Ortho-Nutra, LLC

This Opinion is Not a
Precedent of the TTAB

Mailed: July 25, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Ortho-Nutra, LLC
_____

Serial No. 87482673
_____

Jonathan Manfre and Paul Grandinetti of Collins Gann McCloskey & Barry PLLC,
for Ortho-Nutra, LLC.

Ronald McMorrow, Trademark Examining Attorney, Law Office 118,
Michael W. Baird, Managing Attorney.

_____

Before Kuczma, Larkin, and Dunn,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:

Ortho-Nutra, LLC (“Applicant”) seeks registration on the Principal Register of the

mark DYNAMINE in standard characters for “dietary and nutritional supplements,”

in International Class 5.1

1 Application Serial No. 87482673 was filed by NovaNutra, LLC on June 9, 2017 under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on NovaNutra, LLC’s allegation
of a bona fide intention to use the mark in commerce. Following the completion of briefing on
this appeal, the application was assigned to Ortho-Nutra, LLC under an assignment recorded
in the United States Patent and Trademark Office (“USPTO”) on April 1, 2019 under
Reel/Frame 6626/0149. Ex parte examination of the validity of the assignment of an intent-
to-use application takes place in narrow circumstances that are not present here. See
TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) Section 501.01(a) (Oct. 2018). In
Serial No. 87482673

The Trademark Examining Attorney refused registration of Applicant’s mark

under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on that ground that it

so resembles the typed mark DYNO-MINS shown in Registration No. 1456058 for a

“dietary food supplement”2 as to be likely, when used on or in connection with the

goods identified in the application, to cause confusion, to cause mistake, or to deceive.

When the refusal was made final, Applicant appealed and requested

reconsideration, 9-13 TTABVUE,3 which was denied. 15 TTABVUE. The appeal is

fully briefed. We affirm the refusal to register.

I. Evidentiary Matter

Before turning to the merits of the appeal, we address an evidentiary matter

resulting from Applicant’s attachment to its reply brief of a Wikipedia entry

regarding the dynamine genus of South American butterflies. 20 TTABVUE 4-6

(Exhibit 418). Applicant cites this entry in support of a new argument that “[t]he

word ‘dynamine’ is the name for butterflies found in South America” and that the

“average member of the public and the relevant consumer upon viewing the word

view of the assignment, we will refer to both NovaNutra, LLC and Ortho-Nutra, LLC as
“Applicant.”
2 The cited registration issued on September 8, 1987 and was last renewed in 2017.

3 Citations in this opinion to the briefs and the Request for Reconsideration refer to
TTABVUE, the Board’s online docketing system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473,
1476 n.6 (TTAB 2014). Specifically, the number preceding TTABVUE corresponds to the
docket entry number, and any numbers following TTABVUE refer to the page number(s) of
the docket entry where the cited materials appear.

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Serial No. 87482673

‘dynamine’ will understand the word to be a name for butterflies and will not

associate the mark with the cited mark ‘DYNO-MINS.’” Id. at 2.4

The Wikipedia evidence was not made of record during prosecution, and we

exclude it because it is untimely.5 See generally Trademark Rule 2.142(d), 37 C.F.R.

§ 2.142(d); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”)

Section 1203.02(e) (June 2019) and cases cited therein. We have given no

consideration to this material and Applicant’s related arguments in its reply brief.

See In re Luxuria, s.r.o., 100 USPQ2d 1146, 1147-48 (TTAB 2011) (untimely materials

attached to reply brief excluded and “because even a cursory review of the reply brief

indicates that the brief discusses this material at length, applicant’s reply brief has

not been considered”).

II. Record on Appeal

The record on appeal consists of the following, all of which were made of record by

Applicant:

1. A page from the website of the owner of the cited registration;6

4 Applicant made an unsupported variant of this argument in its main brief, in which it
claimed that “‘DYNA’ means ‘power’ and ‘is used in the formation of compound words’,” and
“is also a type of butterfly, so there are two distinct definitions of the word.” 17 TTABVUE 9.
Applicant cited a dictionary definition of “dyna” in support of the first claimed meaning, but
pointed to nothing to support the second. Id.
5We act sua sponte because the evidence was attached to Applicant’s reply brief, and the
Examining Attorney thus had no opportunity to address it.
6 January 31, 2018 Response to Office Action at TSDR 7. All citations in this opinion to the
application record are to pages in the USPTO’s Trademark Status & Document Retrieval
(“TSDR”) database.

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Serial No. 87482673

2. Pages from the USPTO’s Trademark Electronic Search System (“TESS”)

and TSDR databases regarding third-party registrations of marks

containing “DYNO” or “DYNA;”7

3. Dictionary definitions of the words or particles “min,” “dyna,” “mine,” and

“dynamite;”8

4. Pages from the TSDR database regarding third-party registrations of

marks containing “MINE;”9 and

5. Pages from the TSDR database regarding third-party registrations of

marks containing “MIN” or “MINS.”10

III. Analysis of Likelihood of Confusion Refusal

Section 2(d) of the Trademark Act prohibits registration of a mark that so

resembles a registered mark as to be likely, when used on or in connection with the

goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.

§ 1052(d). Our determination of likelihood of confusion under § 2(d) is based on an

analysis of all probative facts in the record that are relevant to the likelihood of

confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177

7August 9, 2018 Request for Reconsideration (9 TTABVUE 67-85; 95-330; 10 TTABVUE 1-
268). Applicant attached copies of the DYNO registrations to its main brief, 17 TTABVUE
23-40, along with other materials, id. at 41-48, 52-70, including printouts from the TESS
database that appear to list other registrations that Applicant previously made of record. Id.
at 49-51, 71-76. It was unnecessary and distracting for Applicant to resubmit copies of
materials already in the record. See In re Michalko, 110 USPQ2d 1949, 1950 (TTAB 2014).
8 9 TTABVUE 86-94; 10 TTABVUE 269-290.
9 10 TTABVUE 291-300; 11 TTABVUE 1-300; 12 TTABVUE 1-51.
10 12 TTABVUE 52-300; 13 TTABVUE 1-168.

