TdeltaS Limited

Trademark Trial and Appeal Board

Aug 25, 2020

79244399 (T.T.A.B. Aug. 25, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: August 25, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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TdeltaS Limited
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Serial No. 79244399
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Rebecca L. Wilson of The Dobrusin Law Firm PC
for TdeltaS Limited

Cameron McBride, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
_____

Before Zervas, Shaw and Goodman,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
TdeltaS Limited (“Applicant”) seeks registration on the Principal Register of the
mark shown below

for goods identified as:
Caloric substitutes for carbohydrates in the nature of
nutritional supplements used to maintain, promote and
enhance health, wellness and fitness and to treat medical
conditions, namely, alzheimer’s disease, parkinson’s
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disease, depression, muscular conditions, treating,
preventing or aiding recovery from fatigue, improving
muscle function efficiency and muscular power,
maintaining and improving cognitive function, raising
blood ketone levels in the human or animal body, diabetes
or disorder of glucose metabolism, cachexia, neuro-
degenerative conditions, muscular dystrophic states,
increasing metabolic efficiency, reducing fatigue, reducing
muscle damage or wasting, inflammatory diseases and
radiation damage, as well as epilepsy, anxiety, dementia,
cancer, and cell damage; substances in the nature of
nutritional and dietary supplements for the treatment of
muscle fatigue, muscle conditions, epilepsy, anxiety,
dementia, cancer, cachexia and cell damage and
substances for improving cognitive function and raising
ketone blood levels in humans or animals; all the
aforementioned containing ketone esters or
hydroxybutyrates as an integrated component ingredient,
in International Class 5.1
The description of the mark states:
The mark consists of a thick-bordered Greek blue delta
symbol with the term “delta” in stylized lowercase font
appearing within the bottom edge. To the right of the
symbol appears a large stylized blue letter “G.” The color
white appearing in the mark represents background or
transparent areas only and is not claimed as a feature of
the mark.
The color blue is claimed as a feature of the mark. The transliteration of the mark
states: “The transliteration of the non-Latin characters in the mark is: delta.”
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the following two separately-owned registered marks:

1 Application Serial No. 79244399 based on International Reg. No. 1431740, which issued
May 2, 2018. The USPTO was notified of the request for extension on November 1, 2018.
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 DELTAGOLD in typed form for “nutritional supplements,” in International
Class 5;2 and
 DELTA GENESIS in standard characters for “Dietary supplements,” in
International Class 5.3
When the refusal was made final, Applicant appealed and requested
reconsideration. The Examining Attorney denied the request for reconsideration, and
the appeal resumed. The case is fully briefed.4 We affirm the refusal to register.
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence 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). See also In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We must

2 Registration No. 2818341, issued February 24, 2004, renewed. A mark in typed form is the
legal equivalent of a standard character mark. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d
1905, 1909 n.2 (Fed. Cir. 2012) (explaining that in 2003 there was a non-substantive change
in nomenclature from a “typed mark” to a “standard character mark”). The Examining
Attorney states that the mark is “in stylized form” (Examining Attorney’s Br., 9 TTABVUE
3), however, as Applicant notes in its brief (Applicant’s Br., p. 4, 7 TTABVUE 5), the mark is
in typed form.
3 Registration No. 5181464, issued April 11, 2017.
4 In its brief, Applicant referenced ownership of four registrations for allegedly similar marks
for use on similar goods. Applicant’s Br., p. 16, 7 TTABVUE 17. Applicant previously claimed
ownership of these registrations but did not make them of record (Request for
Reconsideration dated December 26, 2019, TSDR 1). We have not considered the registrations
because they have not been made of record. In re Olin Corp., 124 USPQ2d 1327, 1335 n.22
(TTAB 2017) (Board declined to take judicial notice of registrations owned by applicant). In
any event, each case must be decided on its own merits. E.g., In re Binion, 93 USPQ2d 1531,
1536 (TTAB 2009). Previous decisions by examining attorneys in approving other marks are
without evidentiary value and are not binding on the agency or the Board. In re Davey Prods.
Pty, 92 USPQ2d 1198, 1206 (TTAB 2009).
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consider each DuPont factor for which there is evidence and argument. See, e.g., In re
Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any
likelihood of confusion analysis, two key considerations are the similarities between
the goods and the similarities between the marks. 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.”).
A. The nature and similarity or dissimilarity of the goods, the established, likely-
to-continue trade channels, and the classes of purchasers.
We begin with the similarity of the respective goods. Applicant’s goods include
“substances in the nature of nutritional and dietary supplements.” Registrants’ goods
are “nutritional supplements” and “dietary supplements.” Applicant’s and
Registrants’ goods are identical in part because Applicant’s “substances in the nature
of nutritional and dietary supplements” encompass both of Registrants’ respective
goods.
Applicant, relying on extrinsic evidence, argues that the goods are nevertheless
unrelated. In Applicant’s words, the respective goods are “different types of
supplements which serve specific and different purposes.”5 “This argument is
unavailing. In making our determination regarding the relatedness of the goods, we
must look to the goods as identified in the application and cited registrations. See
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d

