Kaiser Foundation Health Plan, Inc.v.Maranda Pleasant

Trademark Trial and Appeal Board

Jan 10, 2022

91252204 (T.T.A.B. Jan. 10, 2022)

This Opinion is Not a Precedent of the TTAB Mailed: January 10, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Kaiser Foundation Health Plan, Inc. v. Maranda Pleasant _____ Opposition No. 91252204 _____ Catherine E. Maxson and Chike Eze of Davis Wright Tremaine LLP, for Kaiser Foundation Health Plan, Inc. Maranda Pleasant, pro se. _____ Before Kuczma, Lynch and Allard, Administrative Trademark Judges. Opinion by Lynch, Administrative Trademark Judge: I. Background Maranda Pleasant (Applicant) seeks to register the mark THRIVE in standard characters for “General feature magazine in the field of lifestyle, wellness, fitness and Opposition No. 91252204 - 2 - nutrition” in International Class 16,1 and for “Providing a website featuring non- downloadable publications in the nature of magazines in the field of lifestyle, fitness, wellness and nutrition” in International Class 41.2 Kaiser Foundation Health Plan, Inc. (Opposer) filed a notice of opposition on the sole ground of priority and likelihood of confusion with its numerous prior registered marks that consist of or include the term THRIVE, as shown in Opposer’s table below,3 and based on common law rights in THRIVE for “a wide variety of medical, health care, and educational services, including providing health care and hospital services, wellness programs, prepaid healthcare plans; and providing information, classes, and advice regarding medical, health, disease prevention and management, exercise, nutrition, fitness, and wellness issues, and relating to maintaining a healthy lifestyle,” as well as printed and downloadable publications and a website on the same subjects.4 1 Application Serial No. 86672033 was filed June 23, 2015 based on alleged use in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), as of March 1, 2014. 2 Application Serial No. 86671981 was filed June 23, 2015 based on alleged use in commerce under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), as of January 1, 2014. 3 1 TTABVUE 10-11, 15-36 (Notice of Opposition ¶6 & Exhibit A, attaching copies of the registration records). In her Amended Answer, Applicant admitted that the information contained in the table “appears to be correct.” 10 TTABVUE 3 (Amended Answer ¶6). 4 1 TTABVUE 9 (Notice of Opposition ¶3). Opposition No. 91252204 - 3 - Opposition No. 91252204 - 4 - In her Amended Answer, Applicant denied the salient allegations in the Notice of Opposition,5 and pleaded several purported affirmative defenses6 that merely amplify arguments against Opposer’s claims. We therefore do not address these as true affirmative defenses, and regardless, because Applicant raised them but did not file a brief to pursue them, we consider them waived or forfeited. See NT-MDT LLC v. Kozodaeva, 2021 USPQ2d 433, *6 n.8 (TTAB 2021); see also Gen. Mills Inc. v. Fage Dairy Processing Indus. SA, 100 USPQ2d 1584, 1588 n.1 (TTAB 2011) (“Claims, counterclaims, or defenses which are not argued in a party’s brief are considered waived.”), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014). Opposer filed a brief, but Applicant did not. II. The Record The record includes the opposed applications without any action by the parties. 37 C.F.R. § 2.122(b). Opposer attached to its Notice of Opposition current copies of registration records from the USPTO’s electronic database for each of its pleaded registrations listed above, so they are part of the record. 37 C.F.R. § 2.122(d)(1). Opposer’s additional evidence consists of:  By notice of reliance:7 5 4 TTABVUE. The Board previously struck Applicant’s first and third affirmative defenses, 9 TTABVUE 3, n.2, and Applicant’s only remaining defense is a challenge to Opposer’s priority, which is an element of Opposer’s likelihood of confusion claim. 6 The Board previously struck Applicant’s first affirmative defense, which alleged that the Notice of Opposition failed to state a claim upon which relief can be granted. 14 TTABVUE 1. 7 16-24 TTABVUE. Opposition No. 91252204 - 5 -  USPTO records of third-party registrations for goods and services similar to those listed in the opposed application and pleaded registrations;8  Opposer’s requests for admission to which Applicant failed to respond, such that the requests are deemed admitted;9  USPTO records from third-party applications that were the subject of letters of protest by Opposer;10  Third-party articles referring to Opposer’s marks and services;11  An online “case study” by Opposer titled “From a commodity to a cause;”12  Excerpts from Opposer’s social media accounts;13  An online article from the Washington Business Journal titled “Thrive Health Plans gets new name”;14 8 17 TTABVUE; 19 TTABVUE 59-152. 