Georgia Bariatrics, P.C.v.Vitamin Logic, Inc.

Trademark Trial and Appeal Board

Jul 21, 1999

No. 91103579 (T.T.A.B. Jul. 21, 1999)

Paper No. 31
GDH/gdh
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 7/21/99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Georgia Bariatrics, P.C.
v.
Vitamin Logic, Inc.
_____
Opposition No. 103,579 to application Serial No. 75/029,389
filed on December 7, 1995
_____
Laurence P. Colton and Bradley K. Groff of Deveau, Colton &
Marquis for Georgia Bariatrics, P.C.
James M. Graziano of Duft, Graziano & Forest, P.C. for Vitamin
Logic, Inc.
______
Before Cissel, Hohein and Bucher, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
An application has been filed by Vitamin Logic, Inc. to
register the mark "VITAMIN LOGIC" for "vitamin preparations".1
Registration has been opposed by Georgia Bariatrics,
P.C. on the ground that opposer "is and for many years has been
in the business of selling health supplements including vitamin,

1 Ser. No. 75/029,389, filed on December 7, 1995, which alleges a bona
fide intention to use the mark in commerce. The word "VITAMIN" is
disclaimed.
Opposition No. 103,579
2
mineral and herbal preparations"; that since at least as early as
1992, opposer has used the mark "VITALOGIC" in connection with
such goods; and that applicant’s mark, when applied to
applicant’s goods, so resembles opposer’s previously used mark as
to be likely to cause confusion, mistake or deception.2
Applicant, in its answer, has denied the salient
allegations of the opposition.3
The record includes the pleadings; the file of the
opposed application; and, as part of opposer’s case-in-chief, the
testimony, with exhibits, of Jan McBarron, M.D., who is the
president and co-owner of opposer. As the rest of its case-in-
chief, opposer has submitted notices of reliance4 upon, among
other things,5 a copy of its application, Ser. No. 75/177,151, to
register the mark "VITA LOGIC" for "natural health supplements,

2 Although opposer also alleges that "the registration by Applicant of
its mark will falsely suggest a connection with Opposer," such
allegation will not be given further consideration inasmuch as it was
neither pursued at trial nor argued in the briefs.
3 While applicant additionally alleges, as a nominal affirmative
defense, that opposer, "by failing to pursue registration of Opposer’s
mark in a timely manner, is guilty of laches and has prejudiced
Applicant, who has expended significant resources in placing the mark
VITAMIN LOGIC in actual use," such defense was neither tried nor
raised in the briefs. Accordingly, no further consideration will be
given to applicant’s putative affirmative defense of laches.
4 The parties’ joint stipulation, received on June 22, 1998, to submit
evidence--including the filing of any notices of reliance--"outside of
each party’s Principal Testimony period" is approved.
5 While opposer also states that it relies upon its first set of
interrogatories to applicant and applicant’s answers thereto, copies
of such documents apparently were not furnished; instead, the Board
received a copy of applicant’s first set of discovery requests to
opposer.
Opposition No. 103,579
3
namely, natural vitamin, mineral and herbal preparations".6
Applicant, as its case-in-chief, took the testimony, with
exhibits, of Suzanne Maisch, who is applicant’s director of
operations and secretary. Briefs have been filed,7 but an oral
hearing was not requested.
The issues to be determined in this case are whether
opposer has established that it has priority of use of its mark8
and, if so, whether contemporaneous use of the parties’ marks in
connection with their respective goods is likely to cause
confusion as to source or sponsorship.
According to the record, opposer was started in August
1987 as the medical practice of Dr. Jan McBarron, a physician

