Annovium Products, LLC

Trademark Trial and Appeal BoardJan 24, 2014

No. 85010681 (T.T.A.B. Jan. 24, 2014)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: January 24, 2014 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Annovium Products, LLC _____ Serial No. 85010681 _____ Thomas J. Moore of Bacon & Thomas PLLC for Annovium Products, LLC. Linda A. Powell, Trademark Examining Attorney, Law Office 106 (Mary I. Sparrow, Managing Attorney). _____ Before Kuhlke, Mermelstein and Bergsman, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Annovium Products, LLC (“applicant”) filed an intent-to-use application for the mark CoreFitnessRoller, in standard character form, for goods ultimately identified as follows: Exercise devices, namely, foam fitness rollers specially adapted for therapeutic purposes for use in physical rehabilitation, rehabilitative exercise and therapeutic rehabilitative movements, in Class 10; and Exercise devices, namely, fitness rollers; accessories for fitness rollers, namely, extension arms, fitted foam bag covers with padded interfaces, fitted covers, and fitted storage bags, all for use in the fields of general fitness, balance training, functional training, quadrant training, Serial No. 85010681 2 proprioceptive training, exercise, pilates-style exercise, cardio exercise, strength training and core strengthening exercise, in Class 28. During the prosecution of the application, applicant filed an amendment to allege use. The Trademark Examining Attorney refused to register the mark under Section 2(e)(1) of the Trademark Act of 1946, 15 U.S.C. § 1052(e)(1), on the ground that CoreFitnessRoller used to identify exercise fitness rollers is merely descriptive. Also, the Trademark Examining Attorney refused to register the mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that applicant’s mark so resembles the mark CORE FITNESS, in standard character form, for “exercise equipment, namely, stationary exercise bikes, treadmills, and stair stepping machines, elliptical trainer machines, manually operated ski machines, weight lifting machines, home gyms comprised of pulleys, flex rods that provide resistance, use of a system of gears that provide resistance, bar bells, manually-operated exercise equipment, motorized-operated exercise equipment, all of which make use of lower body and upper body exercises, and weight benches,” in Class 28, as to be likely to cause confusion.1 Whether CoreFitnessRoller is merely descriptive? The Trademark Examining Attorney argues that the term “Core Fitness” describes the physical condition of the body core or midsection, that the term “Roller” is a generic term for an exercise apparatus that uses a rolling device to 1 Registration No. 3624450, registered on May 19, 2009. Registrant disclaimed the exclusive right to use the word “Fitness.” Serial No. 85010681 3 build strength, and that the two terms do not lose their original meanings when combined to form the composite mark CoreFitnessRoller.2 Applicant, on the other hand, argues that its mark is inherently distinctive because it “is a new and unique word, not three separate well known words.”3 A term is merely descriptive if it “immediately conveys … knowledge of the ingredients, qualities, or characteristics of the goods … with which it is used." In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987). Whether a particular term is merely descriptive is determined in relation to the goods or services for which registration is sought and the context in which the term is used, not in the abstract or on the basis of guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002). This requires consideration of the context in which the mark is used or intended to be used in connection with those goods, and the possible significance that the mark would have to the average purchaser of the goods in the marketplace. See In re Chamber of Commerce of the United States of America, 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Bayer Aktiengesllschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007); In re Abcor Dev. Corp., 200 USPQ at 218; In re Venture Lending Assocs., 226 USPQ 285 (TTAB 1985). The question is not whether someone presented only with the mark could guess the products listed in the description of goods. Rather, the question is whether someone who knows what the 2 Trademark Examining Attorney’s Brief, pp. 7-8 (unnumbered). See also the July 19, 2010 Office Action. 