Rainbow Light Nutritional Systems, Inc.

Trademark Trial and Appeal Board

Mar 5, 2015

No. 85871276 (T.T.A.B. Mar. 5, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 5, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Rainbow Light Nutritional Systems, Inc.
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Serial No. 85871276
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Anthony Robinson for Rainbow Light Nutritional Systems, Inc.

James Rauen, Trademark Examining Attorney, Law Office 109,
Dan Vavonese, Managing Attorney.
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Before Seeherman, Bergsman and Lykos,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Rainbow Light Nutritional Systems, Inc. (“Applicant”) seeks registration on the
Principal Register of the mark EMBRACE PRENATAL 35+ (in standard
characters) for
Vitamins and dietary supplements, namely supplements
designed for women to support conception, pregnancy and
nursing, in Class 5.1
Applicant disclaimed the exclusive right to use the term “Prenatal 35+.”

1 Application Serial No. 85871276 was filed on March 8, 2013, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
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The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the
ground that Applicant’s mark so resembles the registered mark EMBRACE (in
standard characters) for “dietary supplements, namely, weight loss supplements in
capsule form,” in Class 5, as to be likely to cause confusion.2
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. We affirm the refusal to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
Applicant attached evidence to its main brief. Trademark Rule 2.142(d), 37 CFR §
2.142(d) reads as follows:
The record in the application should be complete prior to
the filing of an appeal. The Trademark Trial and Appeal
Board will ordinarily not consider additional evidence
filed with the Board by the appellant or by the examiner
after the appeal is filed. After an appeal is filed, if the
appellant or the examiner desires to introduce additional
evidence, the appellant or the examiner may request the
Board to suspend the appeal and to remand the
application for further examination.
In his brief, the Trademark Examining Attorney objected to Applicant’s attempt
to introduce evidence with its brief. Despite the objection by the Trademark
Examining Attorney, who cited authority supporting the objection, Applicant also
submitted evidence with its reply brief.

2 Registration No. 4123827, issued April 10, 2012.
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The objection is sustained and the evidence submitted with Applicant’s brief and
reply brief will be given no consideration.
II. Applicable Law
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
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 Co., 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 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 in the essential
characteristics of the goods and differences in the marks.”). These factors, and any
other relevant du Pont factors in the proceeding now before us, will be considered in
this decision.
A. The similarity or dissimilarity and nature of the goods.

As noted above, Applicant is seeking to register its mark for “vitamins and
dietary supplements, namely supplements designed for women to support
conception, pregnancy and nursing” and the description of goods in the cited
registration is “dietary supplements, namely, weight loss supplements in capsule
form.”
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In its reply brief, Applicant quoted the Dietary Supplement Health and
Education Act of 1994 for the definition of “dietary supplement.”3
A dietary supplement is a product taken by mouth that
contains a "dietary ingredient" intended to supplement
the diet. The "dietary ingredients" in these products may
include: vitamins, minerals, herbs or other botanicals,
amino acids, and substances such as enzymes, organ
tissues, glandulars, and metabolites. Dietary supplements
can also be extracts or concentrates, and may be found in
many forms such as tablets, capsules, softgels, gelcaps,
liquids, or powders. They can also be in other forms, such
as a bar, but if they are, information on their label must
not represent the product as a conventional food or a sole
item of a meal or diet. Whatever their form may be,
DSHEA places dietary supplements in a special category
under the general umbrella of "foods," not drugs, and
requires that every supplement be labeled a dietary
supplement.
The issue with respect to the relatedness of the goods is whether dietary
supplements designed for pregnant women are related to dietary supplements
designed as a weight loss supplement.
To prove that dietary supplements designed for pregnant women and dietary
supplements designed as a weight loss supplement are related, the Trademark
Examining Attorney submitted excerpts from websites showing third parties using
the same trademark to identify a myriad of dietary supplements, including prenatal
supplements and weight loss supplements:4