6 The remaining items upon which opposer relies, although not proper
subject matter for a notice of reliance, are in any event surplusage
inasmuch as they constitute duplicate copies of evidence which
otherwise forms part of the record in this proceeding.
7 Although opposer, in its main brief, raises the additional issue that
the application opposed is barred by applicant’s intentional misuse of
the registration notice, such issue was neither pleaded nor tried by
the express or implied consent of the parties. Accordingly, no
further consideration will be given thereto. Similarly, applicant in
its brief sets forth the nonsensical statement that it "believes that
Applicant’s mark VITAMIN LOGIC is not confusingly similar to Opposer’s
mark VITA LOGIC and Applicant believes that it is the senior user of
the mark VITAMIN LOGIC and that it is legally identical to Opposer’s
mark VITA LOGIC used in connection with legally identical goods and,
thus, Opposer’s application should be rejected." The basis for such
rejection, applicant explains, is that "if it is determined that the
mark ... was not used [by opposer] at the time Opposer’s application
was filed, Opposer’s application must be held void ab initio ...."
However, inasmuch as opposer’s application to register its mark is not
before the Board in this proceeding, no further consideration will be
given to such claim.
8 While opposer, as noted previously, pleaded ownership of the mark
"VITALOGIC," the evidence presented by opposer at trial shows use of
the mark "VITA LOGIC" instead. Nevertheless, inasmuch as there is no
question that the latter, for all practical purposes, is the legal
equivalent of the former, we have adopted the practice of the parties
in their briefs and will refer to opposer’s mark in the remainder of
this opinion as "VITA LOGIC," since such two-word term projects the
same continuing commercial impression as the single term "VITALOGIC".
Opposition No. 103,579
4
whose principal area of expertise is "[b]ariatric medicine, which
is the medical specialty of obesity." (McBarron dep. at 76.)
Dr. McBarron is the president of opposer and is the co-owner
thereof along with her husband, Joseph "Duke" Liberatore. In
conjunction with the patient treatment programs prescribed by Dr.
McBarron, opposer markets various vitamins, herbs and supplements
under the mark "VITA LOGIC" and has done so since at least as
early as the summer of 1994.
Dr. McBarron and her husband also own three other
business. One of those, Peachtree Natural Foods, is a retail
"natural foods store" which opened the first of its eight
locations in October 1991 and primarily sells vitamin and herbal
supplements, including opposer’s "VITA LOGIC" products. (Id. at
8.) A second company, The Institute For Healthy Living, is a
mail-order retailer and wholesaler which was started in August
1992 and sells vitamins, herbs and supplements, including
opposer’s "VITA LOGIC" products, to consumers and to natural food
or health food stores. In addition, The Institute For Healthy
Living acts as the supplier of "VITA LOGIC" vitamins, herbs and
supplements for both opposer and Peachtree Natural Foods stores.
A third business is a nationally syndicated weekly radio show on
health issues, known as "The Duke And The Doctor," which began
around February or March 1993. Such show, of which a television
version is done twice weekly, airs five times a week and features
a listener call-in format. The show also advertises and offers
opposer’s "VITA LOGIC" vitamins, herbs and supplements. Thus,
according to Dr. McBarron, opposer’s "Vita Logic [brand of goods]
Opposition No. 103,579
5
is sold through ... Duke And The Doctor, ... the Institute For
Healthy Living and all the [Peachtree Natural Foods] stores as
well as through my private practice." (Id. at 15.)
Dr. McBarron also testified that "our line of [VITA
LOGIC] vitamin[s] is sold in health food stores all across the
country because the institute sells wholesale to health food
stores." (Id. at 17.) Opposer, however, does not produce any of
its products. Instead, through The Institute For Healthy Living,
whose name appears on labels for the goods, opposer has a
manufacturing company make and package its vitamins, herbs and
supplements. Depending on the amount of product, opposer’s "VITA
LOGIC" goods range in price from $6.95 to $90.00 a bottle. Gross
revenue for such goods amounted to $175,816.00 for the first half
of 1997, $329,860.00 for 1996 and $89,991.00 for 1995,
respectively representing unit sales of 11,271, 21,991 and 5,999
bottles. While, in particular, opposer derives the predominant
portion of its revenue from Dr. McBarron’s fees as a physician,
she estimated that about 15 percent of opposer’s revenue is from
sales of "VITA LOGIC" products. Sales thereof produce better
than 50 percent of the revenue generated by Peachtree Natural
Foods stores and account for 60 to 70 percent of the revenue
earned by The Institute For Healthy Living.
Opposer’s products were first advertised at least as
early as the summer of 1994. Such products are advertised in
mail-order catalogs distributed by The Institute For Healthy
Living and in monthly newsletters disseminated as flyers and bag-
stuffers by Peachtree Natural Foods stores. The latter company,
Opposition No. 103,579
6
along with opposer, also does local newspaper, print, radio and
television advertising for the "VITA LOGIC" goods. In addition,
such goods are promoted on The Duke And The Doctor show, which on
occasion broadcasts live from Peachtree Natural Foods and other
health food stores. During the first six months of 1997, opposer
spent $116,752.00 on advertising its "VITA LOGIC" products and
expended $205,933.00 and $114,419.00 thereon in, respectively,
1996 and 1995. Other sources of advertising include radio,
television and print ads run by various health food stores which
carry such products.
Dr. McBarron first heard of applicant’s "VITAMIN LOGIC"
vitamin preparations in late 1996 when, while doing her program,
she "had a caller on the radio ask if Vitamin Logic was the Vita
Logic we talk about." (Id. at 64.) According to Dr. McBarron,
she has experienced about a dozen of such incidents, some of
which have been in the form of letters to her radio show from
persons who were unable to get their inquiries on the air. These
inquiries, she testified, have been "sprinkled out" over time,
although she could not recall whether any of the letters were
retained. (Id. at 65.)
Applicant, like opposer, sells a full line of vitamin
preparations and herbal supplements. Applicant, which was
incorporated sometime in 1996, markets such products under the
mark "VITAMIN LOGIC" and has continuously done so, according to
Ms. Maisch’s knowledge, since the date of its incorporation.
Applicant’s line of "VITAMIN LOGIC" products includes "commodity"
items such as vitamin C, which are offered by virtually every
Opposition No. 103,579
7
company which sells vitamin preparations and supplements, as well
as its exclusive "propriety formulations" of nutritional
supplements. (Maisch dep. at 9.)
Like opposer, the manufacturing of applicant’s goods is
"contracted out" in that applicant has another company produce
and label its "VITAMIN LOGIC" products. However, unlike opposer,
applicant’s goods are not sold to wholesalers and thus are not
sold, for example, by physicians who would prescribe such
products. Instead, applicant’s goods are sold only by mail order
and at retail through both "Great Earth" vitamin stores, which
also sell opposer’s "VITA LOGIC" products,9 and applicant’s own
"Vitamin Logic" health food stores. As of the deposition date of
its witness, applicant operated five of its "Vitamin Logic"
health food stores and had franchised two others. Sales of
applicant’s "VITAMIN LOGIC" vitamin preparations for 1997, the
only year for which sales figures were provided, were stated to
be $500,000.00.
Applicant advertises its "VITAMIN LOGIC" goods in a
variety of ways, but many of its printed ads and most of its
promotional materials reflect the theme that such products, as
stated on its letterhead stationery, are "Premium Quality, Doctor
Designed, Laboratory Tested". (Applicant’s exhibit 15.) In