3 Applicant’s Brief, p. 18. Serial No. 85010681 4 products are will understand the mark to convey information about them. In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-1317 (TTAB 2002); In re Patent & Trademark Services Inc., 49 USPQ2d 1537, 1539 (TTAB 1998); In re Home Builders Association of Greenville, 18 USPQ2d 1313, 1317 (TTAB 1990); In re American Greetings Corp., 226 USPQ 365, 366 (TTAB 1985). When two or more merely descriptive terms are combined, the determination of whether the composite mark also has a merely descriptive significance turns on the question of whether the combination of terms evokes a new and unique commercial impression. If each component retains its merely descriptive significance in relation to the goods or services, the combination results in a composite that is itself merely descriptive. In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004), quoting, Estate of P.D. Beckwith, Inc. v. Commissioner, 252 U.S. 538, 543 (1920). See also In re Tower Tech, Inc., 64 USPQ2d at 1318 (SMARTTOWER merely descriptive of commercial and industrial cooking towers); In re Sun Microsystems Inc., 59 USPQ2d 1084 (TTAB 2001) (AGENTBEANS merely descriptive of computer programs for use in developing and deploying application programs); In re Putman Publishing Co., 39 USPQ2d 2021 (TTAB 1996) (FOOD & BEVERAGE ONLINE merely descriptive of news and information services in the food processing industry). However, a mark comprising a combination of merely descriptive components is registrable if the combination of terms creates a unitary mark with a unique, nondescriptive meaning, or if the composite has a bizarre or incongruous meaning as applied to the goods or services. Serial No. 85010681 5 See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968) (SUGAR & SPICE for “bakery products”); In re Shutts, 217 USPQ 363 (TTAB 1983) (SNO- RAKE for “a snow removal hand tool having a handle with a snow-removing head at one end, the head being of solid uninterrupted construction without prongs”). Thus, we must consider the issue of descriptiveness by looking at the mark in its entirety. “On the other hand, if one must exercise mature thought or follow a multi- stage reasoning process in order to determine what product or service characteristics the term indicates, the term is suggestive rather than merely descriptive.” In re Tennis in the Round, Inc., 199 USPQ 496, 498 (TTAB 1978). See also, In re Shutts, 217 USPQ at 364-65; In re Universal Water Systems, Inc., 209 USPQ 165, 166 (TTAB 1980). In this regard, “incongruity is one of the accepted guideposts in the evolved set of legal principles for discriminating the suggestive from the descriptive mark.” In re Shutts, 217 USPQ at 365. See also In re Tennis in the Round, Inc., 199 USPQ at 498 (the association of applicant’s mark TENNIS IN THE ROUND with the phrase “theater-in-the-round” creates an incongruity because applicant’s services do not involve a tennis court in the middle of an auditorium). A. Exercise Rollers. The evidence submitted by the Trademark Examining Attorney establishes that core rollers are a well-known exercise apparatus. “A foam core roller is an exercise apparatus in the shape of a tube.”4 “Foam roller exercises can provide a lot 4 “Foam Core Roller Exercise Instructions,” Livestrong.com website attached to the July 31, 2011 Office action. Serial N of work muscles T website 5 “How F attached 6 Id. 7 July 19 o. 850106 for the co , abs, and One o core cylind insta on to some to rig these musc respo gettin he foam e (fitness1st oam Roller to the July , 2010 Offic 81 re muscle lower body f the mai is by crea er foam bility built p of the f way, the c ht the bod imbalan le groups nse. Whe g some go xercise ro .com).7 Exercises S 19, 2010 O e action. groups tha core elem n ways the ting speci roller is into it. T oam roller ore muscle y and ma ce challen kick in n this hap od core wo ller displa trengthen ffice action 6 t support ents.”5 foam roll fic balanc somethin hat means , or balan groups ea intain the ges are to prov pens on a c rk into a r yed below Your Core,” . the body, er tools he e challeng g that ha that when ces the bo ch respon right posi presented ide imme ontinual b outine.6 is advert FitDay we including lp with th es. A fu s inheren a user si dy on it i d in helpin tion. Whe , key cor diate bod asis, you’r ised in th bsite (FitD spinal sup e ll t ts n g n e y e e Fitness ay.com) port first Serial N “F tool to i awarene weight r T for the u 8 “Using (ideafit.c 9 Id. o. 850106 oam rolle mprove co ss. Now ooms, ath he use of f se of exer Foam Rolle om) attache 81 rs have lon re stability these ver letic traini oam roller cise rollers rs in the Fi d to the Ju g been us , balance, satile dev ng centers s has gene .9 tness Settin ly 31, 2011 7 ed in reha propriocep ices are b , physical rated the g,” Idea He Office actio bilitation tion, soft- eing seen therapy cli publicatio alth & Fitn n. clinics as a tissue mob in Pilate nics and y n of instru ess Associa multipur ility and b s mat cla oga studio ction man tion websi pose ody sses, s.”8 uals te Serial N Caroline FOAM R states th A and 28. 