Liquid Health Labs, Inc.

Trademark Trial and Appeal Board

Oct 19, 2012

No. 77867186 (T.T.A.B. Oct. 19, 2012)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
October 19, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Liquid Health Labs, Inc.
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Serial No. 77867186
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Michael G. Sullivan of Nevrivy Patent Law Group PLLC for Liquid Health Labs,
Inc.
Michele-Lynn Swain, Trademark Examining Attorney, Law Office 116 (Michael W.
Baird, Managing Attorney)
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Before Bucher, Wolfson, and Shaw, Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:
Liquid Health Labs, Inc. (“applicant”) seeks registration on the Principal
Register of the mark POWERCAP (in standard characters) for goods identified in
the application as follows:
“Dietary supplemental drinks in the nature of vitamin
and mineral beverages; vitamin fortified beverages;
vitamin and mineral beverages made by adding vitamin
and mineral supplements from a bottle cap to water or
other liquid; vitamin and mineral supplements in a bottle
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cap for making vitamin and mineral beverages when
added to water or other liquid,” in International Class 5.1
The Trademark Examining Attorney has refused registration of applicant’s
mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), having
determined that registration would lead to a likelihood of confusion in view of the
goods recited in Reg. No. 3372897 for the mark ACAI POWERCAPS (in standard
character format) for “dietary supplements; nutritional supplements” in
International Class 5.2
When the refusal was made final, applicant appealed and requested
reconsideration. After the examining attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
Applicable Law
Our determination under Trademark Act Section 2(d) is based on an analysis
of the probative facts in evidence that are relevant to the factors bearing on a
likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563 (CCPA 1973); see also Palm Bay Imp., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir.
2005); In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003); and In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of

1 Application Serial No. 77867186 was filed on November 6, 2009, based on an allegation of
first use and first use in commerce of February 1, 2004.
2 Registered January 22, 2008.
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differences in the essential characteristics of the goods and differences in the
marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ
24, 29 (CCPA 1976); see also In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209
(TTAB 1999).
A. Similarity of Goods; Trade Channels; Classes of Purchasers
Turning first to the goods, we base our evaluation on the goods as they are
identified in the registration and application. Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See
also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001
(Fed. Cir. 2002). It is settled that it is not necessary that the respective goods be
identical or even competitive in order to find that they are related for purposes of
our likelihood of confusion analysis. That is, the issue is not whether consumers
would confuse the goods themselves, but rather whether they would be confused as
to the source of the goods. See In re Rexel Inc., 223 USPQ 830 (TTAB 1984). The
goods need only be sufficiently related that consumers would be likely to assume,
upon encountering the goods under similar marks, that the goods originate from,
are sponsored or authorized by, or are otherwise connected to the same source. See
In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed.
Cir. 1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
We find that applicant’s vitamin, vitamin-fortified, and mineral beverages, as
well as its “supplements in a bottle cap designed for making such beverages,” are
related to registrant’s “dietary and nutritional supplements.” First, the
identifications of goods for both marks include “supplements.” Applicant’s
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supplements come pre-packaged in a bottle cap and are designed to be dissolved in
liquid, presumably water,3 but the identification of goods for the cited mark does not
specify how registrant’s supplements are supplied; it is possible that they could be
pre-packaged in a format that would allow them to also dissolve in water. This
appears likely: on the website www.acaicapsulesreviews.com, there is an article
entitled “Acai Capsules Rated,” which includes a link to “acai smoothies” made from
registrant’s “Acai Power Caps”:
Acai Power Caps are still an excellent product, and the
makers, Sambazon,4 are just about the grand-daddies of
quality acai and this tastes great in acai smoothies.5
Moreover, supplements may be consumed in a variety of forms such as food
bars, powders, pills, and tablets, in addition to beverages and capsules.6 For
example, at www.moringa-health-story.com, “Zija - the Moringa Company”
advertises that “Zija has formulated moringa health based energy drinks available
as Zija Smart Drink, Zija Smart Mix, and Zija XM3 Xtreme Energy Drink.”7 The
“Zija smart drink” comes in a can, while Zija Powder Mix” contains “Zija in powder