9 Specifically, when asked if she had "ever heard of Great Earth"
vitamin stores, Dr. McBarron replied that "we have a customer called
Great Earth" and further testified as follows:
Q. And do you sell Vita Logic products to them?
A. Yes.
(McBarron dep. at 71.)
Opposition No. 103,579
8
particular, as to the role apparently played by doctors in the
development and marketing of applicant’s goods, the packet of
materials it distributes to prospective franchisees indicates
that "A team of health care professionals, including medical
doctors, naturopathic physicians, nutritionists and
biochemists[,] formulates each product"; a flyer containing
coupons refers to "A Complete Doctor Designed Nutritional
Program"; and a store handout, besides explaining that the phrase
"’Doctor Designed’ mean[s]" that applicant’s "supplements are
formulated by health professionals who understand the human
body," states that:
The unique formulas at VITAMIN LOGIC® bear
the label "Doctor Designed" because of the
extensive research and cooperation that went
into formulating them. Created by a
consortium of health experts, VITAMIN LOGIC®
formulas are the collective work of Medical
and Naturopathic Physicians working in
conjunction with Biochemists and
Nutritionists to bring you fully balanced,
high potency formulas.
(Applicant's exhibits 2, 7 and 11.)
Applicant's advertising of its "VITAMIN LOGIC" products
is done in local newspapers and on the radio. In addition,
prospective customers visiting its retail stores receive a free
three-day supply of one of applicant's vitamin and mineral
supplements. Applicant, since at least the beginning of 1996,
also sponsors a weekly call-in radio talk show, hosted by a
certified nutritionist, on health and nutrition. The show, which
is broadcast live from applicant's retail stores, regularly
Opposition No. 103,579
9
features commentary from medical doctors and naturopathic
physicians.
While Ms. Maisch indicated in her testimony that she
has heard of the name "VITA LOGIC," she also testified that, to
the best of her knowledge, none of applicant’s customers who have
purchased its "VITAMIN LOGIC" products by mail order or through
its retail stores have ever inquired about opposer’s "VITA LOGIC"
goods. Ms. Maisch also testified to authorizing a trademark
search report, which was prepared by a commercial firm after the
filing of both applicant’s and opposer’s applications to register
their respective marks, which lists a total of 116 instances in
which the word "LOGIC" (or derivatives thereof) is used as a
formative for marks for vitamins or nutritional supplements.
However, other than the parties’ marks, the record contains no
evidence that any of such marks has been or is currently in
actual use, nor are any of the third-party marks listed in the
search report substantially similar to either of the parties’
marks.
Turning first to the issue of priority, we note that if
opposer does not have rights in its mark which are equal or
superior to those of applicant, it simply cannot prevail in this
proceeding. We find, however, that opposer does have priority
inasmuch as its first use of the mark "VITA LOGIC" for vitamins,
minerals and herbal preparations occurred in September 1994. By
contrast, not only did applicant’s first use of the mark "VITAMIN
LOGIC" for vitamin preparations not take place until sometime in
1996, but the earliest date upon which it can rely in this
Opposition No. 103,579
10
proceeding, namely, the December 5, 1995 filing date of its
involved application,10 is obviously subsequent to opposer’s date
of first use. Applicant asserts, however, that opposer "has
failed to produce any evidence of any use of the mark VITA LOGIC
in the name of Georgia Bariatrics, P.C." and that, instead, the
"exhibits of use of the mark VITA LOGIC produced in the evidence
collected in this proceeding are all in the name of [The]
Institute [F]or Healthy Living."
It is our view, however, that the testimony and
exhibits introduced by Dr. McBarron are sufficient to establish
opposer’s September 1994 date of first use of the VITA LOGIC mark
for vitamin, mineral and herbal supplements. The exhibits, which
variously show that such products have been labeled as being
"Formulated For: Institute of Healthy Living" and that they have
been advertised by Peachtree Natural Foods and The Institute For
Healthy Living, are not inconsistent with Dr. McBarron’s
testimony that opposer is the owner of the "VITA LOGIC" mark.
Such companies, which like opposer are co-owned by Dr. McBarron
and her husband (who also constitute the sole corporate officers
thereof), are on this record merely dealers which buy and resell
the branded merchandise, but such activity does not vest therein
any ownership rights in the mark for the goods they distribute.11