3 Applicant’s Reply Brief, p. 7.
4 January 7, 2014 Office Action.
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1. Nature’s Way Store (natureswaystore.com) uses the NATURE’S
WAY●STORE trademark and logo to identify diet and weight loss supplements and
prenatal supplements.
2. The VitaFusion trademark is used to identify weight management fiber
supplements and prenatal vitamins.
3. The Super Nutrition trademark is used to identify prenatal vitamins, as
well as vitamins and supplements designed for, inter alia, “prostate function,”
“digestive aids,” and “all-day energy.”
4. The One-A-Day trademark is used to identify prenatal supplements, as well
as vitamins and supplements designed for, inter alia, “physical energy & mental
alertness,” “heart health,” and “bone and breast health.”
5. The New Chapter trademark is used to identify prenatal vitamins, as well
as vitamins and supplements designed for, inter alia, “prostate function,” “the
wisdom of whole food,” and “anti-inflammatory relief.”
6. The Doctor’s Choice trademark is used to identify prenatal vitamins, as
well as vitamins and supplements designed for, inter alia, “healthy aging, digestion,
blood sugar, bones and the immune system,” “daily energy, enhanced immunity and
balanced nutrition,” and “diabetes.”
7. The Nordic Naturals trademark is used to identify prenatal vitamins, as
well as vitamins and supplements designed for, inter alia, “memory and mood,”
“healthy brain and visual development,” and diet supplement for children.
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In addition, Applicant, on its own website, features its Rainbow Light mark for
prenatal vitamins and vitamins and supplements designed for, inter alia, “hormone-
balancing,” “brain health,” “digestive support,” “performance energy,” and “nail hair
& skin.”
The evidence shows that two third parties use the same mark to identify dietary
supplements designed for weight loss and for pregnant women and that five other
third parties, as well as Applicant, use the same trademarks to identify prenatal
vitamins and supplements and a wide variety of vitamins and supplements
designed for many other purposes. In determining whether the goods at issue are
similar or dissimilar, as has often been said, goods need not be identical or even
competitive in order to support a finding of likelihood of confusion. Rather, it is
enough that goods are related in some manner or that 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 thereon, 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. See In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991).
Because the evidence shows that companies sell dietary supplements for a wide
variety of purposes, we find that the goods are related and that consumers
encountering dietary supplements and vitamins designed for different purposes
identified by similar marks will believe that the goods emanate from the same
source. The issue here, of course, is not whether purchasers would confuse the
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goods, but rather whether there is a likelihood of confusion as to the source of these
goods. In re Rexel Inc., 223 USPQ 830, 831 (TTAB 1984).
B. Established, likely-to-continue channels of trade.
The websites submitted by the Trademark Examining Attorney also show that
the same retailers sell both supplements for pregnant women and weight loss
supplements. The retailers include Walgreens.com, Walmart, Target,
Drugstore.com and Supplement Warehouse. Accordingly, we find that dietary
supplements designed for pregnant women and weight loss supplements move in
the same channels of trade.
C. The number and nature of similar marks in use on similar goods.
In its December 20, 2013 Response to an Office Action, Applicant submitted
copies of two registrations for “Embrace” formative marks for nutritional
supplements and one registration for EMBRACE for a vitamin fortified orange
juice, as set forth in the table below, and owned by separate entities.5

5 Applicant submitted copies of registrations for “Embrace” marks for goods other than
vitamins or nutritional supplements. Those registrations have little probative value (e.g.,
Registration No. 3636498 for the mark EMBRACE for “medical diagnostic strips for use in
the field of measuring blood glucose, Registration No. 2855948 for the mark EMBRACE for
“personal lubricant; sexual lubricant,” Registration No. 3254315 for the mark EMBRACE
for “fungicides for agriculture.,”). See Key Chemicals, Inc. v. Kelite Chemicals Corp., 464
F.2d 1040, 175 USPQ 99, 101 (CCPA 1972) (“Nor is our conclusion altered by the presence
in the record of about 40 third-party registrations which embody the word “KEY”. The great
majority of those registered marks are for goods unrelated to those in issue, and there is no
evidence that they are in continued use. We, therefore, can give them but little weight in
the circumstances present here”); 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).
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Mark Reg. No. Goods

