applications, have not been considered. Further, as is often stated, each case must stand on its own record and, in any event, the Board is not bound by the actions of prior examining attorneys. See In re Nett Designs, 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior registrations had some characteristics similar to [applicant’s] application, the PTO’s allowance of such prior registrations does not bind the board or this court.”); In re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1793 n.10 (TTAB 2017). II. Conclusion Overall, the marks are similar in appearance, sound, connotation and commercial impression and the goods are legally identical or otherwise closely related, and will travel through the same trade channels to the same classes of purchasers. Accordingly, there is a likelihood of confusion among relevant purchasers. Decision: The refusal to register Applicant’s marks ORIHERB (standard character mark), (ORIBHERB and design mark) and the term ORIHERB in stylized font with Chinese characters and design (the Chinese character marks) under Trademark Act Section 2(d) is affirmed as to the goods in International Class 5. The marks will proceed to registration in International Class 30 only.