3 One of the pages from applicant’s website shows what appears to be three water bottles
next to three bottle caps; in-between these pictures, the copy reads “Select your own
PowerCap Beverage for your needs.” The writing on the labels is illegible. There is no
other evidence in the record as to the contents of any bottles used in combination with
applicant’s supplements.
4 The owner of the cited registration is Samba, Inc., dba Sambazon.
5 Response to Office action, March 9, 2011, exhibit B.
6 See the third-party registrations and Internet evidence attached to the denial of
applicant’s Request for Reconsideration, October 26, 2011, showing dietary and nutritional
supplements provided in different forms.
7 At www.moringa-health-story.com. Moringa is described therein as “an extraordinary
plant” similar to acai.
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form … in a convenient, easy-to-open packet that allows you to instantly mix Zija
anywhere.”8
Applicant’s supplements are legally identical to registrant’s supplements.
Applicant has also applied for vitamin and mineral beverages. These goods
are related to dietary and nutritional supplements. The examining attorney has
made of record copies of several third-party registrations that show this
relationship.9 Copies of use-based, third-party registrations may serve to suggest
that the goods are of a type which may emanate from a single source. In re Mucky
Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed.
Cir. 1988). See also In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB
1993).
For example (emphasis added):
Reg. No. 3961785 for the mark TRU-FULVIC has been
registered for “Dietary and nutritional supplements;
Dietary and nutritional supplements containing Fulvic
Acid; Dietary and nutritional supplements for endurance
sports; Dietary beverage supplements for human
consumption in liquid and dry mix form for therapeutic
purposes; Dietary supplement beverage for treating
fatigue; Dietary supplement for eliminating toxins from
the intestinal tract; Dietary supplemental drinks;
Dietary supplemental drinks in the nature of
vitamin and mineral beverages; Dietary supplements;
Dietary supplements for human consumption; Dietary
supplements for boosting energy; Liquid nutritional
supplement; Liquid vitamin supplements; Mineral
nutritional supplements; Nutraceuticals for use as a
dietary supplement; Nutritional supplement for
eliminating toxins from the body; Powdered nutritional

