TOM MILESv.Five Star Gourmet Foods, Inc.

Trademark Trial and Appeal Board

Mar 15, 2022

91248211 (T.T.A.B. Mar. 15, 2022)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: March 15, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Tom Miles1 v. Five Star Gourmet Foods, Inc. _____ Opposition No. 91248211 _____ Tom Miles, pro se. Nancy Ly of Fish & Richardson P.C. , for Five Star Gourmet Foods, Inc. _____ Before Bergsman, Lynch, and English, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Five Star Gourmet Foods, Inc. (“Applicant”) seeks registration on the Principal Register of the mark ENERGY2GO (in standard characters) for the goods listed below: Fresh or shelf-stable prepared and packaged meals consisting primarily of vegetables, fruits, meats and cheese; fresh or shelf-stable prepared and packaged food 1 Opposer incorrectly identified Real Energy, his dba, as opposer on the ESTTA cover sheet. Accordingly, the USPTO TTABVUE database incorrectly identifies Real Energy as opposer. The TTABVUE has been corrected to identify Tom Miles as Opposer. Opposition No. 91248211 - 2 - snacks consisting primarily of vegetables, fruits, meats and cheese, in International Class 29; and Fresh or shelf-stable prepared and packaged meals consisting primarily of grains; fresh or shelf-stable prepared and packaged food snacks consisting primarily of grains, in International Class 30.2 Tom Miles (“Opposer”) filed a Notice of Opposition against the registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). Opposer claimed ownership of the registered marks listed below: ● Registration No. 4664335 for the mark NRG2GO, in standard characters, for the goods listed below: Dietary and nutritional supplements for endurance sports; nutritional supplements in the form of food powder, namely, powdered or granulated nutritional food supplements adapted for medical use by promoting improved digestion, physical endurance, boosting energy, weight loss, and overall health, in International Class 5;3 and ● Registration No. 4679395 for the mark ENERGY 2 BURN, in standard characters, for the goods listed below: Dietary and nutritional supplements for endurance sports; food supplements; nutritional supplements for boosting energy and promoting overall health; nutritional supplements in the form of food powder, namely, powdered or granulated nutritional food supplements adapted for medical use by promoting improved digestion, physical endurance, boosting energy, weight loss, and overall health, in International Class 5.4 2 Serial No. 88034195 was filed on July 11, 2018, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s bona fide intention to use the mark in commerce. 3 Registered December 30, 2014; Sections 8 and 15 declarations accepted and acknowledged. 4 Registered January 27, 2015; Sections 8 and 15 declarations accepted and acknowledged. Opposition No. 91248211 - 3 - Opposer disclaimed the exclusive right to use the word “Energy.” Applicant, in its Answer, denied the salient allegations of the Notice of Opposition. Citations to the record and briefs reference TTABVUE, the Board’s online docket system. See, e.g., New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596, at *2 n.1 (TTAB 2020). I. The Record The record includes the pleadings, and pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), Applicant’s application. The parties introduced the testimony listed below: A. Opposer’s testimony and evidence. 1. Opposer attached copies of his pleaded registrations as exhibits to his Notice of Opposition printed from the USPTO Trademark Status and Document Retrieval (TSDR) system showing the current status of and title to the registrations.5 Pursuant to Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1), Opposer’s pleaded registrations are of record; and 2. Testimony declaration of Opposer.6 B. Applicant’s testimony and evidence. 1. Notice of reliance on copies of third-party registrations incorporating the terms (i) “Energy,” (ii) “to go,” or (iii) “Burn” for dietary, nutritional, or 5 1 TTABVUE 13-19. 6 29 TTABVUE. Opposition No. 91248211 - 4 - food supplements, and food;7 2. Notice of reliance on Internet documents purportedly showing the use of the terms “energy to go” or “energy” in connection with dietary, nutritional, or food supplements;8 3. Notice of reliance on Opposer’s response to an office action in his application for Registration No. 4664335 for the mark NRG2GO;9 4. Notice of reliance on definitions of the terms “meal,” “food,” “snack,” “dietary supplement,” “food supplement,” and “nutritional supplement”;10 5. Notice of reliance on a copy of Applicant’s website;11 6. Notice of reliance on a copy of Applicant’s Twitter social media webpage;12 7. Notice of reliance on a copy of Applicant’s Facebook social media webpage;13 7 38-40 TTABVUE. 