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Serial No. 87482673

USPQ 563, 567 (CCPA 1973). We consider each DuPont factor for which there is

evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d

1160, 1162-63 (Fed. Cir. 2019).

Two key factors in every § 2(d) case are 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 [or services] and differences in the marks.” Federated Foods, Inc. v. Fort

Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). Both Applicant

and the Examining Attorney address these key factors, 17 TTABVUE 5-16; 19

TTABVUE 3-7, as well as the third DuPont factor, the similarity or dissimilarity of

the pertinent channels of trade, 17 TTABVUE 16-18; 19 TTABVUE 4, and the fourth

DuPont factor, the conditions under which and buyers to whom sales are made. 17

TTABVUE 18-19; 19 TTABVUE 4. Applicant also discusses various third-party

registrations, which appear to relate to the sixth DuPont factor, the number and

nature of similar marks in use on similar services.

A. Similarity or Dissimilarity of the Goods and Channels of Trade

The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature

of the goods or services as described in an application or registration,’” In re Detroit

Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting

DuPont, 177 USPQ at 567), while the third DuPont factor “considers ‘[t]he similarity

or dissimilarity of established, likely-to-continue trade channels.’” Id. at 1052

(quoting DuPont, 177 USPQ at 567). Our analysis under these factors is based on the

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Serial No. 87482673

identifications of services in the application and cited registration. Id.; Stone Lion

Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-

63 (Fed. Cir. 2014).

The goods in the application are identified as “dietary and nutritional

supplements,” while the goods in the cited registration are identified as a “dietary

food supplement.” Where, as here, “the goods in the application at issue and/or in the

cited registration are broadly identified as to their nature and type,” it is presumed

that they encompass “all the goods of the nature and type described therein . . . .” In

re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006). The more general

identification “dietary and nutritional supplements” in the application encompasses

the more specific identification “dietary food supplement” in the cited registration

because a “dietary food supplement” is a type of “dietary and nutritional supplement.”

The goods are thus legally identical. See, e.g., In re Hughes Furniture Indus., Inc., 114

USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of

‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and

commercial furniture”); Jump Designs, 80 USPQ2d at 1374. The second DuPont

factor supports a finding of a likelihood of confusion.11

11 Applicant argues that “the goods represented by the marks are highly distinct,” 17
TTABVUE 15, because its mark “represents a powdered ingredient that will be used solely
in the manufacture of dietary supplements,” id., while a screenshot from the registrant’s
website shows that the cited mark is used for “finished dietary supplements in the form of
vitamins and minerals.” Id. at 16. This argument is unavailing. The “dietary and nutritional
supplements” identified in the application are not restricted to “a powdered ingredient that
will be used solely in the manufacture of dietary supplements,” id. at 15, and neither
identification can be restricted based on argument of counsel or proof of actual use of the
subject marks. See, e.g., In re Thor Tech., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have no
authority to read any restrictions or limitations into the registrant’s description of goods”);

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Serial No. 87482673

With respect to the third DuPont factor, “‘[i]t is well established that absent

restrictions in the application and registration, [identical] goods and services are

presumed to travel in the same channels of trade to the same classes of purchasers.’”

Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018)

(quoting In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)).

No restrictions appear in the identifications here and the goods are legally identical,

“and therefore this presumption attaches,” id., and we must deem the channels of

trade and classes of consumers to be identical as well.12 The third DuPont factor also

supports a finding of a likelihood of confusion.

In re La Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008) (“applicant’s reliance on
registrant’s website in an attempt to restrict the scope of registrant’s goods is to no avail”
because “an applicant may not restrict the scope of the goods covered in the cited registration
by argument or extrinsic evidence”); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764
(TTAB 1986) (an applicant cannot “restrict the scope of its goods in its application and the
scope of the goods covered in the cited registration by extrinsic argument and evidence while
neither the recitation of goods in applicant’s application nor the recitation of goods in the
cited registration is so restricted”).
12Applicant argues that “‘[b]ecause of the differences in the channels of trade and customers
for applicant’s and the registrant’s goods, there is virtually no opportunity for confusion to
arise.’” 17 TTABVUE 16 (quoting In re HerbalScience Grp. LLC, 96 USPQ2d 1321, 1324
(TTAB 2010)). Applicant claims that its goods are purchased “through a complex trade
channel” by dietary supplement manufacturers who must first go to Applicant’s website and
then engage in contract negotiations with Applicant prior to purchase, 17 TTABVUE 17,
while the registrant’s goods “are sold directly to consumers via the internet, by clicking on
the purchase tab on the website, or in vitamin/supplement stores.” Id. These arguments are
also unavailing. As noted above, the “dietary and nutritional supplements” identified in the
application are not limited to supplements “for use in the manufacture” of other goods in the
manner in which the identification of the applicant’s goods was expressly limited in
HerbalScience. 96 USPQ2d at 1322. In the absence of such a limitation, we must assume that
the “dietary and nutritional supplements” identified in the application and the “dietary food
supplement” identified in the cited registration “travel in the same channels of trade” and
“that the same classes of purchasers buy these goods.” Jump Designs, 80 USPQ2d at 1374.

