Maypro Industries

Trademark Trial and Appeal Board

Jun 26, 2009

No. 77181070 (T.T.A.B. Jun. 26, 2009)

Mailed:
June 26, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Maypro Industries
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Serial No. 77181070
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William C. Wright of Epstein Drangel Baserman & James, LLP, for
Maypro Industries.

D. Beryl Gardner, Trademark Examining Attorney, Law Office 112
(Angela Wilson, Managing Attorney).
_______

Before Holtzman, Cataldo, and Ritchie, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Maypro Industries (“applicant”) filed an application to
register the mark PROBIOPURE, in standard character form, for
goods ultimately identified as “dietary and nutritional
supplements containing probiotics and excluding bioactive pure
whey protein concentrate,” in International Class 5.1 The
Trademark Examining Attorney refused registration of applicant’s
mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C.

1 Serial No. 77181070, filed May 15, 2007, amended from an intent to
use application to Section 1(a) of the Trademark Act, 15 U.S.C.
§1051(a), alleging first use on November 18, 2008, and first use in
commerce on December 11, 2008.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77181070
2
§1052(d), on the ground that applicant’s mark so resembles the
mark BIOPURE PROTEIN, registered in typed drawing form on the
Supplemental Register, for “dietary supplement containing
bioactive pure whey protein concentrate,” in International Class
5,2 that when used on or in connection with applicant’s
identified goods, it is likely to cause confusion or mistake or
to deceive. Upon final refusal of registration, applicant filed
a timely appeal. Both applicant and the examining attorney
filed briefs. For the reasons discussed herein, the Board
affirms the refusal to register.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
likelihood of confusion. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between
the marks and the similarities between the goods or services.
See 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

2 Supplemental Registration No. 2483934, issued August 28, 2001, filed
under Section 1(a) of the Trademark Act, and claiming first use and
first use in commerce on April 16, 1999. Section 8 affidavit
accepted.
Serial No. 77181070
3
in the essential characteristics of the goods and differences in
the marks”). We discuss each of the du Pont factors as to which
applicant or the examining attorney submitted argument or
evidence.
The Marks
We consider and compare the appearance, sound, connotation
and commercial impression of the marks in their entireties. In
re E. I. du Pont De Nemours & Co., 177 USPQ at 567. The first
word in the registered mark is BIOPURE. The second (and only
other) word, PROTEIN, is disclaimed as descriptive of the
identified goods (which contain “protein concentrate”).
Disclaimed or descriptive matter is generally viewed as a less
dominant or significant feature of a mark. In re National Data
Corp., 224 USPQ 749, 750 (Fed. Cir. 1985) (“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’”). In this case, we
find that the descriptive term PROTEIN does not significantly
change the connotation or commercial impression of the
registered mark.
The dominance of the word BIOPURE in the registered mark
is further demonstrated by its location as the first word of the
mark. Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d
1895, 1897 (TTAB 1988) (“it is often the first part of a mark
Serial No. 77181070
4
which is most likely to be impressed upon the mind of a
purchaser and remembered”). See also Palm Bay Imports Inc. v.
Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005)(“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 Real Estate
Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698,
1700 (Fed. Cir. 1992) (upon encountering the marks, consumers
must first notice the identical lead word). Accordingly, the
marks are similar in appearance and sound.
Applicant argues that its mark consists of the prefix
“PROBIO,” as an abbreviation of “probiotics,” followed by
“PURE.” However, there is no evidence of record that “probio”
is an accepted or common abbreviation of “probiotics.” In this
regard, applicant argues that the “PROBIO” portion of its mark
is highlighted, showing it to be a single term. However, this
argument is not well taken, since applicant is seeking to
register its mark in standard character form. See Squirtco v.
Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983)
(“[An] argument concerning a difference in type style is not
viable where one party asserts rights in no particular display.
By presenting its mark merely in a typed drawing, a difference
cannot legally be asserted by that party.”). Therefore,
applicant’s mark can be displayed in the same stylization as the
Serial No. 77181070
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mark in the cited registration, with any, every, or no portion
of its mark highlighted.
Moreover, the examining attorney has submitted a dictionary
definition of “pro,” listed in relevant part, as “favoring:
supporting: championing.” (Merriam-Webster Online Dictionary
2008). In that regard, applicant’s mark may easily be perceived
by consumers as having the connotation of being “PRO,” or in
favor of, “BIOPURE,” which is both the first term, and the
dominant portion, of the registered mark.
In comparing the marks, we are mindful that the test is not
whether the marks can be distinguished when subjected to a side-
by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial
impression so that confusion as to the source of the goods
and/or services offered under the respective marks is likely to
result. San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff'd unpublished, No. 92-1086 (Fed. Cir. June 5,
1992). The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression
of the marks. Winnebago Industries, Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott
Serial No. 77181070
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Paper Co., 190 USPQ 106, 108 (TTAB 1975). Accordingly, the
marks are similar in connotation and commercial impression.
Applicant argues that the mark in the cited registration is
weak. In support of this argument, applicant submitted evidence
of various third-party registrations that contain the term
“PURE” for dietary supplements, as identified in both the
application and the cited registration. However, several of the
third-party registrations are not use-based, and these
registrations have little persuasive value. Furthermore, none
of the third-party registrations contain the term “BIOPURE,”
which is the full term or sequence of letters shared by the
application and the cited registration. Applicant also argues
that the mark in the cited registration is weak because it is
registered on the Supplemental Register. While it is true that
the Supplemental Register does not afford registrants the full
benefits accorded to registrants on the Principal Register,
marks on the Supplemental Register are protected under Section
2(d) of the Trademark Act against registration of confusingly
similar marks. See In re Amtel Inc., 189 USPQ 58 (TTAB 1976).
Moreover, even weak marks are entitled to protection where
confusion is likely. In re Clorox Co., 578 F.2d 305, 198 USPQ
337 (CCPA 1978). In particular, there is no “requirement that
citation of marks on the Supplemental Register under §2(d) be
limited to marks identical to that sought to be registered.”
Serial No. 77181070
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Id. at 341. As the CCPA observed in Clorox Co., there is no
reason to apply different standards to registrations cited under
§2(d). “The level of descriptiveness of a cited mark may
influence the conclusion that confusion is likely or unlikely,
but that fact does not preclude citation under §2(d) of marks on
the Supplemental Register.” Id. (internal cites omitted).
In sum, we find that applicant’s mark is sufficiently
similar to the mark in the cited registration in appearance,
sound, connotation, and commercial impression for this du Pont
factor to weigh in favor of finding a likelihood of consumer
confusion.
The Goods, Channels of Trade and Sophistication of Consumers