5 Applicant’s Br., p. 15, 7 TTABVUE 16.
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1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Computs. Servs. Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that
the question of registrability of an applicant’s mark must be decided on the basis of
the identification of goods set forth in the application regardless of what the record
may reveal as to the particular nature of an applicant’s goods, the particular channels
of trade or the class of purchasers to which the sales of goods are directed.”)).
We need not find similarity as to each and every good listed in an applicant’s
identification. It is sufficient for a refusal based on likelihood of confusion that
relatedness is established for any item encompassed by the identification of goods in
a particular class in the application. 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); 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 there is likely to be confusion with respect to any item that comes
within the identification of goods in the application).
Because the goods are identical in part and without restriction, we must presume
that they are sold in all normal trade channels and to all normal classes of purchasers
for such goods. See Stone Lion Capital, 110 USPQ2d at 1161. Thus, we consider
Applicant’s and Registrant’s trade channels and classes of purchasers to be the same.
In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where
there are legally identical goods, the channels of trade and classes of purchasers are
considered to be the same).
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The DuPont factors regarding the similarity of the goods, channels of trade, and
classes of purchasers strongly favor a finding of a likelihood of confusion.
B. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.
Next, we consider the DuPont factor relating to the similarity of the marks. In
comparing the marks we must consider them in their entireties as to appearance,
sound, connotation and commercial impression. See Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1372, 73 USPQ2d 1689,
1692 (Fed. Cir. 2005). Similarity as to any one of these factors may be sufficient to
support a finding that the marks are confusingly similar. See Krim-Ko Corp. v. 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.”); In re
Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (“Similarity in any one
of these elements may be sufficient to find the marks confusingly similar.”) (quoting
In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). The emphasis of our analysis
must be on the recollection of the average purchaser, who normally retains a general,
rather than specific, impression of trademarks. We remain mindful that “marks must
be considered in light of the fallibility of memory and not on the basis of side-by-side
comparison.” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir.
2014).
Moreover, the identity of the goods reduces the degree of similarity between the
marks that is necessary for confusion to be likely. See, e.g., Viterra, 101 USPQ2d at
1912; In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) ;
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Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698,
1700 (Fed. Cir. 1992).
Applicant’s proposed mark comprises the wording “delta G” with the Greek letter
Delta in blue and containing the word “delta”: . The registered marks are
DELTAGOLD and DELTA GENESIS.
In Applicant’s mark, the Greek letter Delta, including the wording “delta,” appear
first. DELTA is the first word in both of the cited marks as well. Thus, all three marks
begin with the word “delta,” and followed by a “G-formative” term, i.e., the letter “G,”
or the words GOLD or GENESIS. The word “delta” is defined as:6
1 : the 4th letter of the Greek alphabet
2 : something shaped like a capital Greek delta especially, geology : the
alluvial deposit at the mouth of a river the Mississippi Delta
3 mathematics : an increment of a variable—symbol Δ
The precise meaning of “delta” intended by the marks is unclear and has no has
no particular significance, nevertheless, none of the additional letters or words in any
of the three marks appear to change the meaning of the common word “delta” or lead
to a different meaning.
The Examining Attorney argues that “The first part of the wording in each mark
is ‘DELTA’ and the letter ‘G’; although the letter ‘G’ starts another word in the