9 16 TTABVUE 9-289; 18 TTABVUE 1-279; 19 TTABVUE 1-58. Opposer’s requests for admission are deemed admitted by operation of law due to Applicant’s failure to respond to them. See Fram Trak Indus. v. Wiretracks LLC, 77 USPQ2d 2000, 2005 (TTAB 2006) (requests for admissions deemed admitted by respondent’s failure to respond to petitioner’s requests for admissions); Texas Dept. of Transp. v. Tucker, 95 USPQ2d 1241, 1244 (TTAB 2010) (stating that an admission conclusively establishes the matter admitted). 10 19 TTABVUE 153 - 21 TTABVUE 2. 11 21 TTABVUE 3-32. 12 21 TTABVUE 33-38. 13 21 TTABVUE 39-53; 22 TTABVUE 1-27. 14 22 TTABVUE 28-30. Opposition No. 91252204 - 6 -  Website evidence regarding Opposer’s THRIVE CITY and GENERATION THRIVE marks and Opposer’s promotional campaign for healthy eating under the THRIVE mark;15  Website evidence regarding Opposer’s audio and video promotional campaigns under its marks;16  Screenshots of Opposer’s “The Brand Store” offering THRIVE-branded goods.17  Declaration of David Figueroa, Opposer’s Senior Manager, National Marketing Content, with numerous exhibits.18  Declaration of Brenda Nixdorf, a paralegal with the law firm representing Opposer in this proceeding, with numerous exhibits.19 The record does not include any evidence from Applicant. The Board previously granted a motion to strike the only evidence Applicant attempted to submit, her testimony declaration, because Applicant failed to make the required pretrial disclosures.20 15 22 TTABVUE 31-41; 24 TTABVUE 11-27. 16 23 TTABVUE; 24 TTABVUE 1-10. 17 24 TTABVUE 28-47. 18 26 TTABVUE (25 TTABVUE confidential version); 27-29 TTABVUE. 19 15 TTABVUE. 20 35 TTABVUE. Opposition No. 91252204 - 7 - III. Entitlement to a Statutory Cause of Action21 Entitlement to a statutory cause of action must be established in every inter partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-26, 109 USPQ2d 2061, 2067 n.4 (2014)), reh’g en banc denied 981 F.3d 1083, 2020 USPQ2d 11438 (Fed. Cir. 2020), cert. denied, 142 S.Ct. 82 (2021). A party in the position of plaintiff may oppose registration of a mark when such opposition is within the zone of interests protected by the statute, 15 U.S.C. § 1063, and the plaintiff has a reasonable belief in damage proximately caused by the prospective registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at * 6-7 (Fed. Cir. 2020), cert. denied, 141 S.Ct. 2671 (2021). Demonstrating a real interest in opposing the registration of a mark satisfies the zone-of-interests requirement, and “[i]n most settings, a direct commercial interest satisfies the ‘real interest’ test.” Herbko Int’l v. Kappa Books, 308 F.3d 1156, 64 USPQ2d 1375, 1377 (Fed. Cir. 2002). Opposer’s direct commercial interest and reasonable belief in damage proximately caused by the registration of the mark in Applicant’s pending applications are established by Opposer’s registrations, for which it has proven status and title, confirming Opposer’s statutory entitlement to a Section 2(d)-based opposition that is 21 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting Sections 13 and 14 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020). Opposition No. 91252204 - 8 - not wholly without merit. See Lipton Indus. Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982); see also Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727-28 (Fed. Cir. 2012); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000). IV. Priority Because Opposer has made its registrations of record, and Applicant has not counterclaimed to cancel them, priority is not an issue as to the marks and services covered by the registrations. See Top Tobacco LP v. N. Atl. Op. Co., 101 USPQ2d 1163, 1169 (TTAB 2011) (citing King Candy, Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 82 USPQ 108 (CCPA 1974)); see also Massey Junior Coll., Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 181 USPQ 272, 275 n.6 (CCPA 1974) (“prior use need not be shown by a plaintiff relying on a registered mark unless the defendant counterclaims for cancellation.”); Itel Corp. v. Ainslie, 8 USPQ2d 1168, 1169 (TTAB 1988) (“because of the existence of opposer’s valid and subsisting registration, it need not prove prior use as to the services recited therein”). Opposer also established prior common law use of THRIVE and THRIVE- formative marks on or in connection with various goods and services that include print and digital publications providing information on health, wellness, fitness and nutrition.22 This priority from common law use is supported both by testimony from 22 E.g., 26 TTABVUE 13-17 (Figueroa Declaration); 26 TTABVUE 132-213; 27 TTABVUE 1- 25; 28 TTABVUE 265, 268. Opposition No. 91252204 - 9 - Mr. Figueroa and by documentary evidence of the magazines, as discussed in more detail below, pre-dating Applicant’s application dates (and claimed dates of first use). V. Likelihood of Confusion We turn next to likelihood of confusion. Our determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). The Board considers only those DuPont factors for which there is evidence and argument. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). “Not all DuPont factors are relevant in each case, and the weight afforded to each factor depends on the circumstances.” Stratus Networks, Inc. v. UBTA-UBET Communs. Inc., 955 F.3d 994, 2020 USPQ2d 10341 *3 (Fed. Cir. 2020). Two key considerations are the similarities between the marks and the relatedness of the goods and services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004); 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.”). Opposer bears the burden of proving its claim of likelihood of confusion by a preponderance of the evidence. Cunningham, 55 USPQ2d at 1848. Among Opposer’s pleaded registrations, we find Registration No. 5727986 (“’986 Registration”) and Opposition No. 91252204 - 10 - Registration No. 3674941 (“’941 Registration”) to contain the mark and services most similar to Applicant’s. The registrations are for THRIVE in standard characters, which is identical to the standard-character mark in the opposed applications, and Opposer’s other pleaded registrations do not contain any additional services not covered by the ’986 and ’941 Registrations. Therefore, we focus on these two registrations out of Opposer’s pleaded registrations. We also assess likelihood of confusion as to Opposer’s common law rights. A. The Goods and Services In analyzing the second DuPont factor to compare the services in the ’986 and ’941 Registrations to the goods and services in the opposed applications, we look to their identifications. See Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Applicant’s applications identify a “general feature magazine in the field of lifestyle, wellness, fitness and nutrition” and “providing a website featuring non-downloadable publications in the nature of magazines in the field of lifestyle, fitness, wellness and nutrition.” The ’986 Registration recites services that include “providing information on healthcare, health, wellness, maintaining a healthy lifestyle, disease prevention, and disease management,” and Opposer’s services in the ’941 Registration include “health care services,” as well as “educational services, namely, seminars, classes, and online instruction in the field of health care, disease prevention, and disease management.” As for Opposer’s prior common law services offered under its THRIVE Opposition No. 91252204 - 11 - mark, we focus particularly on its print and digital publications providing information on health, wellness, fitness and nutrition.23 First, we find the goods and services identical in part, because Opposer’s common law use on and in connection with print and digital publications overlaps with Applicant’s print and online magazines in the same field. We take judicial notice of the Merriam-Webster online dictionary definitions of “magazine” as “a print periodical containing miscellaneous pieces (such as articles, stories, poems) and often illustrated” and “such a periodical published online.”24 The record includes testimony that “[s]ince at least 2005, [Opposer] has used the THRIVE mark and THRIVE- formative marks on print and digital, i.e., online, publications. Documentary evidence corroborates the testimony. For example, Opposer’s publication under the THRIVE mark dated Summer 2012, in addition to containing a class catalog, also features articles about cancer screening, health coaches, managing asthma and allergies, and preventing falls, along with photographs.25 Another similar publication under the THRIVE mark dated Winter 2013 includes “A member’s story,” an article about a 12- year-old who lost weight and overcame prediabetes, an article about seasonal affective disorder, as well as an article with tips on “Healthier choices” for food and exercise.26 This publication also is illustrated with photographs. The publications 23 E.g., 26 TTABVUE 13-17 (Figueroa Declaration); see also 27 TTABVUE, 28 TTABVUE and 29 TTABVUE 1-46. 24 Merriam-webster.com entry for “magazine” accessed on January 1, 2022. 25 26 TTABVUE 132-184. 