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Serial No. 87482673

B. Third-Party Registrations and the Sixth DuPont Factor

Applicant’s arguments under the first DuPont factor are based in part on its claim

that elements of the involved marks are familiar to consumers, and distinguishable

by them when those elements appear in the respective marks, because of the

existence of third-party marks “beginning with the element ‘DYNO’ in International

Class 005,” and “beginning with the element ‘DYNA’ in International Class 005,” 17

TTABVUE 8, and third-party marks showing that “members of the consuming public

are very familiar with goods in International Class 005 wherein the mark is either a

‘mins’ or a ‘mine’ and would understand that these are different elements and not

merely the singular or plural version of each other.” Id. at 9. Accordingly, before

analyzing the first DuPont factor, we will assess the impact, if any, of the third-party

registrations of these marks under the sixth DuPont factor. See, e.g., In re Inn at St.

John’s, LLC, 126 USPQ2d 1742, 1745-46 (TTAB 2018) (discussing third-party

registrations under sixth DuPont factor before assessing the similarity of the marks).

The sixth DuPont factor considers “[t]he number and nature of similar marks in

use on similar goods.” DuPont, 177 USPQ at 567. Applicant made of record several

third-party registrations of DYNO- prefix formative marks, 9 TTABVUE 68-72, 73-

76, 82-85, and numerous third-party registrations of DYNA formative marks, for

dietary or nutritional supplements. 9 TTABVUE 100-103, 121-126, 178-181, 209-214,

224-228, 246-250, 288-293; 10 TTABVUE 26-30, 35-37, 193-197, and 232-234.13

13Applicant also made of record a number of registrations of DYNO and DYNA formative
marks for other goods in Class 5, such as deodorizers, pesticides, insecticides, medical devices
and equipment, sleep aids, dietary supplements for animals, pharmaceutical and veterinary
preparations, and dental materials. 9 TTABVUE 77-81, 113-116, 137-146, 151-159, 182-185,

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Serial No. 87482673

Applicant also made of record a number of third-party registrations of -MINE suffix

formative marks, 10 TTABVUE 291-300; 11 TTABVUE 1-300; 12 TTABVUE 1-51,

and -MIN(S) suffix formative marks, for dietary and nutritional supplements. Id. at

52-300; 13 TTABVUE 1-168.14

With one exception, Applicant offered no evidence of use of the third-party

marks,15 and “[t]he ‘existence of [third-party] registrations is not evidence of what

happens in the market place or that customers are familiar with them.’” Inn at St.

John’s, 126 USPQ2d at 1746 (quoting AMF Inc. v. Am. Leisure Prods., 474 F.2d 1403,

177 USPQ 268, 269 (CCPA 1973)). Registrations alone, however, may be “‘relevant to

prove that some segment of the composite marks which [Applicant and the cited

registrant] use has a normally understood and well-recognized descriptive or

192-195, 201-208, 215-223, 233-287, 294-300; 10 TTABVUE 1-25, 31-34, 38-51, 56-113, 117-
121, 135-137, 141-153, 163-183, 198-231, 235-268. These registrations have no probative
value with respect to the meaning or significance of the DYNA and DYNO formatives for the
human supplements at issue here. In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d
1744, 1751 (Fed. Cir. 2017) (disregarding third-party registrations for goods other than those
at issue where the proffering party had neither proven nor explained that they were related
to the goods in the cited registration); Inn at St. John’s, 126 USPQ2d at 1745 (citing
i.am.symbolic, 123 USPQ2d at 1751; Thor Tech, 90 USPQ2d at 1639, and Key Chem., Inc. v.
Kelite Chem Corp., 464 F.2d 1040, 175 USPQ 99, 101 (CCPA 1972)). Cf. Omaha Steaks Int’l,
Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1693-95 (Fed. Cir.
2018) (where goods at issue are identical, third-party uses on other goods are irrelevant).
14Applicant once again included multiple registrations of such marks for goods in Class 5
other than dietary and nutritional supplements for humans. 11 TTABVUE 31-39, 53-57, 63-
71, 76-83, 89-92, 97-100, 126-133, 148-157, 163-185, 196-199, 212-216, 221-230, 239-250, 258-
300; 12 TTABVUE 1-56, 61-64, 85-89, 139-144, 162-166, 189-193, 208-216, 222-227, 242-253,
272-277, 282-287, 292-300; 13 TTABVUE 1, 21-55, 70-74, 106-110, 122-126, 132-143, 150-
154, and 159-164. To the extent that these registrations are offered by Applicant to show the
meaning of the -MINE or -MIN(S) suffix for dietary and nutritional supplements, they are
not probative on that issue for the reasons discussed in footnote 13 above.
15As discussed below, one of the DYNO formative marks is owned by the owner of the mark
in the cited registration, and use of both marks is shown on the page from the registrant’s
website made of record by Applicant. January 31, 2018 Response to Office Action at TSDR 7.

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Serial No. 87482673

suggestive meaning, leading to the conclusion that that segment is relatively weak.’”

Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674

(Fed. Cir. 2015) (quoting 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION

§ 11:90 (4th ed. 2015)).

1. DYNO and DYNA Formative Marks

Applicant argues that its mark “DYNAMINE does not share any common element

with the cited registration for DYNO-MINS,” 17 TTABVUE 9, and Applicant appears

to offer the third-party registrations of the DYNO- and DYNA- formative marks to

show that those prefixes each have a different meaning that would be familiar to

consumers. Id. We will consider this evidence for that purpose, but also to determine

whether it shows that the DYNO- prefix in the cited mark has “a descriptive or

suggestive meaning, leading to the conclusion that that segment is relatively weak.”