10 See Zirco Corp. v. American Tel. & Tel. Co., 21 USPQ2d 1542, 1544
(TTAB 1991).
11 See 2 J. McCarthy, McCarthy on Trademarks & Unfair Competition
§16:48 (4th ed. 1999) at page 16-66. Similarly, we also note that
approximately half of the labels for applicant's "VITAMIN LOGIC"
products, which were introduced as exhibit 1 to the deposition of Ms.
Maisch, contain no reference to applicant and, instead, simply bear
the legend "Distributed by Alpine Naturals".
Opposition No. 103,579
11
Furthermore, according to Dr. McBarron, while she does not have
any invoices from Marlyn Nutraceuticals, which formerly served as
the manufacturing company for "VITA LOGIC" products, from before
April 1995 or have any records from 1994 due to "some internal
problems," she also testified on cross-examination that she and
her husband "make all the decisions" for the companies which they
co-own and that "we have set it up so that The Institute For
Healthy Living is the one who deals with the manufacturer" so
that opposer, "Georgia Bariatrics[,] remains exclusively for
patient care, so to speak." (McBarron dep. at, respectively, 91
and 82.)
This brings us, therefore, to consideration of the
pertinent factors set forth in In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973), for
determining whether a likelihood of confusion exists. To begin
with, we note among other things that, as identified in its
application, applicant’s "vitamin preparations" are legally
identical to opposer’s various health supplements, including
vitamin, mineral and herbal preparations. As applicant concedes
in its brief, "[i]t is undisputed that Applicant’s goods and
Opposer’s goods are closely related and, in some cases, virtually
identical."
Applicant nevertheless argues that, "while Applicant’s
goods and Opposer’s goods are closely related or in many cases
identical, the unique nature of the vitamin and dietary
supplement business renders the proprietary products and the