8 Denial of applicant’s request for reconsideration, October 26, 2011.
9 The examining attorney has submitted these with the denial of applicant’s Request for
Reconsideration, October 26, 2011 as well as with the Final Office action, April 5, 2011.
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supplement drink mix; Vitamin and mineral
supplements.”
Reg. No. 4016063 for the mark IF YOU'RE NOT FIRST,
YOU'RE LAST! has been registered for “Dietary and
nutritional supplements; Dietary and nutritional
supplements for endurance sports; Dietary and
nutritional supplements used for weight loss; Dietary
drink mix for use as a meal replacement; Dietary
supplemental drinks; Dietary supplemental drinks in
the nature of vitamin and mineral beverages;
Dietary supplements; Dietary supplements for human
consumption; Dietary supplements in the nature of
weight loss powders; Health food supplements; Herbal
supplements; Herbal supplements for sleeping problems;
Liquid protein supplements; Liquid vitamin supplements;
Nutritional and dietary supplements formed and
packaged as bars; Nutritional supplements; Nutritional
supplements for boosting energy; Nutritional supplements
in the form of capsules tablets, and powder; Powdered
fruit-flavored dietary supplement drink mix; Powdered
nutritional supplement drink mix; Protein supplements;
Soy protein for use as a nutritional supplement in various
powdered and ready-to-drink beverages; Vitamin and
mineral supplements; Vitamin supplements; Weight
management supplements; Whey protein supplements.”
Reg. No. 3756413 for the mark ZENZA has been
registered for “Dietary and nutritional supplements;
mineral nutritional supplements; ionic nutritional
supplements; medicated preparations and lotions for the
care of the skin and hair; dietary supplement drinks,
nutritionally fortified beverages, powdered fruit-flavored
dietary supplement drink mix, powdered nutritional
supplement drink mix, vitamin fortified beverages;
meal replacement drink mixes, meal replacement bars,
meal replacement drinks, meal replacement powders,
meal replacement shakes; herbal supplements; vitamins,
mineral and naturopathic supplements in liquid,
drops, tablet, powder, or capsule form.”
Reg. No. 3879595 for the mark ZEUS’ JUICE has been
registered for “Dietary and nutritional supplements;
Dietary beverage supplements for human consumption in
liquid and dry mix form for therapeutic purposes; Dietary
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supplemental drinks; Dietary supplemental drinks in
the nature of vitamin and mineral beverages;
Dietary supplements; Dietary supplements for human
consumption.”
Reg. No. 3855816 for the mark FEM-FLAX has been
registered, inter alia, for “Dietary and nutritional
supplements; Dietary beverage supplements for human
consumption in liquid and dry mix form for therapeutic
purposes; Dietary food supplements; Dietary
supplemental drinks; Dietary supplemental drinks in
the nature of vitamin and mineral beverages;
Dietary supplements; Dietary supplements for controlling
cholesterol; Dietary supplements for human consumption;
Nutritional supplement for eliminating toxins from the
intestinal tract; Ground flaxseed fiber for use as a dietary
supplement; all the aforementioned made entirely of flax
seed.”
Reg. No. 3935922 for the mark
UNLOCK. SHARE. PROTECT has been registered for
“Dietary supplemental drinks; Dietary supplemental
drinks in the nature of vitamin and mineral
beverages; Nutritional additives for medical purposes
used in foods and dietary supplements for human
consumption; Nutritional supplements.”
Reg. No. 3831027 for the mark TOTAL VITALIS FOR
BETTER LIFE and Design has been registered for
“Dietary and nutritional supplements; Dietary
supplemental drinks in the nature of vitamin and
mineral beverages; Dietary supplements; Mixed
vitamin preparations; Multi-vitamin preparations;
Vitamin supplements; Vitamin tablets; Vitamins;
Vitamins and vitamin preparations.”
The examining attorney has also made of record copies of web pages from
several websites, such as www.cvs.com, that show nutritional beverages (in liquid
and powder form) as well as vitamins and supplements in capsules, drops, and
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gummies being sold through the same on-line store.10 This evidence is of only
minimal probative value, as the websites would be considered “big box stores” that
carry a variety of items, not all of which are related. Nonetheless, they do serve to
suggest that the trade channels and classes of purchasers are the same for both
applicant’s and registrant’s goods. Moreover, both serve a similar function, to
protect and promote one’s health and well-being. Accordingly, these du Pont factors
weigh in favor of a finding of likelihood of confusion.
B. Comparison of the Marks
In comparing the marks, we must consider the marks in their entireties as to
appearance, sound, connotation and commercial impression, to determine the
similarity or dissimilarity between them. Palm Bay, 73 USPQ2d at 1692. The test,
under the first du Pont factor, 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 that confusion
as to the source of the goods offered under the respective marks is likely to result.
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). On the other hand, different features may be
analyzed to determine whether the marks are similar. Price Candy Company v.
Gold Medal Candy Corporation, 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In