8 41 TTABVUE. 9 42 TTABVUE. 10 43 TTABVUE 6-27. 11 43 TTABVUE 29-39. 12 43 TTABVUE 41-46. 13 43 TTABVUE 47-51. Opposition No. 91248211 - 5 - 8. Notice of reliance on an excerpt from an abc7 article titled “LAUSD needs parents to apply for ‘More than a Meal’ program” dated October 12, 2015;14 9. Notice of reliance on a copy of a Refrigerated & Frozen Foods’ article titled “FiveStar Gourmet Foods Helping with Hunger Relief for COVID- 19 Pandemic” dated March 31, 2020;15 10. Testimony declaration of Tal Shoshan, Applicant’s Chief Executive Officer;16 and 11. Notice of reliance on Opposer’s responses to Applicant’s request for production of documents.17 14 43 TTABVUE 53-54. 15 43 TTABVUE 56-58. 16 45 TTABVUE. The Board posted the portions of the Shoshan declaration designated confidential at 44 TTABVUE. 17 46 TTABVUE. Generally, responses to a request for production of documents introduced through a notice of reliance are admissible solely for purposes of showing that a party has stated that there are no responsive documents; documents produced in response to the requests are generally not admissible by notice of reliance alone. Trademark Rule 2.120(j)(3)(ii), 37 C.F.R. § 2.120(j)(3)(ii); see also City Nat’l Bank v. OPGI Mgmt. GP Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1674 n.10 (TTAB 2013) (responses to document production requests are admissible solely for purposes of showing that a party has stated that there are no responsive documents); ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d 1036 n.7 (TTAB 2012) (written responses to document requests indicating that no documents exist may be submitted by notice of reliance). Accordingly, we consider Opposer’s responses only for the limited purpose of showing that Opposer did not have any responsive documents. Opposition No. 91248211 - 6 - II. Entitlement to a Statutory Cause of Action.18 Entitlement to a statutory cause of action, formerly referred to as “standing” by the Federal Circuit and the Board, is an element of the plaintiff’s case in every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277 (Fed. Cir. 2020), cert. denied, 141 S. Ct. 2671 (2021); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 (Fed. Cir. 2020), reh’g en banc denied, 981 F.3d 1083, 2020 USPQ2d 11438 (Fed. Cir. 2020), cert. denied, 142 S. Ct. 82 (2021); Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). To establish entitlement to a statutory cause of action, a plaintiff must demonstrate: (i) an interest falling within the zone of interests protected by the statute and (ii) a reasonable belief in damage proximately caused by the registration of the mark. Corcamore, 2020 USPQ2d 11277 at *4. See also Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (TTAB 1982); Spanishtown Enters., 2020 USPQ2d 11388, at *1. Opposer introduced copies of his pleaded registrations printed from the USPTO TSDR system showing the current status of and title to the registrations.19 Because Opposer has properly introduced into evidence copies of his pleaded registrations 18 Even though we now refer to standing as entitlement to a statutory cause of action, our prior decisions and those of the Federal Circuit interpreting “standing” under §§ 1063 and 1064 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020 USPQ2d 11388, at *2 (TTAB 2020). 19 1 TTABVUE 13-19. Opposition No. 91248211 - 7 - showing the status and title thereof, Opposer has established his entitlement to a Section 2(d)-based opposition that is not without merit. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000) (opposer’s two prior registrations suffice to establish its direct commercial interest and its standing); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1032 (TTAB 2016) (standing established based on pleaded registration made of record). III. Priority These same pleaded registrations, which Applicant has not counterclaimed to cancel, establish that priority is not an issue as to the marks and the goods covered by the registrations. See Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1469 (TTAB 2016) (citing King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d. 1400, 182 USPQ 108, 110 (CCPA 1974)). IV. Likelihood of Confusion We base our determination under Section 2(d) on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the 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, referred to as “DuPont factors”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “In discharging this duty, the thirteen DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, Opposition No. 91248211 - 8 - 1162 (Fed. Cir. 2019) (quoting In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) and DuPont, 177 USPQ at 567). “Not all DuPont factors are relevant in each case, and the weight afforded to each factor depends on the circumstances. Any single factor may control a particular case.