In determining the similarity or dissimilarity of the
goods, we note that goods or services need not be identical or
even competitive in order to support a finding of likelihood of
confusion. Rather, it is enough that the goods or services are
related in some manner or that some circumstances surrounding
their marketing are such that they would be likely to be seen by
the same persons under circumstances which could give rise,
because of the marks used or intended to be used therewith, to a
mistaken belief that they originate from or are in some way
associated with the same producer or that there is an
association between the producers of each parties’ goods or
services. In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
Serial No. 77181070
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The application identifies “dietary and nutritional
supplements containing probiotics and excluding bioactive pure
whey protein concentrate,” whereas the cited registration
identifies “dietary supplement containing bioactive pure whey
protein concentrate.” Accordingly, both the application and the
cited registration identify types of dietary supplements.
Although the application contains a negative limitation for the
specific type of dietary supplements identified in the cited
registration, applicant admits that “the goods at issue both can
be broadly classified as being dietary supplements.”
(Applicant’s brief at unnumbered 11 of 12). The examining
attorney has submitted numerous use-based, third-party
registrations that identify “dietary supplements” generally,
without limitation. Indeed, so has applicant. For example,
third-party registrations submitted by applicant that cover
“dietary supplements” generally include Registrations Nos.
2208914, 2562105, 2878718, 2843729, 3123953, 2478424, 2530190,
2136264, 0833005, 3186811, 3286869, and 3351810.
Copies of use-based, third-party registrations may serve to
suggest that the goods are of a type which may emanate from a
single source. See In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785 (TTAB 1993). Accordingly, although the types of
dietary supplements identified by the application and the cited
registration may be intended for different purposes, as
Serial No. 77181070
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applicant argues, it is apparent that consumers may assume that
– both being dietary supplements – they emanate from the same
source. Applicant has produced no evidence to the contrary.
In the absence of specific limitations in the registration,
we must presume that registrant’s goods will travel in all
normal and usual channels of trade and methods of distribution.
Squirtco v. Tomy Corporation, supra, 216 USPQ at 939; see also
In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992) (because
there are no limitations as to channels of trade or classes of
purchasers in either the application or the cited registration,
it is presumed that the services in the registration and the
application move in all channels of trade normal for those
services, and that the services are available to all classes of
purchasers for the listed services). Since there are no
limitations on the channels of trade in applicant’s
identification of goods either, we must make the same
presumption with regard to applicant’s goods. In other words,
there is nothing that prevents the registrant’s dietary
supplements from being sold in some of the same channels of
trade and to the same classes of consumers as applicant’s, and
vice versa.
As to applicant’s argument that its consumers are
sophisticated and so will not be likely to be confused,
applicant has submitted no evidence in that regard. Moreover,
Serial No. 77181070
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even a sophisticated consumer is not immune from source
confusion. Cunningham v. Laser Golf Corp., 222 F.3d 943, 948-
949, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“The alleged
sophistication of golfers is outweighed by the Board’s findings
of strong similarity of marks and identity of goods, both of
which we uphold.”)
Accordingly, we find that these du Pont factors weigh in
favor of finding a likelihood of consumer confusion.
Balancing the Factors
In view of our findings that the marks are similar, the
goods are similar, and the goods move in some of the same
channels of trade to the same classes of purchasers, we find
that applicant’s mark PROBIOPURE for “dietary and nutritional
supplements containing probiotics and excluding bioactive pure
whey protein concentrate,” is likely to cause confusion with the
registered mark BIOPURE PROTEIN for “dietary supplement
containing bioactive pure whey protein concentrate.”
Decision: The refusal to register is affirmed.