EMBRACE 3058403 Vitamin fortified orange juice

ENERGY TO
EMBRACE LIFE
3414575 Nutritional supplements, namely, nutritional
drink mixes for use as a meal replacement,
nutritional snack bars for use as a meal
replacement
EMBRACE THE
GRAPE
4122609 Nutritional supplements

The third-party registrations submitted by Applicant do not prove that
“Embrace” is a weak term entitled to only a narrow scope of protection or exclusivity
of use. Absent evidence of actual use, third-party registrations have little probative
value because they are not evidence that the marks are in use on a commercial scale
or that the public has become familiar with them. See Smith Bros. Mfg. Co. v. Stone
Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing public is
not aware of registrations reposing in the U.S. Patent and Trademark Office);
Productos Lacteos Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98
USPQ2d 1921, 1934 (TTAB 2011). See also In re Hub Distributing, Inc., 218 USPQ
284, 285 (TTAB 1983) (“third party registrations in this Office, absent evidence of
actual use of the marks subject of the third-party registrations, they are entitled to
little weight on the question of likelihood of confusion.”).
[I]t would be sheer speculation to draw any inferences
about which, if any of the marks subject of the third party
[sic] registrations are still in use. Because of this doubt,
third party [sic] registration evidence proves nothing
about the impact of the third-party marks on purchasers
in terms of dilution of the mark in question or
conditioning of the purchasers as to their weakness in
distinguishing source.
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Id.at 286. See also Olde Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d
1542, 1545 (Fed. Cir. 1992) (“As to strength of a mark, however, registration
evidence may not be given any weight”). We certainly cannot conclude, on the basis
of these three registrations, that EMBRACE has a significance for dietary
supplements that would cause consumers to look to other elements of the marks;
further, the cited mark is for EMBRACE per se, so that there is no other element by
which consumers could distinguish this mark from other EMBRACE marks.
In view of the foregoing, we find that the factor of the number and nature of
similar marks in use on similar goods is neutral.
D. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.

We turn next to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177
USPQ at 567. In a particular case, “two marks may be found to be confusingly
similar if there are sufficient similarities in terms of sound or visual appearance or
connotation.” Kabushiki Kaisha Hattori Seiko v. Satellite Int’l, Ltd., 29 USPQ2d
1317, 1318 (TTAB 1991, aff’d without opinion, 979 F.2d 216 (Fed. Cir. 1992)
(emphasis in the original; citation omitted). See also Eveready Battery Co. v. Green
Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009), citing Krim-Ko Corp. v. The Coca-
Cola 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.”).

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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.” Coach
Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721
(Fed. Cir. 2012) (citation omitted). See also 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 mem.,
972 F.2d 1353 (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. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago
Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed
Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
The mark in the cited registration is EMBRACE. Applicant’s mark is EMBRACE
PRENATAL 35+. The word “EMBRACE” is the dominant element of Applicant’s
mark because the term “Prenatal 35+” is descriptive when used in connection with
dietary supplements designed for women over 35 to support conception, pregnancy
and nursing.6 It is well-settled that disclaimed, descriptive matter may have less

6 In his June 26, 2013 Office Action the Trademark Examining Attorney required that
Applicant disclaim the term “Prenatal 35+” for the following reasons:
The term “prenatal” means “existing or occurring before birth.”
See the attached evidence from the American Heritage
Dictionary or [sic] the English Language. The term “35+”
means age 35 and over. Thus, the wording indicates two
characteristic of the applicant’s goods, namely, the time they
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significance in likelihood of confusion determinations. See 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 National Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir.
1983)); In re Dixie Rests. Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed.
Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001)
(disclaimed matter is often “less significant in creating the mark’s commercial
impression”).
While noting that the word EMBRACE is the dominant element of Applicant’s
mark, we are cognizant that the similarity or dissimilarity of the marks is
determined based on the marks in their entireties and that the analysis cannot be
predicated on dissecting the marks into their various components; that is, the
decision must be based on the entire marks, not just part of the marks. See Stone
Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157,
1161 (Fed. Cir. 2014); In re National Data Corp., 224 USPQ at 751. However, there
is nothing improper in stating that, for rational reasons, more or less weight has
been given to a particular feature of a mark, provided the ultimate conclusion rests
on a consideration of the marks in their entireties. In re National Data Corp., 224
USPQ at 751.