6 Https://www.merriam-webster.com/dictionary/delta. The Board may take judicial notice of
definitions from dictionaries, 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. 2016).
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registrations, this still renders the marks identical in part, and most importantly,
identical with regard to the most dominant portions.”7 Further, according to the
Examining Attorney, consumers who are familiar with Applicant’s mark and
encounter Registrant’s marks could consider the “delta G” in Applicant’s mark to be
a shortened version of the words DELTAGOLD or DELTA GENESIS, thereby
increasing the similarity in connotation and commercial impression. Mighty Leaf Tea,
94 USPQ2d at 1260 (“ML” is likely to be perceived as a shortened version of “ML
MARK LEES” when used on the same or closely related products.). Applicant argues
that the common use of “delta” is not enough to create a likelihood of confusion:
[T]he Examining Attorney’s reliance upon a “dominant
feature” or “dominant portion” analysis (e.g., “the literal
portions”), particularly as applied to the “DELTA” portion
of the mark found in both the pending application and the
cited registrations, does not address the fact that both the
Trademark Trial & Appeal Board and the Federal Circuit’s
predecessor, the CCPA, have previously held that this
mere commonality alone does not create a likelihood of
confusion.8
Applicant adds that “[t]here is no abbreviated version of either cited mark which
would ever be feasible to infer that DeltaG is the equivalent.”9
There is nothing improper in stating that, for rational reasons, more or less weight
has been 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. Viterra, 101 USPQ2d at 1908; In re Nat’l Data Corp., 753 F.2d 1056, 224

7 Examining Attorney’s Br., 9 TTABVUE 8.
8 Applicant’s Br., p. 9, 7 TTABVUE 10.
9 Id. at 10, 7 TTABVUE 11.
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USPQ 749, 751 (Fed. Cir. 1985). Moreover, the marks share more than the common
word “delta.” All of the marks also consist of terms that consist of, or begin with, the
letter “G.” Although these other “G-formative” terms are not the dominant elements
of the marks, they are significant elements of all three marks and contribute to the
appearance, sound, connotation and commercial impression of the marks.
We thus find the marks to be similar in connotation and commercial impression
because the dominant portion of all three marks is the identical wording “delta”
followed by a “G-formative” term. Consumers are generally more inclined to focus on
the first word, prefix, or syllable in a trademark. See Palm Bay, 73 USPQ2d at 1692
(finding similarity between VEUVE ROYALE and two VEUVE CLICQUOT marks in
part because “VEUVE . . . remains a ‘prominent feature’ as the first word in the mark
and the first word to appear on the label”); Century 21 Real Estate, 23 USPQ2d at
1700 (finding similarity between CENTURY 21 and CENTURY LIFE OF AMERICA
in part because “consumers must first notice [the] identical lead word”). As a result
of this initial similarity, consumers familiar with either of Registrants’ goods might
assume that Applicant’s DELTA G goods were simply a different formulation of
nutritional or dietary supplements.
In addition, given the propensity of consumers to shorten marks when spoken, we
agree that the differences in the second part of the marks—the letter “G” and the
words GOLD or GENESIS—are less significant in distinguishing the respective
marks and, instead, may add to the similarity of the marks. In re Aquitaine Wine
USA, LLC, 126 USPQ2d 1181, 1188 (TTAB 2018) (recognizing consumers’
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“propensity to shorten marks when ordering them orally”); see also In re Abcor Dev.
Corp., 588 F.2d 511, 200 USPQ 215, 219 (CCPA 1978) (J. Rich, concurring) (“[U]sers
of language have a universal habit of shortening full names--from haste or laziness
or just economy of words. Examples are: automobile to auto; telephone to phone;
necktie to tie; gasoline service station to gas station.”). Accordingly, we agree that
some consumers may understand “delta g” to be a shortened form of DELTAGOLD
or DELTA GENESIS.
The fact that Applicant’s mark contains a design element—the Greek letter
delta—does not distinguish the marks. Rather, considering Applicant’s mark in its
entirety, the design element simply reinforces the meaning of the word “delta.” In any
event, the word portion of a mark is normally accorded greater weight than design
elements because it is likely to make a greater impression upon purchasers, be
remembered by them, and be used by them to refer to or request the goods. Aquitaine
Wine, 126 USPQ2d at 1184.
In terms of sound, although we acknowledge that there is not necessarily one
correct pronunciation for a mark, Viterra, 101 USPQ2d at 1912, we find Applicant’s
mark is likely to be pronounced simply as “delta g.” There is no reason to think that
the word “delta” or the letter “G” will be pronounced any differently compared with
their normal pronunciation. The presence of the Greek letter Delta does not alter this
likely pronunciation. On the contrary, it reinforces the likely pronunciation as “delta
g.” Regarding the sound or pronunciation of the registered marks, as with Applicant’s
mark, there is no reason to think that the marks will be pronounced any differently
Serial No. 79244399
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compared with the normal pronunciation of the constituent wording. Accordingly, all
three marks are somewhat similar in pronunciation because they all begin with the
word “delta” followed by a term beginning with the letter “G” in whole or in part.
With regard to appearance, DELTAGOLD is registered in typed form and DELTA
GENESIS is registered in standard characters, and either may be used in any
typeface or color including the same typeface and shade of blue used in Applicant’s
mark or in a manner to accent the prominence of the DELTA component of these
marks. It is well settled that typed or standard character marks, such as Registrants’,
could be used in any typeface and color. Citigroup Inc. v. Capital City Bank Grp. Inc.,
637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) (registrant is “entitled to
depictions of the standard character mark regardless of font style, size, or color[.]”).
Applicant further argues that the co-existence of the two cited marks suggests
that Applicant’s mark is entitled to registration as well:
Both the cited marks themselves certainly appear to co-
exist by separate Registrants in the marketplace despite
the fact that DELTA GENESIS and DELTAGOLD would
appear to be more similar to each other than the present
mark, DELTAG design mark. The goods set forth in the
’464 registration consist of “dietary supplements” while the
named registrant of the ’341 registration provides
registered goods of “Nutritional Supplements”, but yet are
both allowed to co-exist.10
This argument is unpersuasive as well. First, we find that the cited marks are not
more similar to each other than to Applicant’s mark. Second, it is well settled that
the fact that two marks with possibly similar characteristics can co -exist does not