10 Sports o. 850106 Craeger OLLERS, a at “Core f pplicant p The produ tek.net web 81 also wrote guide to c itness has roduces on ct is displ site attach CORE ST ore streng never been e product ayed in ap ed to the Ju 8 RENGTH T th trainin this fast which it i plicant’s sp ly 31, 2011 RAINING U g. The adv and fun!”1 s seeking ecimen of Office actio SING INF ertisemen 0 to register use shown n. LATABLE t for that in Classe below. AND book s 10 Serial No. 85010681 9 Applicant describes its product as “[c]combining the comfort of a foam roller with three different weight level resistance options, the CoreFitnessRoller provides unique, challenging and diverse options” for increasing strength, health, flexibility and energy.11 The CoreFitnessRoller uses “both rolling and resistance to provide a complete regimen for all fitness levels.”12 Setting up applicant’s product entails, inter alia, “placing roller with extension arms on stabilizers.”13 Applicant’s “Set Up” instructions references the CFR Roll as a “roller.”14 Applicant’s founder explained that her inspiration for developing the CoreFitnessRoller was “to teach and empower participants about muscle release, circulatory flow, core strengthening, and overall body health.” (Emphasis added).15 Rolling before and after a workout is an essential part of the effectiveness of this exercise regimen. The pre-program roll serves as a warm-up while the post-program roll provides medically proven relief and rejuvenation for your myofascial structure (skin and connections to your body), your muscles and tendons, and your frame, i.e., spine, hips and upper back. (Emphasis in the original).16 Based on the foregoing, we find that applicant’s product is a type of exercise roller. 11 CoreFitnessRoller.com/products attached to the July 31, 2011 Office action. 12 CoreFitnessRoller.com/faqs attached to the July 31, 2011 Office action. 13 Id. 14 July 31, 2011 Office Action. 15 CoreFitnessRoller.com/faqs attached to the July 31, 2011 Office action. 16 “Set Up” instructions attached to the July 31, 2011 Office Action. Serial No. 85010681 10 B. Core Fitness The term “Core Fitness” refers to the physical condition of one’s midsection.17 “Core fitness exercise has become synonymous with abdominal conditioning.”18 The core muscles are anatomically referred (in general terms) to the muscles forming around the trunk of the body including the abdominal, oblique (side), mid and lower back. Although a portion of the core is visible surface muscle, most of the muscles that make up the core are deep tissue muscles layered underneath.19 “These core muscles lie deep within the torso. They generally attach to the spine, pelvis and muscles that support the scapula. When these muscles contract, we stabilize the the [sic] spine, pelvis and shoulders and create a solid base of support.”20 “Health and fitness experts highly recommend starting core fitness exercise immediately and repeating the routine at least 2 times a week. … Indeed, core 17 The Sheboygan Press (June 17, 2010); Poughkeepsie Journal (March 25, 2010); FitDay.com all attached to the July 19, 2010 Office action. 18 “How Core Fitness Exercise Benefits The Entire Body,” FitDay website (fitday.com) attached to the August 14, 2014 Office action. In the advertisement for the Caroline Craeger book CORE STRENGTH TRAINING USING INFLATABLE AND FOAM ROLLERS, noted above, the advertisement used “core fitness” as a synonym for “core strength”: “Core fitness has never been this fast and fun!” See also “Core Strength Training – Not Just About Your Abs,” Sports Fitness Advisor website (sport-fitness-advisor.com) attached to the May 22, 2013 Office action. 