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 2020 USPQ2d 10341, at *3 (Fed. Cir. 2020) (citing Dixie Rests., 41 USPQ2d at 1533). “Two key factors in every Section 2(d) case are the first two factors regarding the similarity or dissimilarity of the marks and the goods or services, because 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.’” In re Embiid, 2021 USPQ2d 577, at *10 (TTAB 2021) (quoting Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)); In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004). See also In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). We focus our likelihood of confusion analysis on Opposer’s NRG2GO registration because the mark is the closest to Applicant’s mark and the goods are comparable to those in Opposer’s other pleaded registration. In other words, if confusion is not likely between Applicant’s mark ENERGY2GO and Opposer’s mark NRG2GO, it would not Opposition No. 91248211 - 9 - be likely with respect to Opposer’s mark ENERGY 2 BURN. See Fiserv, Inc. v. Elec. Transaction Sys. Corp., 113 USPQ2d 1913, 1917 (TTAB 2015). The evidence regarding the strength of Opposer’s mark ENERGY 2 BURN would not change our findings of fact regarding likelihood of confusion or otherwise change our decision. A. The strength of Opposer’s marks. The fifth DuPont factor enables Opposer to expand the scope of protection afforded its pleaded mark by adducing evidence of “[t]he fame of the prior mark (sales, advertising, length of use),” while the sixth DuPont factor allows Applicant to contract that scope of protection by adducing evidence of “[t]he number and nature of similar marks in use on similar goods.” DuPont, 177 USPQ at 567. To determine a mark’s strength, we consider its inherent strength, based on the nature of the mark itself, and its commercial strength, based on its marketplace recognition. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength.”); Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1345 (TTAB 2017); Top Tobacco, L.P. v. N. Atl. Operating Co., Inc., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (the strength of a mark is determined by assessing its inherent strength and its commercial strength); Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006) (market strength is the extent to which the relevant public recognizes a mark as denoting a single source); 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:80 (5th ed. March 2021 update) (“The first enquiry is for conceptual strength and focuses on Opposition No. 91248211 - 10 - the inherent potential of the term at the time of its first use. The second evaluates the actual customer recognition value of the mark at the time registration is sought or at the time the mark is asserted in litigation to prevent another’s use.”). 1. The inherent or conceptual strength of Opposer’s mark. Opposer’s mark NRG2GO when used in connection with dietary and nutritional supplements suggests the benefit of taking the supplements (i.e., healthful, energizing effects or ready/extra energy). We note that when prosecuting the underlying application for his pleaded registration, Opposer stated that “NRG2GO means that the product or goods of applicant are food products that can be easily taken on the go to be eaten later.”20 Accordingly, we find Opposer’s mark is suggestive. 2. The commercial strength of Opposer’s marks. Opposer’s testimony regarding his sales of NRG2GO and ENERGY 2 BURN supplements is unclear and hard to follow.21 However, Opposer provided the chart reproduced below identifying sales under the NRG2GO and ENERGY 2 BURN marks: 20 42 TTABVUE 8. 21 Opposer’s Testimony Decl. ¶¶ 13-18. Opposition No. 91248211 - 11 - According to Opposer’s calculations from November 13, 2013 through July 2020, Opposer averaged $3,600 in yearly sales for NR2GO supplements and $3,591 in yearly sales of ENERGY 2 BURN supplements. Opposer did not introduce any testimony regarding his advertising expenditures. Applicant introduced 262 copies of third-party registrations consisting of some combination of variations of “energy,” “to go,” or “burn.”22 That list of third-party registrations did not include any registration including a variation of NRG2GO or ENERGY 2 BURN. Applicant introduced seven copies of webpages showing variations of “Energy To Go” used to advertise or identify nutritional supplements.23 We reproduce below illustrative excerpts from the webpages: 22 38-40 TTABVUE. 