are designed to be taken, i.e. before birth, and the age of the
intended users of the applicant’s goods, i.e. those 35 and older.
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The position of the word EMBRACE as the first part of the mark EMBRACE 35+
further reinforces the importance of EMBRACE as the dominant element of the
mark. See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 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 will first notice the identical lead word); Presto
Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is
often the first part of a mark which is most likely to be impressed upon the mind of
a purchaser and remembered”).
Registrant’s mark EMBRACE and the dominant element EMBRACE of
Applicant’s mark EMBRACE PRENATAL 35+ are identical. Because of the
identical word EMBRACE in both marks, consumers may mistakenly believe that
Applicant’s EMBRACE PRENATAL 35+ dietary supplements are part of the
EMBRACE line of dietary supplements, with these particular supplements
designed for women to support conception, pregnancy and nursing.7
In similar circumstances, where the applicant’s mark incorporates a registrant’s
entire mark, the Board and its primary reviewing court have found that the marks
are similar. See The Wella Corp, v. California Concept Corp., 558 F.2d 1019, 194

7 Thus, we disagree with Applicant’s argument that the Trademark Examining Attorney
did not consider the commercial impression created by Applicant’s inclusion of the
descriptive term “Prenatal 35+.” Applicant’s Brief, pp. 7 and 9.
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USPQ 419, 422 (CCPA 1977) (CALIFORNIA CONCEPT and surfer design for men’s
cologne, hair spray, conditioner and shampoo is likely to cause confusion with the
mark CONCEPT for cold permanent wave lotion and neutralizer); Coca-Cola
Bottling Co. of Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526
F.2d 556, 188 USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for
club soda, quinine water and ginger ale is likely to cause confusion with BENGAL
for gin); In re West Point-Pepperell, Inc., 468 F.2d 200, 175 USPQ 558 (CCPA 1972)
(WEST POINT PEPPERELL and griffin design for fabrics is likely to cause
confusion with WEST POINT for woolen piece goods); Johnson Publishing Co. v.
International Development Ltd., 221 USPQ 155, 156 (TTAB 1982) (applicant’s mark
EBONY DRUM for hairdressing and conditioner is likely to cause confusion with
EBONY for cosmetics); In re Cosvetic Laboratories, Inc., 202 USPQ 842 (TTAB
1979) (applicant’s mark HEAD START COSVETIC for vitamins for hair
conditioners and shampoo is likely to cause confusion with HEAD START for men’s
hair lotion and after-shaving lotion).
Applicant argues that the commercial impressions engendered by EMBRACE
and EMBRACE PRENATAL 35+ are different. According to Applicant, EMBRACE
PRENATAL 35+ creates an “image of welcoming a pregnancy over the age of 35”
which is contrasted to EMBRACE which “leaves consumers with the impression of
accepting the challenge to lose weight” or “seeking to ‘lose’ something, weight.”8 We
disagree. Because the word “Embrace” is defined, inter alia, as “to take or receive

8 Applicant’s Brief, p. 10.
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gladly or eagerly; accept willingly,” or “to avail oneself of,”9 we find that the
commercial impression engendered by both marks is to welcome the benefits
associated with the products. There is nothing in Applicant’s trade dress that
indicates the word “Embrace” in Applicant’s mark EMBRACE PRENATAL 35+ has
any other meaning. See the copy of Applicant’s packaging below:10