10 Final Office action, April 5, 2011.
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fact, there is nothing improper in stating that, for rational reasons, more or less
weight has been given to a particular feature of a mark, provided the ultimate
conclusion rests on a consideration of the marks in their entireties. In re National
Data Corp., 224 USPQ at 751. The focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific impression of
trademarks. See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Where, as here, the applicant’s goods are identical in part to the registrant’s goods,
the degree of similarity between the marks which is required to support a finding of
likelihood of confusion is less than it would be if the goods were not identical.
Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698 (Fed. Cir. 1992); see also, In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94
USPQ2d 1257, 1260 (Fed. Cir. 2010); In re Dixie Restaurants, Inc., 105 F.3d 1405,
1408, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997).
Applicant’s mark POWERCAP and the cited mark ACAI POWERCAPS are
similar in appearance and pronunciation inasmuch as they share the common word
“powercap.” As we observed in In re United States Shoe Corp., 229 USPQ 707, 709
(TTAB 1985): “Applicant's mark would appear to prospective purchasers to be a
shortened form of registrant’s mark.” In that case, the mark CAREER IMAGE for
women’s clothing stores and women’s clothing was refused registration in light of
the prior registration of the mark CREST CAREER IMAGES for uniforms including
items of women’s clothing. See also, In re Mighty Leaf Tea, 601 F.3d 1342, 94
USPQ2d 1257, 1260 (Fed. Cir. 2010) (applicant’s mark ML is similar to registrant’s
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mark ML MARK LEES); Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153
USPQ 406, 407 (CCPA 1967) (THE LILLY as a mark for women's dresses is likely to
be confused with LILLI ANN for women's apparel including dresses).
The addition of the word ACAI, and pluralization of the term POWERCAP (to
form POWERCAPS), in the registered mark do not detract from the overall
similarities between the marks in their appearance or pronunciation, for the
following reasons. First, the word ACAI is merely descriptive of a feature or
ingredient of the goods. It designates a “small dark purple fleshy berrylike fruit of a
tall slender palm (Euterpe oleracea) of tropical Central and South America that is
often used in beverages.”11 Based on this definition, it is likely that prospective
purchasers of registrant’s dietary and nutritional supplements will believe that the
goods contain acai berries, a probability borne out by Internet evidence showing
registrant’s advertising of its ACAI POWERCAPS supplements as “the premium
source of organic acai berries in a whole-food powder.”12 Words that are merely
descriptive of an ingredient of a product do not carry as much trademark
significance as other, non-descriptive words in the mark; purchasers cannot utilize
them to distinguish similar products among competitors. Here, “acai” carries less
significance than “powercaps,” even though the Internet evidence shows that the
term “caps” may be used as an abbreviation of “capsule” (as in “60 veggie caps”13).

11 Located at http://www.merriam-webster.com/dictionary/acai. The Board may take
judicial notice of dictionary definitions. See University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
12 Response to Office action, March 9, 2011, exhibits A and B.
13 Response to Office action, March 9, 2011, exhibit A.
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The term POWERCAPS is, at worse, suggestive only of dietary or nutritional
supplements that come in “capsule” format, whereas ACAI signifies the main
ingredient of the goods. Moreover, applicant’s removal of the “s” from the word
POWERCAPS does not meaningfully change the connotation of the word. It is well
established that the singular and plural forms of essentially the same term do not
generally create such different commercial impressions that confusion would be
avoided; marks consisting of the singular and plural forms of the same root term are
essentially the same mark. See Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339,
341 (CCPA 1957) (no material difference between the singular and plural forms of
ZOMBIE such that the marks were considered the same mark); In re Strategic
Partners, Inc., 102 USPQ2d 1397, 1399 (TTAB 2012)(“the difference between the
singular form ANYWEAR … and the plural form ANYWEARS … is not
meaningful”); Chicago Bears Football Club v. 12th Man/Tennessee LLC, 83
USPQ2d 1073, 1077 (TTAB 2007) (“we cannot attribute much trademark
significance to the difference in the plural and singular form of the word ‘Bear’ in
the marks”).
Applicant argues, however, that the marks “create substantially different
commercial impressions” because its mark POWERCAP “is clearly alluding to the
specialized bottle cap in the context of a drink or beverage,” while the registered
mark “is related to capsules (which the acai product is delivered in) and not a
specialized bottle cap in the context of drinks and beverages.”14 We recognize that
the applied-for goods include beverages specifically “made by adding vitamin and