23 41 TTABVUE 7-37. Opposition No. 91248211 - 12 - 24 25 24 41 TTABVUE 7. 25 41 TTABVUE 12. Opposition No. 91248211 - 13 - 26 Because Opposer’s sales are de minimis, Opposer did not testify about its advertising, and there is third-party use of variations of “Energy To Go,” we find that Opposer’s NRG2GO is commercially weak. In sum, because Opposer’s mark NRG2GO is suggestive and commercially weak, we find that Opposer’s NRG2GO mark is entitled to a narrow scope of protection or exclusivity of use. B. The similarity or dissimilarity of the marks. We now turn to the DuPont factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these elements may 26 41 TTABVUE 24. Opposition No. 91248211 - 14 - be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). We are mindful that “[t]he proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)). The parties’ marks “must be considered … in light of the fallibility of memory ….” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1 (CCPA 1977)). Therefore, the focus is on the recollection of the average purchaser, here, consumers of dietary and nutritional supplements and consumers of prepared meals and snacks consisting of vegetables, fruits, meats, cheese, and grains, and these consumers normally retain a general rather than a specific impression of trademarks. In re Assoc. of the U.S. Army, 85 USPQ2d 1264, 1268 (TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Opposition No. 91248211 - 15 - Finally, we keep in mind that “[s]imilarity is not a binary factor but is a matter of degree.” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1062 (Fed. Cir. 2003)). Applicant is seeking to register the mark ENERGY2GO and the mark in Opposer’s pleaded registration is NRG2GO. ENERGY2GO and NRG2GO are phonetically identical. In addition, they have the same meaning and engender the same commercial impression (i.e., readily accessible energy or portable energy). The marks also look similar. While they have some visual difference in the spelling of “ENERGY” versus “NRG,” that difference is not enough to distinguish the marks. Consumers familiar with Opposer’s NRG2GO supplements encountering Applicant’s ENERGY2GO prepared meals or snacks may mistakenly believe that Applicant’s prepared meals or snacks are a new line of the NRG2GO supplements because of the overall similarity of the marks. Consumers may also perceive NRG2GO to be a marketing scheme to present the term “Energy To Go” in a unique or creative manner. Applicant argues that the differences in the marks “are further evident in how they appear in the marketplace” comparing Applicant’s packaging with Opposer’s packaging.27 There are two problems with this argument. First, both the mark in the opposed application and pleaded registration are in standard character form. Marks presented in standard characters are not limited to any particular depiction. The 27 Applicant’s Brief, pp. 11-12 (51 TTABVUE 15-16). Opposition No. 91248211 - 16 - rights associated with a mark in standard characters reside in the wording, and not in any particular display. Thus, Applicant seeks registration of a mark that might be depicted in any manner, regardless of the font style, size, or color, and might at any time in the future be displayed in a manner similar to Opposer’s mark. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909-11 (Fed. Cir. 2012); Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (rejecting argument that for purposes of determining whether two marks are similar, a mark in a typed drawing (equivalent to modern standard character format) is distinct from such mark in a logo format; “[b]y presenting its mark in a typed drawing, a difference cannot legally be asserted by that party” (emphasis in original)). Second, a distinction in accompanying trade dress cannot weigh against likelihood of confusion with respect to the registration of a word mark like ENERGY2GO. The reason is that such dress might well be changed at any time when only the word mark itself is registered. Kimberly Clark Corp. v. H. Douglas Enters., Ltd., 774 F.2d 1144, 1147, 227 USPQ 541, 543 (Fed. Cir. 1985). As the Court of Appeals for the Federal Circuit has stated: Ordinarily, for a