10 Id.
Serial No. 79244399
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justify the registration of another mark that is similar to the previously registered
marks. Prior decisions and actions of other trademark examining attorneys in
registering other marks have little evidentiary value and are not binding upon the
USPTO or the Trademark Trial and Appeal Board. See In re USA Warriors Ice Hockey
Program, Inc., 122 USPQ2d 1790, 1793 n.10 (TTAB 2017).
In sum, we find Applicant’s mark to be very similar overall compared to both cited
marks in appearance, sound, connotation and commercial impression. This DuPont
factor weighs in favor of likely confusion.
C. Consumer sophistication and purchaser care
Applicant argues, with little support, that buyers of the respective goods will be
sophisticated and unlikely to buy on impulse: “although it is recognized that the
present goods and the cited goods in each of the ‘[cited] registrations are supplements
as listed, in the trademark sense they are fundamentally different products having
different features, attributes, and functions which appeal to differing and discerning
types of consumers.”11 For support, Applicant relies on product labels for Registrants’
goods submitted with the applications underlying the cited registrations. These
product labels provide no information about buyers for the goods or conditions of sale.
Neither Applicant’s nor Registrants’ identification of goods includes any limitations
as to price or conditions of sale.
Inasmuch as there is no evidence to suggest that customers of dietary and
nutritional supplements are any more sophisticated than customers of any other

11 Id. at 14, 7 TTABVUE 15.
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goods, we consider ordinary members of the public as potential purchasers of the
dietary and nutritional supplements. “Board precedent requires the decision to be
based ‘on the least sophisticated potential purchasers.’” See Stone Lion Capital, 110
USPQ2d at 1163. Such ordinary and average consumers are likely to be confused by
similar marks used in connection with goods that are identical, as discussed above.
This DuPont factor is neutral.
D. Conclusion
We find Applicant’s and Registrants’ goods are identical in part, and the channels
of trade and classes of consumers to be the same. Applicant’s mark is similar to the
cited marks. The DuPont factor involving consumer sophistication and purchaser
care is neutral. We conclude that there is a likelihood of confusion between
Applicant’s mark, , and the cited marks, DELTAGOLD and DELTA
GENESIS, for the respective goods.

Decision: The refusal to register Applicant’s mark is affirmed.