Juice Generation, 115 USPQ2d at 1674 Id.16

The third-party registrations of DYNO and DYNA formative marks fall into two

categories:

1. Marks in which DYNA appears as part of the word “dynamic” or

“dynamite” (DYNAMIC, DYNAMIC EVOLUTION, DYNAMIC

VITA, DYNAMIC SUPPELEMENTS DS and design, DYNAMIC

FORMULAS, DYNAMIC HEALTH, DYNAMIC RESERVES and

16 Third-party registrations are probative only of the conceptual weakness of a mark or term.
“‘As to commercial weakness, ‘[t]he probative value of third-party trademarks depends
entirely upon their usage.’” Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ 1043,
1059 (TTAB 2017) (quoting Palm Bay Imps., Inc. v. Veuve Cliquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005)). Because the record contains
no evidence of third-party use, there is no evidence that the cited mark is commercially weak.

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Serial No. 87482673

design, DYNAMIC ENZYMES, NATURE’S DYNAMIC, DYNAMIC

MAN, DYNAMIC LIFE, D.I.E. DYNAMIC IMMEDIATE ENERGY

TREATMENT, DYNAMIC FUEL, DYNAMIC MUSCLE BUILDER,

NUTRITION DYNAMICS, DYNAMIC BODY SHAPER, DYNAMIC

TRIO, DYNAMIC FAT BURNERS, and DYNAMITE ENERGY

SHAKE), 9 TTABVUE 96-99, 104-107, 108-112, 117-120, 127-132,

133-136, 147-150, 160-163, 164-168, 169-177, 186-191, 196-200, 229-

232; 10 TTABVUE 52-55, 114-116, 122-124, 125-134, 138-140, 154-

162, and 184-192; and

2. Marks in which DYNO or DYNA appear alone, as a prefix with other

elements, or as part of a word other than “dynamic” or “dynamite”

(DYNO (stylized), DYNOSHRED, DYNO VITES, DYNAMEGA,

DYNAX, DYNA-TABS, DYNA-KOR PHARMACAL, DYNATRIM,

DYNAPLEXX, DYNAMAXX LIGHTS ON, DYNAMAXX LIGHTS

ON and design, DYNAMAXX LIVE LIFE TO THE MAXX,

DYNAMAXX B4 and design, DYNAPLEXX, and DYNAJET). 9

TTABVUE 68-72, 73-76, 82-85, 100-103, 121-126, 178-181, 209-214,

224-228, 246-250, 288-293; 10 TTABVUE 26-30, 35-37, 193-197, and

232-234.

The marks in the first category have no probative value because neither of the

subject marks contains the word DYNAMIC or DYNAMITE. Cf. Inn at St. John’s,

126 USPQ2d at 1746 (discounting probative value of registrations of FIFTH DINING

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Serial No. 87482673

and FIFTH GROUP RESTURANTS and design on weakness of the term 5IVE in

cited mark 5IVESTEAK).

With respect to the second category, there are only three registered marks

consisting of or containing DYNO, and one of them is owned by the owner of the cited

registration. 9 TTABVUE 68-72, 73-75, 82-85.17 To the extent that the marks in this

category are considered for the purpose of assessing whether DYNO is conceptually

weak, two third-party registrations are far too few in number to constitute evidence

of such weakness that is “powerful on its face.” Jack Wolfskin Ausrustung Fur

Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116

USPQ2d 1129, 1136 (Fed. Cir. 2015). See Inn at St. John’s, 126 USPQ 2d at 1746

(four registrations and no use evidence found to be a “far cry from the large quantum

of evidence of third-party use and third-party registrations that was held to be

significant” in Jack Wolfskin and Juice Generation). These registrations do not show

that DYNO has a “descriptive or suggestive meaning, leading to the conclusion that

that segment is relatively weak,” Juice Generation, 115 USPQ2d at 1674, and they

do not show that DYNO means something different from DYNA.

There are nine different DYNA formative marks.18 9 TTABVUE 100-103, 121-126,

178-181, 209-214, 224-228, 246-250, 288-293; 10 TTABVUE 26-30, 35-37, 193-197,

and 232-234. Eight of them use DYNA as a prefix in a manner consistent with the

17Both DYNO-MINS, September 11, 2017 Office Action at TSDR 2, and DYNO VITES, 9
TTABVUE 82-85, are owned by Natural Organics Inc., and the marks are promoted together.
January 31, 2018 Response to Office Action at TSDR 7.
18The four registrations of the DYNAMAXX formative marks have a common owner. 9
TTABVUE 178-181, 209-214, 224-228, 246-250.

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Serial No. 87482673

meaning of the term as “a combining form meaning ‘power,’ used in the formation of

compound words: dynamotor.” 10 TTABVUE 269-271 (DICTIONARY.COM).19

Collectively, these registrations reinforce the dictionary definition of the term, and

indicate that DYNA may be suggestive for dietary and nutritional supplements, but

like the DYNO registrations, they do not show that DYNA and DYNO have different

meanings when they are used in marks for those goods.

In the absence of evidence of use of the eight DYNA- prefix formative marks, they

tell us nothing about the extent to which “consumers would be familiar with the four-

letter element ‘DYNA’” for human supplements. 17 TTABVUE 8. They also tell us

little, if anything, about the extent to which consumers of DYNAMINE supplements

will be able to distinguish the DYNO-MINS mark for identical goods because they

are familiar with other DYNA-formative marks for supplements, especially because

none of the DYNA- prefix formative marks (DYNAMEGA, DYNA-TABS, DYNA-KOR

PHARMACAL, DYNATRIM, DYNAPLEXX, DYNAPLEXX, DYNAJET, and the

variants of DYNAMAXX) are as similar to the involved DYNAMINE and DYNO-

MINS marks as those marks are to each other.