19 “What is Core Strength and Why is it Important,” Core Fitness Strength website (corefitnessstrength.com) (March 8, 2010) attached to the July 31, 2011 Office action. See also “The Importance of Core Fitness Exercise,” Best Fitness Program website (best-fitness- program.com); “Core Fitness Training,” In Home Personal Trainer website (inhome- personaltrainer.com) (December 7, 2010) both attached to the July 31, 2011 Office action; “How Core Fitness Exercise Benefits The Entire Body,” FitDay website (fitday.com) attached to the August 14, 2014 Office action. 20 “Fitness & Nutrition,” Master Moves Core Training website (mastermoves.com) attached to the July 31, 2011 Office action. Serial No. 85010681 11 fitness exercise is absolutely important in determining the good posture of the body. Strengthening your core muscles can absolutely eliminate those nuisances of back pain.”21 The record shows that the term “Core Fitness” is used descriptively in connection with wellness and rehabilitation services. See for example Santa Cruz CORE Fitness & Rehab! (santacruzcore), Core Fitness & Rehab, Inc. (dayinwilkesbarrescranton.com), Core Fitness (corefitnessstudio.com), Core Fitness and Physical Therapy (corefitnesspt.com), and Core Physical Therapy (seattlephysicaltherapy.com).22 The Core Fitness Solution (coreefitnesssolution.com) is a website by a “team of professionals dedicated to helping people develop healthy lifestyles through physical fitness and nutrition.”23 The term “Core Fitness” is also used in connection with the sale of exercise equipment. The MEIJER website (meijer.com) advertises the sale of “Core Fitness Equipment.24 This equipment is directed at improving core performance. Amazon.com advertises the sale the T-Core Fitness Trainer, a “core fitness trainer for men” that works the upper and lower abs and obliques.25 It is designed to build core strength. Amazon.com customers interested in purchasing the T-Core Fitness Trainer were also directed to the Rodeo Core Fitness Core Trainer. 21 “The Importance of Core Fitness Exercise,” Best Fitness Program website (best-fitness- program.com) attached to the July 31, 2011 Office action. 22 May 22, 2013 Office action. 23 May 22, 2013 Office action. 24 May 22, 2013 Office action. 25 May 22, 2013 Office action. Serial No. 85010681 12 C. Analysis Applicant’s mark CoreFitnessRoller consists of the combination of the terms “Core Fitness” and “Roller.” “Core fitness” means abdominal conditioning and a “roller” is, inter alia, an exercise apparatus. When the composite mark CoreFitnessRoller is used in connection with “exercise devices, namely, fitness rollers,” the mark immediately conveys the nature of the goods. The terms “Core Fitness” and “Roller” retain their descriptive significance in the composite mark and the resulting combination is itself merely descriptive. The combination of the terms does not create a unique, nondescriptive meaning and the composite mark does not have an incongruous meaning as applied to “exercise devices, namely, fitness rollers.” Applicant argues that it created the term CoreFitnessRoller to function as a trademark and that it does not appear in any dictionary.26 However, the fact that a term is not found in a dictionary is not controlling on the question of registrability where, as here, the examining attorney shows that the term has a well understood and recognized meaning. See In re Orleans Wines, Ltd., 196 USPQ 516, 517 (TTAB 1977) (BREADSPRED held merely descriptive of jellies and jams). Moreover, the fact that applicant may have coined the term CoreFitnessRoller or that applicant may be the only user of it does not render that term incongruous or distinctive. A descriptive term used first or even only by an applicant is not registrable as long as the relevant purchasing public perceives the term as describing the goods. See In re 26 Applicant’s Brief, pp. 16-17. Serial N Sun Mi (TTAB 1 F “Roller” impress relevant element 1040, 1 descript space, T equally (TTAB 2 services of the s Planaly althoug descript o. 850106 crosystems 985). inally, we into a ion of the purchasi s “Core Fi 043 (TTA ive term T HEATL is descriptiv 004) (GAS in the fiel pace does tics decisio h a space ive: In re (Fed. clean Dev. (GAS badge the n USPQ jams Perki 81 , Inc., 59 find that single ter two term ng public tness” and B 2007) HE ATL equivalen e of applic BUYER m d of pricin not create n, 70 USP was delet Gould Pap Cir. 1987 ing televis Corp., 588 BADGE a s; three j ame of th 516 (TT and jellies n-Elmer USPQ2d the comp m CoreF s “Core F will recog “Roller.” (“THEATL without a t in sound ant's good erely desc g and purc a differe Q2d at 14 ed betwee