word mark we do not look to the trade dress, which can be changed at any time. Vornado, Inc. v. Breuer Electric Mfg. Co., 390 F.2d 724, 156 USPQ 340, 342 (CCPA 1968). But the trade dress may nevertheless provide evidence of whether the word mark projects a confusingly similar commercial impression. Opposition No. 91248211 - 17 - Kenner Parker Toys Inc. v. Rose Art Indus. Inc., 963 F.2d 350, 22 USPQ2d 1453, 1458 (Fed. Cir. 1992). See Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 223 USPQ 1281, 1284 (Fed. Cir. 1984). We find that Applicant’s mark ENERGY2GO and Opposer’s mark NRG2GO are similar in their entireties in terms of sound, connotation and commercial impression. C. The similarity or dissimilarity of the goods. As noted above, Applicant is seeking to register its mark for prepared meals and snacks consisting of vegetables, fruits, meats, cheese, and grains while Opposer’s marks are registered for dietary and nutritional supplements. To prove that his dietary and nutritional supplements are related to Applicant’s prepared meals and snacks, Opposer introduced copies of numerous third-party registrations for goods in International Class 5 and International Classes 29 or 30.28 Third-party registrations that cover a number of different goods may serve to suggest that the goods are of a type that may emanate from a single source, if the registrations are based on use in 28 Opposer’s Testimony Decl. ¶ 12 and Exhibit D (29 TTABVUE 4 and 29-95). We do not consider applications because pending applications are evidence only that the applications were filed on a certain date; they are not evidence of use of the marks. In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1270 n.8 (TTAB 2009); In re Fiesta Palms LLC, 85 USPQ2d 1360, 1366 n.7 (TTAB 2007); Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007). See 29 TTABVUE 46, 70, and 84. We do not consider cancelled registrations because a cancelled or expired registration has no probative value other than to show that it once issued and it is not entitled to any of the statutory presumptions of Section 7(b) of the Trademark Act. In Re Ginc UK Ltd., 90 USPQ2d 1472, 1480 (TTAB 2007). See also Action Temporary Servs. Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989) (“a cancelled registration does not provide constructive notice of anything.”); In re Hunter Publ’g Co., 204 USPQ 957, 963 (TTAB 1979) (cancellation “destroys the Section [7(b)] presumptions and makes the question of registrability ‘a new ball game’ which must be predicated on current thought.”). See 29 TTABVUE 67. Opposition No. 91248211 - 18 - commerce.29 In re Country Oven, Inc., 2019 USPQ2d 443903, at *8 (TTAB 2019); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB), aff’d per curiam, 864 F.2d 149 (Fed. Cir. 1988). However, International Classification is not probative as to whether the goods at issue are related. The classification of goods and services by the USPTO is a purely administrative determination and has no bearing on the issue of likelihood of confusion. Jean Patou Inc. v. Theon Inc., 9 F.3d 971, 29 USPQ2d 1771, 1773 (Fed. Cir. 1993); Nat’l Football League v. Jasper Alliance Corp., 16 USPQ2d 1212, 1216 n.5 (TTAB 1990). See also Trademark Rule 2.85(f), 37 CFR § 2.85(f) (“Classification schedules shall not limit or extend the applicant’s rights.”). The critical fact is whether the goods in the third-party registrations are the same or related to the goods at issue. See Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1694 (Fed. Cir. 2018) (error to rely on third-party evidence of similar marks for dissimilar goods, as Board must focus “on goods shown to be similar”); In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017) (disregarding third-party registrations for other types of goods where the proffering party had neither proven nor explained that they were related to the goods in the 29 We do not consider Registration Nos. 5326338, 4553892, 5510287, 5847589, and 5445488 because they were registered as a request for extension of protection of an International Registration under Section 66(a) of the Trademark Act, 15 U.S.C. § 1141f, not use in commerce. 29 TTABVUE 64, 74, 87, 91, and 93. We do not consider Registration No. 4527643 because it was registered under Section 44(e) of the Trademark Act, 15 U.S.C. § 1126(e), and not use in commerce. 