2. MINE and MIN(S) Formative Marks

Applicant made of record a large number of registered -MINE and -MIN(S) suffix

formative marks for dietary and nutritional supplements to show that “members of

the consuming public are very familiar with goods in International Class 005 wherein

the mark is either a ‘mins’ or a ‘mine’ and would understand that these are different

19 The ninth DYNA formative mark is DYNAX. 9 TTABVUE 121-126.

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Serial No. 87482673

elements and not merely the singular or plural version of each other.” 17 TTABVUE

9. In the absence of evidence of use of these marks, they too tell us nothing about the

extent to which consumers would be familiar with them. They too also tell us little, if

anything, about the extent to which consumers of DYNAMINE supplements will be

able to distinguish the DYNO-MINS mark for identical goods because they are

familiar with other -MINE and -MIN-suffix formative marks for supplements, again

because the pertinent -MINE formative marks (FAMINE, TRUGLUTAMINE,

NITRAMINE, PYROXAMINE, GLUTALOEMINE, NAKED GLUTAMINE, POWER

GLUTAMINE, GLUTAMINE+PLUS, OEMINE, OSAMINE, CHOCAMINE,

COGNAMINE, NUSTAMINE, MENDAMINE, AVASTAMINE and design,

LITRAMINE, TEPAMINE, DEXAMINE, ALPHAMINE, GLUCOSAMINE PLUS,

ENDORPHAMINE, CHRNOMINE, WAKAMINE, TRIGOSAMINE, SUSTAMINE,

IZMINE, PERIMINE, METABROMINE, NUTRAMINE, INTESTAMINE,

ENZAMINE, and JUVAMINE) are dissimilar to DYNAMINE; the pertinent -MIN

formative marks (CHEWAMINS, INTRAMIN, HAIRTAMIN, ALTHYMIN,

SPECTRAMIN, CREATOMIN, DETOXAMIN, DENTYMINS, ACUMIN,

MICRONAMIN and design, NOOTROMINS, HERBAMIN, VITAMIN WAY,

VITAMIN WHEY, ORAMIN-P, BACMIN, RITAMINS, IONAMIN, TELOMIN,

INFLAMIN, ENDURAMIN, VERSAMIN, BELLAMINS, NATRIMIN, CYSTOMIN,

PROFERMIN, HEPANAMIN, WATERMINS, BETAMIN, THERACURMIN,

BIOBUMIN, BONEMINS, INFINIMIN, RETAMIN, LIQUIDMIN, SENTRAMIN,

ELEMIN, PHENTERAMIN, ACTAMIN, OMNIMIN, MOMSTAMIN, COLLAMIN,

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Serial No. 87482673

CAVACURMIN, MOOMIN, AQUAMIN and design, CIMIFEMIN, MEGA VITAMIN

and design, DOUBLEMIN, ALINAMIN, OXYTAMIN, and PIC-MINS), are dissimilar

to DYNO-MINS; and none of the marks in either category are as similar to

DYNAMINE or DYNO-MINS as those marks are to each other.

To the extent that the third-party registrations are relevant evidence under the

sixth DuPont factor, they do not support Applicant’s argument that “there are several

other marks within the dietary supplement class that are similar to Applicant’s Mark

and the Registered Mark,” and that these marks show that Applicant’s mark “is

sufficiently distinctive to designate the Applicant as the source of its goods within

this class.” 17 TTABVUE 20. We find that the sixth DuPont factor is neutral in our

analysis of the likelihood of confusion.

C. Similarity or Dissimilarity of the Marks

Applicant devotes the bulk of its main brief to the first DuPont factor, which it

argues “substantially outweighs any other relevant factors” and “is dispositive of the

issue of a likelihood of confusion.” 17 TTABVUE 5-6. Under this factor, we consider

“‘the similarity or dissimilarity 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). “Similarity in any one of these elements

may be sufficient to find the marks confusingly similar.” In re Davia, 110 USPQ2d

1810, 1812 (TTAB 2014) (citing In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB

1988)). “The 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

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such that persons who encounter the marks would be likely to assume a connection

between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101

USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted). “The proper perspective on

which the analysis must focus is on the recollection of the average customer, who

retains a general rather than specific impression of marks.” In re i.am.symbolic, 127

USPQ2d 1627, 1630 (TTAB 2018) (citations omitted).20

“‘[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)). Because the

goods are legally identical, “the degree of similarity between the marks necessary to

support a determination that confusion is likely declines.” i.am.symbolic, 127

USPQ2d at 1630 (citing Bridgestone Ams. Tire Operations, LLC v. Fed. Corp., 673

F.3d. 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Viterra, 101 USPQ2d at 1908;

In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); and

Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698,

1701 (Fed. Cir. 1992)).

1. Applicant’s and the Examining Attorney’s Arguments

(a) Applicant’s Arguments

Applicant argues that “the marks in their entireties, including their appearance,

sound, and connotation, are so dissimilar that this factor substantially outweighs any

20Applicant describes the average customers of dietary supplements as “ordinary consumers
wishing to support their health/fitness goals.” 17 TTABVUE 19.

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Serial No. 87482673

other relevant factors.” 17 TTABVUE 5-6. Applicant repeatedly criticizes the

Examining Attorney’s analysis of similarity as being “based on the improper premise

and dissection of the Parties’ marks” into what Applicant calls the “syllables ‘DYN’

and ‘MIN’ in the Applicant’s Mark and ‘DYN’ and ‘MIN’ in the Registered Mark.” Id.

at 6. Applicant argues that the proper comparison of the marks takes into account

that Applicant’s mark consists of the terms “‘DYNA’ and ‘MINE,’ not three-letter

syllables,” while the cited mark “explicitly separates itself into the two elements

‘DYNO’ and ‘MINS.’” Id. Applicant contends that when the marks are viewed properly

in their entireties, “Applicant’s Mark DYNAMINE does not share any common

element with the cited registration for DYNO-MINS.” Id. at 9.