14 Brief, p. 6.
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mineral supplements from a bottle cap to water or other liquid” and further include
the supplements themselves packaged “in a bottle cap for making vitamin and
mineral beverages when added to water or other liquid.” However, there is no basis
for holding that this same meaning could not attach to registrant’s supplements,
which have not been restricted and could conceivably also be delivered “in a bottle
cap.” While the Internet evidence appears to suggest that registrant’s goods are
sold as capsules, we must consider the goods as they are identified in the
application and registration, and there is no restriction or limitation in the
registrant’s identification of goods that would exclude them from being packaged in
bottle caps attached (or attachable) to beverages. Moreover, applicant’s goods
include “drinks” and “beverages” that are not identified as being sold in specialized
bottle caps. With respect to such goods, consumers may not attach any meaning to
the mark POWERCAP as suggesting the packaging in which the goods are sold.
And finally, because the identification of goods of registrant’s mark is silent about
how the goods may be packaged, and because the identification of goods of
applicant’s mark is silent as to how some of its goods are to be packaged, we are not
persuaded that the term POWERCAP(S) has a “double entendre” that so
distinguishes the marks that source confusion is unlikely. We also note that “a
distinction in trade dress cannot weigh against likelihood of confusion with respect
to the registration of a simple word mark” where each party is free to change the
packaging of its goods at any time. Kimberly-Clark Corp. v. H. Douglas Enterprises,
777 F.2d 1144, 227 USPQ 541. 543 (Fed. Cir. 1985). The prior Board decisions relied
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on by applicant, In re Sears, Roebuck and Co., 2 USPQ2d 1312 (TTAB 1987) (no
likelihood of confusion between CROSS-OVER for brassieres and CROSSOVER for
ladies’ sportswear); In re British Bulldog, Ltd., 224 USPQ 854 (TTAB 1984) (no
likelihood of confusion between PLAYERS for shoes and PLAYERS for men’s
underwear); and In re Sydel Lingerie Co., 197 USPQ 629 (TTAB 1977) (no likelihood
of confusion between BOTTOMS UP for ladies’ lingerie and BOTTOMS UP for
men’s wear), do not compel a different conclusion. While the Board has recognized
in these cases that it is possible for a single mark to have multiple meanings when
applied to related goods, creating a so-called “double entendre,” it was the
respective goods of the parties that changed the meaning and commercial
impression of the marks. Here, the goods are not so distinct as to evoke different
meanings in the marks. In Sears, the Board found that the goods, although related,
were at a “competitive distance” one from the other, Sears, 2 USPQ2d at 1314. In
British Bulldog, the Board found that the goods were “distinctly different” in
nature, even though capable of being sold in the same stores, because they would
ordinarily be displayed in different sections, are not complementary or companion
items, and “men’s underwear is in the nature of a self-service, ‘off the shelf’ item,
whereas shoes are purchased with care, usually with the assistance of a salesman.”
British Bulldog, 224 USPQ at 856. In Sydel Lingerie, the Board recognized that
even though the goods would be found in “some of the same types of stores,” they
would be sold in “distinctly different areas or sections of the apparel department of
such stores.” Sydel, 197 USPQ at 630. Here, applicant’s beverages may be sold
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side-by-side with other dietary and nutritional supplements, whether of beverage,
pill, capsule, powder form, etc. Thus, even taking into account the different
possible connotations of “powercap,” the holdings in the cases relied on by applicant
are nonetheless inapposite.
In sum, we find applicant’s mark POWERCAP to be similar in sight, sound,
meaning and commercial impression to the cited mark ACAI POWERCAPS. They
share the common element POWERCAP, which is the dominant portion of
registrant’s mark and the entirety of applicant’s mark. They both suggest that the
ingredients comprising the goods are “powerful” and available in a “cap.” To the
extent the marks evoke different meanings due to the different nature of each
party’s “cap,” they are not so distinct, but rather create the same general
connotations. For these reasons, this du Pont factor favors a finding of likelihood of
confusion.
C. Balancing the Factors
In view of the similarity of the marks and the relatedness of the goods, likely
channels of trade and classes of consumers, we find that registration of applicant’s
mark POWERCAP is likely to cause confusion with the previously-registered mark
ACAI POWERCAPS.
Decision: The refusal to register applicant’s mark POWERCAP is affirmed.