26 26 TTABVUE 185-213; 27 TTABVUE 1-25. Opposition No. 91252204 - 12 - meet the definition of a magazine. A 2007 “partners in health” publication by Opposer directs readers to “thrive online” at kp.org for more information on topics such as nutrition and fitness “for ways to stay in shape.”27 Opposer also points to the next page of the same 2007 publication, directing readers to kp.org for what Opposer describes as “an article on secure features … and improved site organization.”28 The record includes many similar publications, including some from 201829 and 2019.30 The record thus reflects common law use of THRIVE on print and online magazines whose subject matter aligns with that of Applicant’s magazines. Turning next to the services in the ’986 and ’941 Registrations, Opposer has proven that they are related to Applicant’s goods and services. First, Applicant admitted31 that healthcare institutions routinely publish print and/or digital magazines and provide information in the fields of lifestyle, wellness, fitness, and/or nutrition under their brands.32 Applicant also admitted that screenshots attached as Exhibits A, B, and C of Opposer’s Requests for Admissions, show the following, as stated in the Requests for Admission: [T]hird-party websites of entities that provide information in the fields of healthcare, health, wellness, maintaining a healthy lifestyle, disease prevention, and/or disease management and also offer digital and/or print magazines in the fields of lifestyle, 27 28 TTABVUE 265, 268. 28 28 TTABVUE 264. 29 27 TTABVUE 147-194; 28 TTABVUE 1-88. 30 28 TTABVUE 89-252. 31 As noted above, Opposer’s requests for admission are deemed admitted. 32 16 TTABVUE 10 (Requests Nos. 5 and 6). Opposition No. 91252204 - 13 - wellness, fitness and/or nutrition to the public, with all goods/services offered under the same trademark. [T]hird-party websites of entities that offer health care services and also offer digital and/or print magazines in the fields of lifestyle, wellness, fitness and/or nutrition to the public, with all goods/services offered under the same trademark. [T]hird-party websites of entities that offer educational classes, seminars and/or online instruction in the fields of health care, wellness, maintaining a healthy lifestyle, disease prevention, and/or disease management and also offer digital and/or print magazines in the fields of lifestyle, wellness, fitness and/or nutrition to the public, with all goods/services offered under the same trademark.33 This voluminous website evidence shows that consumers are accustomed to encountering under the same mark services such as those described in the ’986 Registration and ’941 Registration and goods and services such as those identified in the opposed applications.34 See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (evidence of third parties offering both types of goods under the same mark demonstrates relatedness of the goods). For example, the website evidence reflects that entities that provide health and wellness information through their websites, such as Oxygen, Mindful, and Forks Over Knives, also publish magazines under the same marks.35 In addition, the website evidence shows that entities that provide healthcare services, such as North Shore University Health System, UW Medicine, and Franciscan Health, often provide information and education about health and wellness as part of the overall healthcare plans and 33 16 TTABVUE 11-12 (Request Nos. 18-20). 34 16 TTABVUE 14-289; 18 TTABVUE 1-279; 19 TTABVUE 1-58. 35 16 TTABVUE 15-78. Opposition No. 91252204 - 14 - publish magazines on these subjects under the same marks.36 See Bonaventure Assoc. v. Westin Hotel Co., 218 USPQ 537, 546 (TTAB 1983) (finding overlap between hotel services and restaurant services because hotel customers encounter and frequent restaurants at the hotel, such that they are an “integral part” of the hotel services). In addition, Opposer introduced a large number of use-based third-party registrations that cover both types of goods and services under the same marks.37 “The use-based, third-party registrations . . . have probative value to the extent that they serve to suggest that the goods [and services] listed therein are of a kind which may emanate from a single source under a single mark.” Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1432 (TTAB 2013); see also In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). This evidence further supports the relatedness of the goods and services. This DuPont factor weighs heavily in favor of a likelihood of confusion because Applicant’s goods and services overlap in part and are otherwise highly related to Opposer’s goods and services. B. Trade Channels and Classes of Consumers Because the identifications in Applicant’s applications have no restrictions on channels of trade (apart from the formats for delivery), we must presume that the goods and services travel in all channels of trade appropriate for such print and online 36 16 TTABVUE 147-289; 18 TTABVUE 1-48. 