Applicant further argues that “the marks are visually and phonetically distinct,”

id. at 13, but does not explain how the marks are dissimilar in sound.21 With respect

to appearance, Applicant argues that because “Applicant’s goods are primarily sold

in a visual or self-service manner, such as on the internet,” and the cited registrant’s

“goods are sold primarily in a visual or self-service manner in a retail store,” id. at

13, both marks “are first, and primarily, encountered visually,” and that as a result,

“sound is not as important” as appearance in assessing the similarity of the marks.

Id. Applicant appears to argue that the marks are dissimilar in appearance because

consumers would notice the hyphen in the cited mark DYNO-MINS, which Applicant

claims divides the mark into its constituent elements DYNO and MINS and

21Elsewhere in its main brief, Applicant appears to concede the marks’ similarity in sound
in claiming that “the visual impact of the mark predominates over” what Applicant calls any
“phonetic equivalent [sic],” 17 TTABVUE 8, and any “phonetic impact.” Id. at 14.

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Serial No. 87482673

“emphasizes that the first portion of the mark is the four-letter term ‘DYNO,’” id. at

7-8, while Applicant’s mark “is a one-word compound mark, DYNAMINE.” Id. at 8.

Finally, Applicant argues that the “connotations and commercial impressions of

the Applicant’s Mark and the Registered Mark are different and distinct, and this

fact alone is sufficient to prevent a likelihood of confusion.” Id. at 14. Applicant claims

that DYNAMINE connotes “that the products are for ‘my’ (i.e., the consumers’) ‘power’

or to help consumers find and extract their own power,” id. at 9, and that this

“meaning is further supported by the suggestive connotation to [sic] the word

‘dynamite,’ which itself means something explosive or someone with a spectacular

effect,” id.,22 while the cited mark “connotes, if anything, a minimum quantity of

‘dyno.’” Id. at 8.

(b) The Examining Attorney’s Arguments

The Examining Attorney argues that DYNAMINE and DYNO-MINS are similar

in all means of comparison. 19 TTABVUE 5. He notes that the “first seven letters of

the applied-for mark DYNAMINE are nearly identical to the first seven letters of the

registrant’s mark, DYNO-MINS,” and argues that “the applied-for mark appears to

be a singular form of the registrant’s mark.” Id. He further argues that “the marks

are comprised of phonetically similar syllables in an identical order,” and because

“both marks begin with DYN they both suggest a dynamic product,” id., and because

“both marks include the letters MIN they suggest a product that is a vitamin or

As discussed above, Applicant argues on reply that DYNAMINE has an entirely different
22

meaning. We have ignored Applicant’s argument regarding this alternative meaning because
we have excluded the materials on which it is based.

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Serial No. 87482673

includes vitamins.” Id. at 5-6. According to the Examining Attorney, because “both

marks include these similar components in the same order, separated by a similar

vowel sound, the marks as a whole are confusingly similar.” Id. at 6.

The Examining Attorney also rejects Applicant’s argument that the appearance

of the marks is more important that their sound because “[t]his argument directly

contradicts applicant’s statements indicating that the goods are a powdered

ingredient used in the manufacture of supplements sold through a complex trade

channel involving long-term negotiations.” Id. He argues that “the phonetic similarity

of the marks at issue should not be discounted” and that “[t]here is no correct

pronunciation of a mark because it is impossible to predict how the public will

pronounce a particular mark,” leading him to conclude that the “DYNAMINE and

DYNO-MINS portions of the marks in question could clearly be pronounced the

same.” Id.

2. Analysis of Similarity

(a) Appearance23

While not identical in appearance, the DYNAMINE and DYNO-MINS marks have

identical structures, as both contain a total of three syllables and eight letters, both

begin with four-letter, two syllable DYNA and DYNO prefixes, and both end with

four-letter, one-syllable MINE and MINS suffixes. Unlike in Applicant’s mark, the

23Applicant’s argument that this means of comparison should be given greater weight than
a comparison of the marks in sound, 17 TTABVUE 13-14, is unfounded because it is based
on trade channel restrictions that are not present in the identifications of goods. As discussed
above, we must assume that the goods travel through all ordinary channels of trade for
supplements, and there is no evidence that those channels of trade make any one means of
comparison of the marks uniquely or particularly important.

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Serial No. 87482673

first two syllables of the cited mark are separated from the final syllable by a hyphen,

but Applicant places much more weight on that feature of the cited mark than it can

reasonably bear.

Consumers may notice the hyphen in DYNO-MINS when they first see the mark,

but “marks ‘must be considered . . . in light of the fallibility of memory’ and ‘not on

the basis of side-by-side comparison.’” St. Helena Hosp., 113 USPQ2d at 1085 (quoting

San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196

USPQ 1, 3 (CCPA 1977)). Consumers with fallible memories who have seen the cited

DYNO-MINS mark and who are then exposed to the DYNAMINE mark are unlikely

to recall that DYNO-MINS contains a hyphen when they picture that mark in their

mind’s eye. In any event, the Board has repeatedly held that the presence of a hyphen

in a mark does not meaningfully distinguish that mark from another mark with the

same or similar elements, but no hyphen. See, e.g., Mini Melts, Inc. v. Reckitt

Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016) (opposer’s mark MINI MELTS

found to be “essentially identical” in appearance to applicant’s mark MINI-MELTS

because “the hyphen in Applicant’s mark MINI-MELTS does not distinguish it from

Opposer’s mark”) (citing cases). We find that the DYNAMINE and DYNO-MINS

marks are similar in appearance, taking into account “the recollection of the average

customer, who retains a general rather than specific impression of marks.”

i.am.symbolic, 127 USPQ2d at 1630.