29 TTABVUE 76. Opposition No. 91248211 - 19 - cited registration); TAO Licensing, LLC v. Bender Consulting Ltd., 125 U.S.P.Q.2d 1043, 1058 (TTAB 2017) (third party registrations in unrelated fields “have no bearing on the strength of the term in the context relevant to this case.”). We list below the third-party registrations for marks registered for goods that are related to the goods at issue: Mark Reg. No. Goods FITAID 5037738 Dietary and nutritional supplements; Fruit and vegetable purees FIT & ACTIVE 4071947 Nutritional energy bars for use as a meal substitute; Nutrient-dense snack bars; Ready to eat cereal derived food bars FIT & ACTIVE 4809754 Nutritional supplement shakes; Frozen entrees consisting of meat, fish, poultry or vegetables; Frozen entrees consisting of pasta or rice SUNFIT 3107520 Nutritional supplements; Freeze dried fruits, processed fruits, dried fruits, processed vegetables, processed edible seeds, processed nuts and blends of processed fruits which contain herbs FIT & LEAN 5055443 Nutritional and dietary supplements; Pudding30 FIT COFFEE 5487225 Dietary and nutritional supplements made of coffee; Coffee based beverages FIT STARS 4527643 Nutritional food bars for use as a meal replacement, nutritional and dietary supplements formed and packaged as bars, and nutritional energy bars for use as a meal substitute Protein based, nutrient-dense snack bars, nut and seed-based snack bars, and organic nut and seed- based snack bars FIT DINOSAUR 52183607 Dietary and nutritional supplements; Rice-based snack foods; IDEALFIT 5346723 Nutritional, dietary and weight loss supplements; 30 Registration No. 4425492 for the mark FIT & LEAN is for virtually identical goods (29 TTABVUE 49), so we only count it once. Opposition No. 91248211 - 20 - Mark Reg. No. Goods Ready to eat nutritional grain-based food bars; IT FITS 5477024 Nutritional supplement energy bars; High-protein cereal bars; granola-based snack bars The third-party registrations show that dietary and nutritional supplements and different food products, including the types in the opposed application, may emanate from the same source. Applicant argues that its “fresh or self-stable prepared and packaged meals and snacks consisting primarily of vegetables, fruits, meats, cheese, and/or grains” and Opposer’s dietary and nutritional supplements “are discernably different.”31 However, the issue is not whether purchasers would confuse the parties’ goods, but rather whether there is a likelihood of confusion as to the source of these goods. See Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven if the goods in question are different from, and thus not related to, one another in kind, the same goods can be related in the mind of the consuming public as to the origin of the goods.”); In re I-Coat Co., LLC, 126 USPQ2d 1730, 1737 (TTAB 2018) (“the test is not whether consumers would be likely to confuse these goods, but rather whether they would be likely to be confused as to their source.”); Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989). The unrebutted third-party registration evidence shows that Applicant’s “fresh or self-stable prepared and packaged meals and snacks consisting primarily of vegetables, fruits, meats, cheese, and/or grains” and Opposer’s dietary and 31 Applicant’s Brief, p. 13 (51 TTABVUE 17). Opposition No. 91248211 - 21 - nutritional supplements may emanate from the same source. Accordingly, we find that the parties’ goods are related. D. Established, likely-to-continue channels of trade and classes of consumers. Opposer testified that he sells his dietary and nutritional products through his website (realenergyfuel.com), his clinic in Malvern, Pennsylvania, and unidentified “physical store locations.”32 Applicant’s Chief Executive Officer testified that Applicant sells its products to retailers, grocery stores, and food service providers such as schools. Retailers include Walmart, Costco, Target, Publix, and Aldi.33 Applicant also promotes its products through its website (fivestargourmetfoods.com) and its social media webpages.34 Because there are no restrictions or limitations in the parties’ description of goods regarding their channels of trade and classes of consumers, we presume that goods move in all channels of trade that would be normal for such goods, and that they would be purchased by all potential customers. See Citigroup Inc. v. Capital City Bank Grp. Inc., 98 USPQ2d at 1261; CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983); Paula Payne Prods. Co. v. Johnson Publ’g Co., 473 F.2d 32 Opposer’s Testimony Decl. ¶¶ 13 and 16 and Exhibit L (29 TTABVUE 5, 6 and 151-196). 