37 17 TTABVUE; 19 TTABVUE 59-152. Opposition No. 91252204 - 15 - magazines. See Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002). And because the goods and services in the applications are legally identical to Opposer’s magazines covering the same subject matter, we also presume that the channels of trade and classes of purchasers overlap. See Stone Lion, 110 USPQ2d at 1161; In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board entitled to rely on legal presumption of channels of trade and classes of consumers in determining likelihood of confusion); In re Info. Builders Inc., 2020 USPQ2d 10444, *3 (TTAB 2020) (“Because . . . Applicant’s and Registrant’s goods and services are legally identical in part, we must presume that these goods and services travel through the same channels of trade and are offered or rendered to the same or overlapping classes of purchasers”) (citing Viterra, 101 USPQ2d at 1908; In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968)). The record also reflects that print and digital magazines such as Applicant’s are offered through websites that also provide the same types of services recited in the ’986 and ’941 Registrations. As noted above, many websites promoting and offering healthcare services, educational services on health and wellness, and information about health and wellness also promote or feature magazines - both print and digital - on their websites. Applicant has admitted this.38 Thus, the evidence shows that these types of goods and services travel through the same trade channels to the same classes of consumers. 38 16 TTABVUE 11-12 (Request Nos. 18-20). Opposition No. 91252204 - 16 - The third DuPont therefore factor also weighs in favor of likelihood of confusion. C. Strength of the Mark Before we turn to the similarity of the marks, we consider the strength of Opposer’s mark, as that will affect the scope of protection to which it is entitled. In determining the strength of a mark, we consider its conceptual strength, based on the nature of the mark itself, and its commercial strength, based on marketplace recognition of the mark. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010). Opposer argues that its THRIVE mark is “strong and famous.” We agree that the mark falls on the strong end of the spectrum. Turning first to conceptual strength, Opposer’s mark is inherently distinctive; the ’986 Registration and ’941 Registration do not include claims of acquired distinctiveness. THRIVE, which connotes prospering or flourishing, is somewhat suggestive of Opposer’s health and wellness-related services. The Figueroa declaration notes that Opposer selected the mark “because it captures [Opposer’s] unique approach to health and health care.”39 Turning next to commercial strength under the fifth DuPont factor, as argued by Opposer, such commercial strength rests on the extent to which “a significant portion of the relevant consuming public . . . recognizes the mark as a source indicator.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (citing Palm Bay Imps., Inc. v. Veuve Clicquot 39 26 TTABVUE 5. Opposition No. 91252204 - 17 - Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005)). This involves assessing the mark “‘along a spectrum from very strong to very weak.’” Id. (internal citations omitted). At one end of the spectrum, a commercially stronger mark receives a wider latitude of legal protection in the likelihood of confusion analysis. See Palm Bay Imps., 73 USPQ2d at 1694. By contrast, “the weaker an opposer’s mark, the closer an applicant’s mark can come without causing a likelihood of confusion and thereby invading what amounts to its comparatively narrower range of protection.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). Commercial strength under the fifth DuPont factor may be measured indirectly by the volume of sales and advertising expenditures in connection with the goods and services sold under the mark, and other factors such as length of time of use of the mark; widespread critical assessments; notice by independent sources of the goods and services identified by the marks; and the general reputation of the goods and services. Weider Publ’ns, LLC v. D & D Beauty Care Co., 109 USPQ2d 1347, 1354 (TTAB 2014); see also Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1308 (Fed. Cir. 2002) (recognizing indirect evidence as appropriate proof of strength). Opposer points to a variety of evidence of commercial strength, much of it confidential evidence, which we discuss only in general terms. Opposer’s Figueroa declaration includes testimony regarding the THRIVE mark that addresses the length of use (since 2004), the variety of media used to promote it (such as national TV, radio, newspapers, billboards and signage), celebrity ad Opposition No. 91252204 - 18 - appearances and voice-overs, the geographic scope of advertising, and substantial advertising expenditures with appropriate contextual evidence (see Bose Corp., 63 USPQ2d at 1309 (“[S]ome context in which to place