er Corp., ) (SCREE ion and c F.2d 811 t least d udges conc e goods); AB 1977) that wou Corp., 1 13 at 1087; I ression of itnessRolle itness” a nize the m See In re is simp space bet , meaning s”); In re riptive of hasing de nt meanin 55-56, also n the wo 834 F.2d NWIPE g omputer , 200 US escriptive urred in f In re Orle (BREADS ld be a sp 74 USPQ n re Acus the word r still c nd “Roller ark as co Cox Ente ly a com ween the and impre Planalytic providing cisions for g or perce cited the rds, the c 1017, 5 US eneric for screens); I PQ 215 (C for gas inding tha ans Wine PRED des read for b 57 (TT on, 225 U s “Core,” onveys th .” In oth nsisting o rprises In pressed v two words ssion to TH s Inc., 70 on-line ris natural ga ption of th following c ombined t PQ2d 111 a wipe f n re Abc CPA 197 monitorin t term wa s, Ltd., 19 criptive f read); In AB 197 SPQ 790, “Fitness,” e comme er words, f the sepa c., 82 USP ersion of . Without E ATL an USPQ2d k managem s; the abs e term). ases in wh erm rema 0 or or 8) g s 6 or re 2) 792 and rcial the rate Q2d the the d is 1453 ent ence The ich, ined Serial N In in conne O probativ likelihoo USPQ 5 F.3d 13 A. T In based o marketp Operati overall strength on the m Tea Inc Unfair inheren actual c o. 850106 (LAS utiliz view the ction with Whethe fitness eq ur determ e facts in d of confu 63, 567 (C 11, 65 USP he strengt determin n the natu lace recog ng Co., In strength of based on arketplac ., 80 USPQ Competi t potential ustomer r 81 ERGAGE ing lasers) reof, we fi “exercise r CoreFit rollers” so uipment ination un evidence t sion. In r CPA 1973 Q2d 1201 h of the m ing the str re of the nition valu c., 101 US Top's CLA the natur e recogniti 2d 1881, tion § 11 of the ter ecognition merely d . nd that ap devices, na nessRolle resembl ” as to be der Sectio hat are re e E. I. du ). See also , 1203 (Fed ark in the ength of a mark itsel e of the m PQ2d 116 SSIC CA e of the m on value o 1899 (TTA :83 (4th e m at the ti value of th 14 escriptive plicant’s m mely, fitn r for “exe es CORE likely to n 2(d) is levant to Pont de N , In re Maj . Cir. 2003 cited regis mark, we f and its c ark. See 3, 1171-7 NADIAN m ark itself a f the mark B 2006); d. 2013) ( me of its f e mark a for inte ark Core ess rollers” rcise dev FITNESS cause con based on the factor emours & estic Disti ). tration. consider b ommercia Top Tobac 2 (TTAB ark, we c nd its com ); Tea Boa McCarth “The first irst use. T t the time rferomete FitnessRol is merely ices, nam for “exer fusion? an analys s bearing o Co., 476 F lling Comp oth its inh l strength co, L.P. v. 2011) (“In onsider bo mercial s rd of India y on Tra enquiry f he second registratio rs ler when descriptiv ely, cise is of all of n the issu .2d 1357, any, Inc., erent stre , based on North Atla assessing th its inhe trength, b v. Republ demarks ocuses on evaluates n is sough used e. the e of 177 315 ngth the ntic the rent ased ic of and the the t or Serial No. 85010681 15 at the time the mark is asserted in litigation to prevent another's use.”). Market strength is the extent to which the relevant public recognizes a mark as denoting a single source. Tea Board of India v. Republic of Tea Inc., 80 USPQ2d at 1899. In other words, it is similar to acquired distinctiveness. However, neither the Trademark Examining Attorney, nor applicant, introduced any evidence regarding the renown of the mark CORE FITNESS as used by registrant. With respect to the inherent strength of the mark in cited registration, CORE FITNESS, the record establishes that CORE FITNESS has little intrinsic distinctiveness. In fact, the record is sufficient to establish that the term CORE FITNESS when used in connection with exercise equipment is merely descriptive because it directly conveys the purpose or function of the equipment. However, Section 7(b) of the Trademark Act, 15 U.S.C. §1057(b), provides that a certificate of registration on the Principal Register shall be prima facie evidence of the validity of the registration, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the mark in commerce in connection with the goods or services specified in the certificate. During ex parte prosecution, an applicant will not be heard on matters that constitute a collateral attack on the cited registration (e.g., a registrant’s nonuse of the mark). See In re Dixie Rests., Inc., 105 F.3d 1405, 1408, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997); In re Fiesta Palms, LLC, 85 USPQ2d 1360, 1363 (TTAB 2007); In