Maharishi Ayur-Ved Products Intl.

Trademark Trial and Appeal Board

Jul 15, 1999

No. 75159603 (T.T.A.B. Jul. 15, 1999)

Paper No. 11
ejs
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JULY 15, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Maharishi Ayur-Ved
Products International
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Serial No. 75/159,603
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James C. Nemmers for Maharishi Ayur-Ved Products
International, Inc.
Tina L. Snapp, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney)
_______
Before Simms, Seeherman and Wendel, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Maharishi Ayur-Ved Products International, Inc. has
appealed the refusal of the Trademark Examining Attorney to
register on the Supplemental Register HEALTHY HAIR & NAILS
for "herbal dietary supplement." The application was
originally filed on September 3, 1996 on the Principal
Register, claiming dates of first use of May 1996. When
Ser. No. 75/159,603
2
the Examining Attorney made final refusals to register the
mark pursuant to Section 2(d) and 2(e)(1) of the Trademark
Act, the latter ground for the reason that the mark is
merely descriptive of the identified goods, applicant
amended its application to the Supplemental Register on
April 13, 1998. This amendment was accepted by the
Examining Attorney, who thereupon withdrew the refusal
based on Section 2(e)(1). Accordingly, the only ground for
refusal which is the subject of this appeal is Section
2(d). It is the Examining Attorney’s position that
applicant’s mark so resembles the mark HEALTHY HAIR, as
depicted below, registered on the Supplemental Register for
vitamins and food supplements,1 as to be likely to cause
confusion or mistake or to deceive. The registration
indicates that the words HEALTHY HAIR have been disclaimed.
Applicant and the Examining Attorney have filed
briefs; an oral hearing was not requested.

1 Registration No. 1,316,295, issued January 22, 1985, partial
Section 8 affidavit accepted. The registration originally
included goods in Class 3, namely, hair shampoos and liquid hair
conditioners, but this class was cancelled for failure to file a
Section 8 affidavit with respect to the goods in that class.
Ser. No. 75/159,603
3
We affirm the refusal.
In determining the issue of likelihood of confusion,
we must consider all relevant du Pont2 factors. Turning
first to the goods, we find that herbal dietary supplements
are at the very least highly similar to vitamins and food
supplements, if not encompassed within the category of food
supplements. In this connection, we note that the list of
ingredients of applicant’s product, as shown in the
specimens, include licorice, basil and winter cherry.
Further, the third-party registrations made of record
by the Examining Attorney show that entities have
registered their marks for both vitamins and nutritional
dietary supplements;3 nutritional and dietary supplements of
vitamins and herbs;4 and vitamin and nutritional supplements
for the hair.5 Third-party registrations which individually
cover a number of different items serve to suggest that the
listed goods and/or services are of a type which may
emanate from a single source. In re Albert Trostel & Sons
Co., 29 USPQ2d 1783 (TTAB 1993).
Because applicant’s identified goods and the goods of
the cited registration are so closely related, if not, in

2 In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973).
3 Registration NO. 1,697,329.
4 Registration No. 1,711,119.
5 Registration No. 1,668,204.
Ser. No. 75/159,603
4
part, identical, they must be deemed to travel in the same
channels of trade. Applicant argues that its goods are
"sold almost exclusively by direct mail and through natural
food stores where you will not find the ’main stream’
products [presumably registrant’s vitamins and food
supplements] which are sold through your typical retail
stores." Brief, p. 4. There are several difficulties with
this argument. First, applicant’s goods are not restricted
as to trade channels, and therefore must be presumed to
travel in all appropriate channels for goods of this type.
Second, even if the identification were so restricted, the
identification in the cited registration is not limited to
supermarkets and drug stores, the typical retail stores
where applicant asserts the registrant’s goods would be
sold. It is common knowledge that vitamins, food
supplements and herbal dietary supplements can be found,
inter alia, in natural or health food stores as well as in
stores devoted to vitamin and nutritional supplements.
The classes of consumers for both applicant’s and
registrant’s goods include the public at large. Although
people purchasing herbal dietary supplements or vitamins
and food supplements may be concerned about their health,
we cannot regard them as sophisticated purchasers. Members
of the general public are not likely to make a careful
Ser. No. 75/159,603
5
analysis of the trademarks of their purchases; rather, if
the marks are very similar, and are used on virtually
identical or closely related products, they will assume
that the products come from the same source.
This brings us to a consideration of the marks. The
cited mark is HEALTHY HAIR in stylized form; applicant’s
mark is HEALTHY HAIR & NAILS. Obviously applicant’s mark
consists of the cited mark, to which the descriptive words
"& NAILS" have been added. The commercial impression of
the marks, however, remains the same. Consumers who are
aware of registrant’s use of its HEALTHY HAIR mark for
vitamins and food supplements and who encounter applicant’s
mark HEALTHY HAIR & NAILS for an herbal dietary supplement
are likely to assume that the latter product is simply an
extension of registrant’s product line, and that HEALTHY
HAIR & NAILS is merely a variation of registrant’s HEALTHY
HAIR mark.
Obviously a major factor in our analysis in this case
is the strength of the marks. The cited mark is registered
and applicant’s mark has been applied for on the
Supplemental Register, and both marks are presumptively
descriptive of the goods. Therefore, we acknowledge that
the cited registration is not entitled to a broad scope of
protection. Nonetheless, applicant’s mark is so similar to
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the registered mark, and the respective goods are closely
related, if not identical, that confusion is likely to
result if applicant’s mark were to be used on a herbal
dietary supplement.
Two other arguments by applicant require comment.
Applicant has pointed out that the cited registration
includes a disclaimer of the words HEALTHY HAIR, and that
this mark is shown in stylized form while applicant’s is
not. With respect to the first point, it is well
established that consumers are not aware of what resides in
the records of the Patent and Trademark Office; while they
presumably would understand HEALTHY HAIR to be a
descriptive term, the words still form part of the mark and
applicant’s mark, which incorporates these words, is likely
to cause confusion with the registrant’s mark. As for the
second point, applicant’s mark is depicted as a typed
drawing; this means that applicant has not limited its
rights to a particular typestyle, and a registration for
this mark could encompass a typestyle similar to the
registered mark.
Finally, we note applicant’s argument that it is
unaware of any instances of actual confusion. Aside from
the facts that we do not know what the registrant’s
experience has been, and that evidence of actual confusion
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is notoriously difficult to obtain, in this case we have no
information regarding the amount or geographic area of
applicant’s or the registrant’s sales, such that we could
ascertain whether there has been an opportunity for
confusion to occur. Thus, we cannot conclude that this
factor weighs in favor of applicant.
Decision: The refusal of registration is affirmed.
R. L. Simms
E. J. Seeherman
H. R. Wendel
Administrative Trademark Judges
Trademark Trial and Appeal Board