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Serial No. 87482673

(b) Sound

As discussed above, Applicant does not seriously contend that the marks are

dissimilar in sound. Aurally, the marks are also similar in structure, as both contain

three syllables beginning with the same consonants. Both marks begin with a syllable

pronounced as “die” followed by the syllables NA and NO, which can sound similar,

notwithstanding their different vowels, when they are verbalized. The DYNA- and

DYNO- prefixes thus could easily be heard to be identical or very similar.24

The final syllables in the marks are -MINE and -MINS, which could be

pronounced and heard differently depending on how the letter “I” in those syllables

is pronounced. The Examining Attorney is correct that generally “[t]here is no correct

pronunciation of a mark because it is impossible to predict how the public will

pronounce a particular mark,” 19 TTABVUE 6, but that principle makes exception

for situations in which a mark is a common English word. See Research in Motion

Ltd. v. Defining Presence Mfg. Co., 102 USPQ2d 1187, 1193 (TTAB 2012). Applicant

argues that its mark “ends in ‘MINE,’” which Applicant calls “a recognized word,” 17

TTABVUE 9, “meaning ‘something that belongs to me,’ the possessive case of ‘I,’ or

digging or extracting.” Id. As discussed below in connection with the marks’ meaning,

Applicant’s third-party registrations of -MINE suffix formative marks for

supplements suggest that the -MINE suffix in DYNAMINE will not be understood in

24The hyphen in DYNO-MINS has no impact on how the mark is pronounced or heard. Mini
Melts, 118 USPQ2d at 1470 (citing Induct-O-Matic Corp. v. Inductotherm Corp., 747 F.2d
358, 224 USPQ 119, 121 (6th Cir. 1984) (“The use of hyphens distinguishes between the two
marks only on a visual level since this difference is absent when the words are spoken”)).

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Serial No. 87482673

either of these dictionary senses, and thus will not necessarily be pronounced in the

manner of the English word “mine.” It is thus possible that the -MINE suffix in

Applicant’s mark will be pronounced as “MIN,” or in another manner that will

increase its similarity to -MINS, when the applied-for mark is verbalized.25

In any event, regardless of exactly how the -MINE and -MIN suffixes are

pronounced, the DYNAMINE and DYNO-MINS marks are more similar than

dissimilar when they are pronounced because of the very close aural similarity of

their prefix elements, again taking into account the recollection of the average

customer who must recall how the DYNO-MINS mark sounds when hearing the

DYNAMINE mark verbalized. We find that the marks are similar in sound.

(c) Connotation and Commercial Impression

There is no support in the record for Applicant’s claim that DYNAMINE connotes

“that the products are for ‘my’ (i.e., the consumers’) ‘power’ or to help consumers find

and extract their own power,” id. at 9,26 while DYNO-MINS “connotes, if anything, a

minimum quantity of ‘dyno.’” Id. at 8. The DYNA- prefix in Applicant’s mark is “a

25In that regard, we note that the first mark in Applicant’s group of -MINE suffix formative
marks, FAMINE, 10 TTABVUE 292-295, consists of an English word in which the -MINE
suffix is ordinarily pronounced as “MIN.” Other marks in the group, such as NAKED
GLUTAMINE (GLUTAMINE disclaimed) and POWER GLUTAMINE (GLUTAMINE
disclaimed), 11 TTABVUE 8-14, 25-30, and GLUCOSAMINE PLUS (GLUCOSAMINED
disclaimed), id. at 122-125, include English words in which the -MINE suffix is ordinarily not
pronounced in the manner of the possessive pronoun “mine,” but rather in the manner of the
English word “mean.”
26As discussed above, Applicant argues on reply that DYNAMINE has an entirely different
meaning relating to “butterflies found in South America.” 20 TTABVUE 2. Applicant claims
that “the relevant consumer upon viewing the word ‘dynamine’ will understand the word to
be a name for butterflies and will not associate the mark with the cited mark ‘DYNO-MINS.’”
Id. We have given no consideration to this alternative meaning because we have excluded
the evidence on which it is based.

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Serial No. 87482673

combining form meaning ‘power,’ used in the formation of compound words:

dynamotor,” 10 TTABVUE 269-271 (DICTIONARY.COM), and, in the context of

supplements, the similarly appearing and sounding DYNO- prefix in DYNO-MINS

has the same connotation of power in the absence of evidence of some other

established meaning.

The suffixes -MINE and -MINS added to DYNA- and DYNO- respectively do not

give the marks different meanings when the marks are considered in their entireties.

To the extent that the third-party registrations of -MINE and -MIN formative marks

show anything, it is that when those suffixes appear in marks for dietary and

nutritional supplements, they do not connote the dictionary meanings of the suffixes

argued by Applicant, a possessive pronoun or “digging or extracting” in the case of –

MINE, 17 TTABVUE 9, and “the least quantity of anything” in the case of -MINS. Id.

at 8.

It is self-evident that the -MINE suffix in these scientific- and medical-sounding

marks for dietary and nutritional supplements has nothing to do with mining and

does not represent the possessive pronoun. Instead, the -MINE suffix in the

DYNAMINE mark connotes that supplements sold under that mark involve

substances that are beneficial to one’s health.27

The “least quantity of anything” meaning ascribed by Applicant to the -MINS

suffix in the DYNO-MINS mark is similarly unlikely to be perceived by consumers of

For example, the goods sold under the NAKED GLUTAMINE, POWER GLUTAMINE, and
27

GLUCOSAMINE PLUS marks are supplements consisting of such substances.