9 Dictionary.com derived from THE RANDOM HOUSE DICTIONARY (2015). 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);
Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010).
10 Applicant’s December 20, 2013 Response to Office Action. We may look to the trade dress
to determine the commercial impression engendered by Applicant’s mark.
[T]he trade dress may nevertheless provide evidence of
whether the word mark projects a confusingly similar
commercial impression. Applicant's labels support rather than
negate that of which opposer complains: that SPICE VALLEY
inherently creates a commercial impression which is
confusingly similar to that of SPICE ISLANDS.
Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 223 USPQ 1281, 1284
(Fed. Cir. 1984). See also American Rice, Inc. v. H.I.T. Corp., 231 USPQ 793, 796 (TTAB
1986) (“we may take into account whether the trade dress of packages or labels in the
application file as specimens, or otherwise in evidence, may demonstrate that the
trademark projects a confusingly similar commercial impression.”); Northwestern Golf Co.
v. Acushnet Co., 226 USPQ 240, 244 (TTAB 1985) (“Evidence of the context in which a
particular mark is used on labels, packaging, etc., or in advertising is probative of the
significance which the mark is likely to project to purchasers.”).
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Applicant’s argument that the “[l]ayout, design, color, packaging, and logotype
are important features to consider in determining if the marks are confusingly
similar” is unavailing because Applicant is seeking to register only the words
EMBRACE 35+ in standard characters, and not the trade dress it currently uses. If
a registration were to issue for the applied-for mark, Applicant would be free to use
it with any trade dress. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1847-48 (Fed. Cir. 2000) (because applicant filed to register a typed
drawing of its mark, “it is irrelevant that [applicant] has a particular display for his
mark in commerce, and the Board was correct to ignore those features.”); In re Rexel
Inc., 223 USPQ at 832 (“The fact that applicant's stapler kits bear its house mark
‘REXEL’ as well as the product mark ‘LITTLE GOLIATH’ is not persuasive of a
different result since applicant is seeking to register the mark ‘LITTLE GOLIATH’
alone.”).
In view of the foregoing, we find that Applicant’s mark EMBRACE PRENATAL
35+ is similar to the mark in the cited registration EMBRACE in terms of
appearance, sound, connotation and commercial impression.
E. The conditions under which and buyers to whom sales are made, i.e.,
“impulse” vs. careful, sophisticated purchasing.

Applicant argues that consumers for dietary supplements will exercise a high
degree of care in making their purchasing decision because dietary supplements
could “affect consumers’ health.”11 While we have no doubt that consumers will
exercise a heightened degree of care purchasing dietary supplements, those same

11 Applicant’s Brief, p. 14.
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consumers may mistake one trademark for another when such marks are as similar
as they are here because they are not likely to note the differences in the marks.
Hydrotechnic Corp. v. Hydrotech International, Inc., 196 USPQ 387, 392-93 (TTAB
1977); Educational Development Corp. v. Educational Dimensions Corp., 183 USPQ
492, 496 (TTAB 1974). Even careful purchasers who do notice the difference in the
marks will not necessarily conclude that they indicate different sources for the
goods, but will see the marks as variations of each other, pointing to a single source.
See, e.g., Kangol Ltd. v. Kangaroos U.S.A., Inc., 974 F.2d 161, 23 USPQ2d 1945,
1946 (Fed. Cir. 1992) (“What is important is not whether people will necessarily
confuse the marks, but whether the marks will be likely to confuse people into
believing that the goods they are purchasing emanate from the same source.”)
(citations omitted). Accordingly, on the whole we consider this du Pont factor to be
neutral.
F. Balancing the factors.
Because the marks are similar, the goods are related, and the goods move in the
same channels of trade, we find that Applicant’s mark EMBRACE PRENATAL 35+
for “vitamins and dietary supplements, namely supplements designed for women to
support conception, pregnancy and nursing” is likely to cause confusion with the
registered mark EMBRACE for “dietary supplements, namely, weight loss
supplements in capsule form.”
Decision: The refusal to register Applicant’s mark EMBRACE PRENATAL 35+
is affirmed.