raw statistics is reasonable”)).40 The testimony also details Opposer’s use of THRIVE on its website and social media, with confidential impressive figures of website visitors and page views included, and numbers of social media followers and views provided.41 The testimony and exhibits also detail unsolicited media attention and numerous advertising awards for commercials featuring Opposer’s THRIVE mark.42 Opposer also points to its use and registration of many THRIVE and THRIVE-formative marks,43 and its distribution and sale of promotional products including such marks.44 Finally, Opposer has submitted evidence of enforcement efforts to protect its THRIVE mark,45 as “[i]t has been observed that an active program of prosecution of infringers, resulting in elimination of others’ uses of similar marks, enhances the distinctiveness and strength of a mark.” See 2 J.T. McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, § 11.91 (5th ed. 2021 update). While Opposer also points to confidential testimony regarding market research and consumer awareness of its mark, the 40 26 TTABVUE 5-13, 19-25; 25 TTABVUE 5-13, 19-46 (confidential). 41 26 TTABVUE 19-21; 25 TTABVUE 19, 47-48 (confidential). 42 26 TTABVUE 12-13. 43 1 TTABVUE 15-36 (registrations); 22 TTABVUE 28-30; 22 TTABVUE 31-41; 24 TTABVUE 11-27; 23 TTABVUE; 24 TTABVUE 1-10; 25 TTABVUE 27-46 (confidential). 44 26 TTABVUE 22-24; 25 TTABVUE 22-24 (confidential). Applicant also admitted that “Opposer vigorously enforces its rights in its THRIVE trademark.” 16 TTABVUE 11 (Request No. 11). 45 15 TTABVUE 1-157 (Nixdorf Declaration and exhibits). Opposition No. 91252204 - 19 - uncorroborated testimony is far too general and conclusory, so we do not credit this point. In totality, we find the record sufficient to support Opposer’s claims that its THRIVE mark falls on the commercially strong end of the spectrum for likelihood of confusion purposes, and is entitled to a broad scope of protection. See Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1690-91 (Fed. Cir. 2018) (evidence regarding social media following, millions of customers targeted through direct mail advertising, nationwide retail locations, as well as national print, radio and TV ads, unsolicited movie and TV publicity). We are convinced by the extent and nature of Opposer’s use, the registrations of THRIVE and THRIVE-formative marks, the breadth of advertising and promotion, the substantial advertising expenditures, and Opposer’s enforcement efforts. However, even if we were to find the mark to be of average strength, our ultimate ruling on the likelihood of confusion claim on this record would remain the same. D. Similarity of the Marks We turn to the comparison of the marks “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps., 73 USPQ2d at 1691 (quoting DuPont, 177 USPQ at 567). Applicant’s THRIVE mark is identical to Opposer’s THRIVE mark. Because Applicant has applied for its mark in standard characters, it is legally identical to Opposer’s registered standard character mark and to Opposer’s common law THRIVE mark. They also sound the same, and share the identical connotation and commercial impression. Opposition No. 91252204 - 20 - This DuPont factor weighs heavily in favor of a finding of likely confusion. E. Degree of Care in Purchasing Applicant admitted that her print magazine annual subscription costs $36 and a two-year subscription costs $64.80.46 She also admitted that her online non- downloadable magazines are accessible at no charge.47 “When products are relatively low-priced and subject to impulse buying, the risk of likelihood of confusion is increased because purchasers of such products are held to a lesser standard of purchasing care.” See Recot Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000). In addition, Applicant admitted that consumers of her magazines are not likely to research or carefully consider their purchases.48 In light of the evidence and admissions that consumers would tend to exercise a low degree of care in purchasing goods and services such as Applicant’s, we find that this factor weighs slightly in favor of likely confusion. F. Conclusion Based on the identical marks for use on or in connection with in-part legally identical and otherwise related goods and services that travel in the same channels of trade to overlapping classes of purchasers not exercising a high degree of care in purchasing, we conclude that a likelihood of confusion exists. 46 16 TTABVUE 11 (Request No. 16). 47 16 TTABVUE 11 (Request No. 17). 48 16 TTABVUE 11 (Request Nos. 12 & 13). Opposition No. 91252204 - 21 - Decision: The opposition to the registration of Application Serial Nos. 86672033 and 86671981 therefore is sustained based on likelihood of confusion under Section 2(d) of the Trademark Act.