33 Shoshan Testimony Decl. ¶ 21 (44 and 45 TTABVUE 8). Applicant designated as confidential the names of its retail customers. However, because Applicant’s goods are sold to the public through these retailers, we fail to see how the names of Applicant’s retail customers are confidential. Accordingly, we do not treat this testimony as being confidential. See Trademark Rule 2.116(g), 37 C.F.R. § 2.116(g) (“The Board may treat as not confidential that material which cannot reasonably be considered confidential, notwithstanding a designation as such by a party.”). 34 Shoshan Testimony Decl. ¶ 26 (45 TTABVUE 9). Opposition No. 91248211 - 22 - 901, 177 USPQ 76, 77 (CCPA 1973). However, there is no testimony or other evidence, except for the testimony discussed above, regarding the channels of trade that would be normal for the goods at issue. We find that Opposer failed to meet its burden of proving that the goods of the parties are offered in the same channels of trade to the same classes of consumers. E. The length of time during and conditions under which there has been concurrent use of the marks without any evidence of actual confusion. Applicant has been selling its prepared meals and snacks under the mark ENERGY2GO since 2013.35 Opposer registered its NRG2GO mark on December 30, 2014, based on an underlying application filed March 21, 2013, claiming a date of first use anywhere and in commerce as of April 10, 2014. As discussed above, Opposer testified about his sales since November 2013. Thus, purportedly there has been approximately ten years of concurrent use without any reported instances of confusion.36 The absence of any reported instances of confusion is meaningful only if the record indicates appreciable and continuous use by Applicant of its mark for a significant period of time in the same markets as those served by Opposer under its mark. Citigroup Inc. v. Capital City Bank Grp., Inc., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011); Gillette Canada Inc. v. Ranir 35 Shoshan Testimony Decl. ¶ 19 (45 TTABVUE 7). 36 Opposer did not testify about any reported instances of confusion and Applicant’s witness testified that he is unaware of any reported instances of confusion. Shoshan Testimony Decl. ¶ 32 (45 TTABVUE 10). Opposition No. 91248211 - 23 - Corp., 23 USPQ2d 1768, 1774 (TTAB 1992) (“[E]vidence thereof is notoriously difficult to come by and, in any event, the test under Section 2(d) of the Trademark Act is likelihood of confusion rather than actual confusion.”). In other words, for the absence of actual confusion to be probative, there must have been a reasonable opportunity for confusion to occur. Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the probative value of the absence of actual confusion depends upon there being a significant opportunity for actual confusion to have occurred); Red Carpet Corp. v. Johnstown Am. Enters. Inc., 7 USPQ2d 1404, 1406- 1407 (TTAB 1988); Central Soya Co., Inc. v. N. Am. Plant Breeders, 212 USPQ 37, 48 (TTAB 1981) (“[T]he absence of actual confusion over a reasonable period of time might well suggest that the likelihood of confusion is only a remote possibility with little probability of occurring.”). The eighth DuPont factor - “[t]he length of time during and conditions under which there has been concurrent use without evidence of actual confusion,” DuPont, 177 USPQ at 567, is unlike other DuPont factors because it requires us to look at actual market conditions, to the extent there is evidence of such conditions of record, and not merely the identifications of goods in the involved application and registration. In this regard, we consider all of the evidence of record that may be relevant to the eighth DuPont factor. In re Guild Mortg. Co., 2020 USPQ2d 10279, at *6 (TTAB 2020). As noted above, Opposer did not testify about the extent of his advertising, his sales have been de minimis, and his sales are limited to his website, his health clinic, Opposition No. 91248211 - 24 - and unidentified physical locations. Accordingly, there is insufficient testimony and evidence to determine whether there has been a reasonable opportunity for confusion to occur. Accordingly, we find that this DuPont factor is neutral. F. Conclusion. Despite Opposer’s failure to prove the established, likely-to-continue channels of trade and classes of consumers are similar, because the marks are so similar and the goods are related, we find that Applicant’s mark ENERGY2GO for prepared meals and snacks consisting of vegetables, fruits, meats, cheese, and grains is likely to cause confusion with Opposer’s mark NRG2GO for dietary and nutritional supplements. Decision: We sustain the opposition and refuse to register Applicant’s mark.