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Serial No. 87482673

supplements sold under the mark. The noun “supplement” means “something that

completes or makes an addition,”28 and dietary and nutritional supplements add

something to one’s diet by definition. It is utterly implausible that consumers would

view any -MIN(S) suffix formative mark for supplements as communicating that

those goods provide “the least quantity of anything,” or that the cited mark DYNO-

MINS connotes, in Applicant’s words, “a minimum quantity of ‘dyno.’” Id. at 8. The

registered -MIN(S) suffix formative marks suggest instead that it is much more likely

that consumers would understand -MINS as a shorthand for, or allusion to, vitamins,

which Applicant acknowledges are a form of dietary supplement. 17 TTABVUE 16.

Indeed, some of the -MIN suffix formative marks made of record by Applicant

expressly reference vitamins (VITAMIN WAY, 12 TTABVUE 121-127, VITAMIN

WHEY, id. at 128-134, and MEGA VITAMIN and design, 13 TTABVUE 100-105),

while others containing the –MINS suffix allude to vitamins (CHEWAMINS, 12

TTABVUE 57-60,29 DENTYMINS, id. at 94-97, NOOTROMINS, id. at 113-116,30

RITAMINS, id. at 149-152,31 WATERMINS, id. at 228-232, and BoneMins, id. at 259-

262).32 Like the -MINE suffix in Applicant’s DYNAMINE mark, the -MINS suffix in

28MERRIAM-WEBSTER DICTIONARY (merriam-webster.com, last accessed on July 22, 2019).
The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed form or regular fixed editions, Univ. of Notre Dame du Lac v. J.C.
Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
29 The identification of goods in this registration includes “vitamin supplements.”
30The identification of goods in this registration includes “vitamins in the nature of
nootropics, namely, cognitive enhancing supplements for human consumption.”
31 The identification of goods in this registration includes “vitamins.”
32 The identification of goods in this registration includes “vitamin and mineral supplements.”

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Serial No. 87482673

the DYNO-MINS mark connotes that supplements sold under that mark involve

substances (in this case, probably vitamins) that are beneficial to one’s health. The

DYNAMINE and DYNO-MINS mark are similar in connotation and commercial

impression.

Although there are differences between the DYNAMINE and DYNO-MINS

marks, we find that they are more similar than different in appearance, sound, and

meaning when considered in their entireties. Given that the goods are identical and

“the degree of similarity between the marks necessary to support a determination

that confusion is likely declines,” i.am.symbolic, 127 USPQ2d at 1630, the

DYNAMINE and DYNO-MINS 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.” Coach Servs., 101 USPQ2d at 1721. The

first DuPont factor supports a finding of a likelihood of confusion.

D. Purchase Conditions

The fourth DuPont factor concerns the “conditions under which and buyers to

whom sales are made, i.e., ‘impulse v. careful, sophisticated purchasing.” DuPont, 177

USPQ at 567. Applicant argues that the purchasers of its dietary and nutritional

supplements are “highly sophisticated business people” who are “owners of dietary

supplement manufacturing companies who are responsible for running businesses”

and who “make the decision to purchase the Applicant’s ingredient only after

negotiating price, delivery amount, time for delivery, and many other issues.” 17

TTABVUE 18. Like Applicant’s arguments regarding the goods and their channels of

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Serial No. 87482673

trade, this argument is unavailing because it is based on limitations or restrictions

that do not appear in Applicant’s identification of goods.33

As noted above, Applicant describes the average customers of dietary supplements

as “ordinary consumers wishing to support their health/fitness goals.” 17 TTABVUE

19. Even assuming that some of those consumers may exercise a heightened degree

of care because supplements are ingested and are directed to achieving “health/fitness

goals,” our decision must “be based ‘on the least sophisticated potential purchasers.’”

Stone Lion, 110 USPQ2d at 1163 (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus.

S.A., 100 USPQ2d 1584, 1600 (TTAB 2011), judgment set aside on other grounds,

2014 WL 343267 (TTAB Jan. 22, 2014)). There is nothing in the record to show that

the least sophisticated consumers of supplements will exercise anything more than

ordinary care in purchasing the goods, and Applicant acknowledges that the goods

“are more likely to be purchased impulsively” than other goods. 17 TTABVUE 19. The

fourth DuPont factor is thus neutral in our analysis of likelihood of confusion.

33Applicant cites HerbalScience for the proposition that “dietary supplement purchasers have
been found to be sophisticated purchasers.” 17 TTABVUE 19. Once again, the case does not
aid Applicant. The Board found in HerbalScience that the applicant’s “identification of goods
is sufficient to show that its goods would be sold to manufacturers of pharmaceuticals,
nutraceuticals and the like,” and the “buyers of such goods, who would be using these
ingredients for the products that they make and sell, must be assumed to be knowledgeable
and careful purchasers.” HerbalScience, 96 USPQ2d at 1324. As discussed above, Applicant’s
“dietary and nutritional supplements” identification is not restricted in the manner of the
applicant’s identification in HerbalScience. Notably, the Board also found that the
registrant’s unrestricted “dietary and nutritional supplements” were goods that “can be
purchased by ordinary consumers on impulse,” id., and, consistent with that finding,
Applicant acknowledges that such dietary supplements “are more likely to be purchased
impulsively by ordinary consumers wishing to support their health/fitness goals.” 17
TTABVUE 19.

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Serial No. 87482673

E. Conclusion

The goods, channels of trade, and classes of purchasers are identical, and the least

sophisticated purchasers of dietary and nutritional supplements will exercise no more

than ordinary care in purchasing the goods. Although there are some differences

between the marks, their similarities outweigh their differences, and are sufficient to

support a finding of a likelihood of confusion when the marks are used for identical

goods. We find that prospective purchasers of DYNAMINE dietary and nutritional

supplements who are familiar with the DYNO-MINS mark for identical goods are

likely to believe mistakenly that the DYNAMINE supplements originate with, or are

authorized or sponsored by, the source of DYNO-MINS supplements.

Decision: The refusal to register is affirmed.

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