National Nutritional Foods Ass’n.

Trademark Trial and Appeal Board

Sep 25, 2001

No. 75707709 (T.T.A.B. Sep. 25, 2001)

9/25/01

Hearing: Paper No. 14
August 9, 2001 TJQ

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re National Nutritional Foods Association
________

Serial No. 75/707,709
_______

Eugenia S. Hansen, William D. McSpadden and Rod A. Cooper
of Sidley & Austin for applicant.

Kimberly Krehely, Senior Trademark Examining Attorney, Law
Office 107 (Thomas Lamone, Managing Attorney).
_______

Before Hanak, Quinn and Walters, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

An application has been filed by National Nutritional
Foods Association to register the certification mark shown
below

THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. Error! Reference source not found.
2
for “dietary supplement manufacturing certification
services.”1 Applicant has disclaimed “Good Manufacturing
Practices” and “GMP” apart from the mark. Applicant
indicates that “[t]he certification mark, as used by
authorized persons, certifies that such persons meet the
certifier’s good manufacturing practice standards for
manufacturing, packing and holding dietary supplements,
including standards relating to systems and procedures for:
personnel training and supervision; construction, design
and sanitation of plant, ground and equipment; quality
control and laboratory testing operations; production,
packaging and labeling controls; warehousing; distribution;
and post-distribution procedures such as product
complaints, returns and recalls.”
The Senior Trademark Examining Attorney has refused
registration under Section 2(d) of the Act on the ground
that applicant’s mark, when used in connection with
applicant’s certification services, so resembles the
previously registered mark shown below

1 Application Serial No. 75/707,709, filed May 17, 1999, alleging
that it “intends to exercise legitimate control over the use of
the certification mark in commerce.”
Ser No. Error! Reference source not found.
3

for “food supplements”2 as to be likely to cause confusion.
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney filed briefs, and both
were present at an oral hearing before the Board.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence that are relevant
to the factors bearing on the likelihood of confusion
issue. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities or dissimilarities between the marks and the
similarities or dissimilarities between the goods and/or
services. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Insofar as the goods and services are concerned, they
are tangentially related in that both involve the
food/dietary supplement industry. There are specific
differences between them, however, because applicant
renders dietary supplement manufacturing certification
Ser No. Error! Reference source not found.
4
services while applicant sells food supplements. The
record is devoid of any evidence suggesting that these
types of goods and services would ever emamate from or be
sponsored by the same source, or that they are otherwise
related except to the limited extent of involving the same
industry. The connection here is very tenuous. Further,
given the nature of the goods and services that deal with a
person’s diet, applicant’s position that purchasers are
likely to be somewhat careful is reasonable.
With respect to the marks, the common elements between
the two are the letters “GMP” and the words “GOOD
MANUFACTURING PRACTICE(S).” The letters are disclaimed in
the involved application, and the words are disclaimed in
both the application and the cited registration. In this
regard, applicant submitted an excerpt from the Federal
Register regarding proposed rulemaking by the Food and Drug
Administration. The rules package is captioned “Current
Good Manufacturing Practice in Manufacturing, Packing, or
Holding Dietary Supplements.” The text is replete with
highly descriptive or generic uses of the letters “GMP” and
the words “Good Manufacturing Practices.” By way of
example, the text includes the following excerpt from a
document prepared by representatives of the dietary

2 Registration No. 2,005,683, issued October 8, 1996. The words
“Good Manufacturing Practice” are disclaimed apart from the mark.
Ser No. Error! Reference source not found.
5
supplement industry: “Good Manufacturing Practices (GMP’s)
for Dietary Supplements: Statement of Purpose. This
document describes Good Manufacturing Practices to be
followed in the manufacturing and control operations for
dietary supplements and dietary ingredients.”
Based on the evidence and disclaimers, it is clear
that, in the field of food/dietary supplements, the letters
and words common to applicant’s and registrant’s marks are
at least highly descriptive, if not generic. Given these
uses in the industry, the evidence suggests that consumers
would be accustomed to distinguishing between marks
containing such highly descriptive or generic matter upon
other elements of the marks.
Indeed, we must compare the marks in their entireties,
including the addition in applicant’s mark of the initials
of applicant’s trade name.3 The presence of a trade name
may or may not eliminate a likelihood of confusion between
the entire marks. See: 3 J.T. McCarthy, McCarthy on
Trademarks and Unfair Competition, §23:43 (4th ed. 2001).
In the present case, the presence of the letters “NNFA” in
applicant’s mark alleviates the likelihood of confusion
with registrant’s mark. See: In re S. D. Fabrics, Inc.,

3 The letters NNFA have been registered by applicant as a service
mark (Reg. Nos. 2,288,686 and 2,292,256).
Ser No. Error! Reference source not found.
6
223 USPQ 54 (TTAB 1984). In that case, the Board stated
the following (at pp. 55-56):
Although it has often been said that
the addition of a trade name, house
mark, or surname to one of two
otherwise confusingly similar marks
will not generally serve to avoid a
likelihood of confusion between them,
exceptions to this general rule are
made (1) when there are recognizable
differences between the assertedly
conflicting product marks, or (2) when
the alleged product marks are highly
suggestive or merely descriptive or
play upon commonly used or registered
terms. [citations omitted]

See also: In re Bed & Breakfast Registry, 791 F.2d 157,
229 USPQ 818 (Fed. Cir. 1986); Rockwood Chocolate Co. v.
Hoffman Candy Co., 372 F.2d 552, 152 USPQ 599 (CCPA 1967);
and In re Merchandising Motivation, Inc., 184 USPQ 364
(TTAB 1974).
The present case falls within the second category of
exceptions to the general rule. The disclaimers in the
application and registration, coupled with the uses in the
Federal Register, including the use by the industry itself,
show the highly descriptive or generic nature of the
letters “GMP” and “GOOD MANUFACTURING PRACTICE(S)” in the
food/dietary supplement industry. Accordingly, the
addition of the trade name letters “NNFA” to the highly
descriptive or generic matter in applicant’s mark is
sufficient to avoid likelihood of confusion. Lastly, the
Ser No. Error! Reference source not found.
7
differences between the design features of the marks,
although a very subordinate factor, nevertheless contribute
to our view that there is no likelihood of confusion.
Based on the record before us, we see the Examining
Attorney’s view of the likelihood of confusion as amounting
to only a speculative, theoretical possibility, especially
in view of the fact that the commonality between the marks
consists of highly descriptive or generic words. Language
by our primary reviewing court is helpful in resolving the
likelihood of confusion issue in this case:
We are not concerned with mere
theoretical possibilities of confusion,
deception or mistake or with de minimis
situations but with the practicalities
of the commercial world, with which the
trademark laws deal.

Electronic Design & Sales Inc. v. Electronic Data Systems
Corp., 954 F.2d 713, 21 USPQ2d 1388, 1391 (Fed. Cir. 1992),
citing Witco Chemical Co. v. Whitfield Chemical Co., Inc.,
418 F.2d 1403, 1405, 164 USPQ 43, 44-45 (CCPA 1969), aff'g
153 USPQ 412 (TTAB 1967).
Decision: The refusal to register is reversed.