re Peebles Inc. 23 USPQ2d 1795, 1797 n.5 (TTAB 1992); In re Pollio Dairy Prods. Corp., 8 USPQ2d 2012, 2014-15 (TTAB 1988). Because CORE FITNESS is registered and applicant has not petitioned to Serial No. 85010681 16 cancel the cited registration, we must consider the registration for the mark CORE FITNESS to be valid and, therefore, CORE FITNESS must be considered no worse than highly suggestive. B. The similarity or dissimilarity of the marks in their entireties in terms of appearance, sound, connotation and commercial impression. We now turn 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, any one of these means of comparison may be critical in finding the marks to be similar. In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987). 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 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 Paper Co., 190 USPQ 106, 108 (TTAB 1975). Serial No. 85010681 17 While the marks are not identical, they are similar because both marks include the term “Core Fitness”: CORE FITNESS vs. CoreFitnessRoller. The presence or absence of a space between the three words in applicant’s mark (Core Fitness Roller) and two words in the registered mark (Core Fitness) is an inconsequential difference which, even if noticed or remembered by consumers, would not serve to distinguish these marks. See, e.g., Seaguard Corp. v. Seaward International, Inc., 223 USPQ 48, 51 (TTAB 1984) (SEA GUARD and SEAGUARD are “essentially identical”); In re Best Western Family Steak House, Inc., 222 USPQ 827 (TTAB 1984) (“there can be little doubt that the marks [BEEFMASTER for restaurant services and BEEF MASTER for frankfurters and bologna] are practically identical and indeed applicant has not argued otherwise.”) (Emphasis in the original). As used in connection with the identified goods (“exercise devices, namely, foam fitness rollers” and “exercise equipment”), the marks have the same meaning and engender the same commercial impression: that is, exercise equipment for core or abdominal conditioning. In this case, applicant’s mark, CoreFitnessRoller, incorporates registrant’s entire mark, CORE FITNESS. In similar circumstances, likelihood of confusion has been found where the entirety of one mark is incorporated within another. See 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 Serial No. 85010681 18 with BENGAL for gin); 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’s mark may appear to prospective purchasers to be the roller line of registrant’s CORE FITNESS exercise equipment. We find that the marks CORE FITNESS and CoreFitnessRoller are similar in terms of appearance, sound, connotation and commercial impression. C. The similarity or dissimilarity and nature of the goods. Applicant is seeking to register its mark for exercise devices, namely, fitness rollers. The specific recitation of goods is set forth below: Exercise devices, namely, foam fitness rollers specially adapted for therapeutic purposes for use in physical rehabilitation, rehabilitative exercise and therapeutic rehabilitative movements, in Class 10; and Exercise devices, namely, fitness rollers; accessories for fitness rollers, namely, extension arms, fitted foam bag covers with padded interfaces, fitted covers, and fitted storage bags, all for use in the fields of general fitness, balance training, functional training, quadrant training, proprioceptive training, exercise, pilates-style exercise, cardio exercise, strength training and core strengthening exercise, in Class 28. The goods in the cited registration are “exercise equipment.” The specific recitation of goods is set forth below: Serial No. 85010681 19 Exercise equipment, namely, stationary exercise bikes, treadmills, and stair stepping machines, elliptical trainer machines, manually operated ski machines, weight lifting machines, home gyms comprised of pulleys, flex rods that provide resistance, use of a system of gears that provide resistance, bar bells, manually-operated exercise equipment, motorized-operated exercise equipment, all of which make use of lower body and upper body exercises, and weight benches, in Class 28. Applicant’s fitness roller is a type of exercise equipment whether used for therapeutic physical therapy (Class 10) or physical training and conditioning (Class 28). Thus, applicant’s fitness rollers and registrant’s exercise equipment are very closely related even if registrant’s description of goods does not include an exercise roller. In determining whether the goods are related, it is not necessary that the goods of applicant and registrant be similar or competitive in character to support a holding of likelihood of confusion; it is sufficient for such purposes that a party claiming damage establish that the goods are related in some manner and/or that conditions and activities surrounding the marketing of these goods are such that they would or could be encountered by the same persons under circumstances that could, because of the similarities of marks used with them, give rise to the mistaken belief that they originate from or are in some way associated with the same producer. Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399. 1410 (TTAB 2010); Schering Corporation v. Alza Corporation, 207 USPQ 504, 507 (TTAB 1980); Oxford Pendaflex Corporation v. Anixter Bros. Inc., 201 USPQ 851, 854 (TTAB 1978). In this case, the goods are similar in character because they are exercise equipment and as such the same consumers may encounter both marks in Serial No. 85010681 20 the same marketing milieu. As indicated above, potential consumers may believe that applicant’s CoreFitnessRoller is registrant’s line of foam fitness rollers. To show that exercise equipment or devices used for therapeutic purposes (Class 10) are related to exercise equipment or devices used for strength and conditioning (Class 28), the Trademark Examining Attorney submitted use-based, third-party registrations that listed the same products in both classes. Third-party registrations which individually cover a number of different goods that are based on use in commerce may have some probative value to the extent that they serve to suggest that the listed goods are of a type which may emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The registrations listed below are representative.27 Mark Reg. No. Goods BODY 2000 3738669 Electronic vibrating apparatus used to stimulate muscles and increase strength and physical performance for health, fitness and medicinal purposed (Class 10); Exercise equipment, namely, vibrating apparatus used in fitness and exercise programs to stimulate muscles and increase strength and physical performance (Class 28) 27 We did not consider the registrations with a filing basis under Section 44 of the Trademark Act because the marks in those registrations may not have been used in the United States. Serial No. 85010681 21 Mark Reg. No. Goods REJUVENATION PREVENTION & REHABILITATION 3800072 Physical rehabilitation, physical therapy and sports medicine equipment, namely, a shoulder stretcher using a cable (Class 10); Exercise equipment, namely, a shoulder stretcher using a cable (Class 28) GIGER MD 3254893 Powered Exercise machines for the arms and legs for physical therapy (Class 10); Exercise equipment, namely, manually operated jogging machines; exercise treadmills (Class 28) FREEDOM FLEX 3352205 Physical rehabilitation, physical therapy and sports medicine equipment all designed for medical use, namely, shoulder stretcher using a cable (Class 10); Exercise equipment, namely, shoulder stretcher using a cable (Class 28) ENGINEERED FOR WELLNESS. 4129343 Manually-operated exercise, balance and stability equipment for rehabilitation purposes (Class 10); Manually-operated exercise, balance and stability equipment for physical fitness and athletic training purposes (Class 28). The Trademark Examining Attorney also submitted excerpts from two websites displaying advertisements for treadmills, stair climbers and elliptical trainers, and shoulder pulleys for rehabilitation and physical conditioning. See Source 1 Medical website (source1medical.com) and 3B Scientific (a3bs.com)28 28 February 14, 2013 Office action. Serial No. 85010681 22 In view thereof, we find that applicant’s “exercise devices, namely, foam fitness rollers,” whether for physical therapy or general physical training, are related to registrant’s exercise equipment. D. Balancing the factors. Because the marks are very similar and the goods are related, we find that applicant’s mark CoreFitnessRoller for “exercise devices, namely, fitness rollers” in Classes 10 and 28 as more specifically set forth in the identification of goods so resembles registrant’s marks CORE FITNESS for exercise equipment more specifically set forth in the identification of goods as to be likely to cause confusion. Decision: The refusals to register applicant’s mark under Sections 2(d) and 2(e)(1) of the Trademark Act are affirmed.