Opposition No. 103,579
12
customer service delivered along with the vitamin and dietary
supplement products the determining factor in the customer’s
identification of the source of vitamin and dietary supplements."
Applicant’s argument, however, ignores the fact that, as set
forth in its application, its "vitamin preparations" encompass
what applicant has characterized as "commodity items that are
offered by virtually every supplier" in the vitamin and dietary
supplement field, including the commodity products sold by
opposer. It is settled, in this regard, that the registrability
of applicant’s mark must be evaluated on the basis of the
identification of goods set forth in its involved application,
notwithstanding what the record may reveal as to the particular
nature of applicant’s goods, their actual channels of trade or
manners of distribution, or the classes of purchasers to which
they are in fact sold. See, e.g., Octocom Systems Inc. v.
Houston Computer Services Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990) and Canadian Imperial Bank of Commerce,
N.A. v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815-16
(Fed. Cir. 1987). Moreover, even as to the so-call proprietary
products, opposer’s witness indicated that opposer offers
proprietary products which are similar to those sold applicant,
although the formulas therefor are not identical. In particular,
upon reviewing a mail-order form and price list for applicant’s
"VTAMIN LOGIC" products, Dr. McBarron testified that she did not
"see any product on here that there’s not a comparable one in the
Vita Logic line." (Id. at 68.)
Opposition No. 103,579
13
It is clear, therefore, that as legally identical
products, applicant’s vitamin preparations and opposer’s vitamin,
mineral and herbal dietary supplements would be sold through the
same channels of trade to the same classes of customers. In
fact, the record confirms that such is the case in that the
parties, for example, sell their goods to ordinary consumers by
mail order and through health food and/or natural food stores.
Both parties also market their vitamins and dietary supplements
to the general public in identical manners and tout their goods
as doctor designed or recommended. Specifically, as applicant
concedes in its brief, "it is a case of deja vu since both use a
radio talk show, personal appearances, newspaper inserts,
newsletter, newspaper advertisements, coupons, and the like to
promote their respective goods." There simply is no doubt,
therefore, that if the parties’ vitamin preparations were to be
sold under the same or substantially similar marks, confusion as
to the source or sponsorship thereof would be likely to occur.
While we disagree with opposer’s assertion in its main
brief that the parties’ marks are "legally identical," we find
that when considered in their entireties, applicant’s "VITAMIN
LOGIC" mark is substantially similar in sound, appearance and
connotation to opposer’s "VITA LOGIC" mark. Most importantly,
when used in connection with dietary supplements and other
vitamin preparations, the respective marks project essentially
the same overall commercial impression.
Opposition No. 103,579
14
In view thereof, and irrespective of any instances of
actual confusion as asserted by opposer,12 we conclude that
consumers familiar with opposer’s "VITA LOGIC" mark for its
various health supplements, including vitamin, mineral and herbal
preparations, would be likely to believe, upon encountering
applicant’s substantially similar "VITAMIN LOGIC" mark for its
vitamin preparations, that such goods (which are identical for
all practical purposes) emanate from, or are otherwise sponsored
by or affiliated with, the same source.
Decision: The opposition is sustained and registration
to applicant is refused.
R. F. Cissel
G. D. Hohein
D. E. Bucher
Administrative Trademark Judges,
Trademark Trial and Appeal Board

12 As to opposer’s contention that the record reveals several instances
of actual confusion between the parties’ marks, we are constrained to
agree with applicant that the single incident testified to by Dr.
McBarron, in which a caller to The Duke And The Doctor radio program
inquired as to whether "VITAMIN LOGIC" products were the "VITA LOGIC"
products talked about on the show, tends to show that the particular
caller was able to distinguish the goods, based upon the marks, rather
than being actually confused. Dr. McBarron’s undocumented reports of
several other allegedly similar incidents of actual confusion must be
considered, in the absence of further details, as simply de minimis.
In addition, the fact remains that, with the exception of a single
retail outlet ("Great Earth" vitamin stores) shared by the parties,
circumstances have not been shown to be such that if confusion were
likely, it could be expected to have taken place. Accordingly,
whether there have been any incidents of actual confusion is not a
meaningful factor in this case.