Vital Planet, LLC

This Opinion is Not a
Precedent of the TTAB

Mailed: July 22, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Vital Planet, LLC
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Serial No. 87455242
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Zachary D. Messa of Johnson, Pope, Bokor, Ruppel & Burns, LLP,
for Vital Planet, LLC.

Collier L. Johnson II, Trademark Examining Attorney, Law Office 123,
Susan Hayash, Managing Attorney.

_____

Before Ritchie, Kuczma, and Coggins,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:

Vital Planet, LLC (“Applicant”) seeks registration on the Principal Register of the

mark VITAL FLORA (in standard characters) for “dietary supplements for pets for

supporting intestinal flora for digestive health,” in International Class 5.1

The Trademark Examining Attorney refused registration under Section 2(d) of the

Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied

1 Application
Serial No. 87455242 filed on May 18, 2017, under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and use in
commerce since at least as early as November 10, 2016.
Serial No. 87455242

to the goods identified in the application, so resembles the mark FLORAVITAL (in

typed form) for “dietetic food supplements,” in International Class 5,2 on the Principal

Register as to be likely to cause confusion, to cause mistake, or to deceive. When the

refusal was made final, Applicant appealed and requested reconsideration. The

Examining Attorney denied the request for reconsideration, and the appeal was

resumed. We affirm the refusal to register.

I. Likelihood of Confusion

Our determination under Section 2(d) is based on an analysis of all 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);

see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.

2003). In any likelihood of confusion analysis, however, two key considerations are

the similarities between the marks and the similarities between the goods. See

Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29

(CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative

effect of differences in the essential characteristics of the goods and differences in the

marks.”).

A. Identity of the Goods, Channels of Trade, and Classes of Customers

We first consider the second and third du Pont factors, the similarity of the goods,

channels of trade, and classes of customers. We must make our determinations under

these factors based on the goods as they are identified in the application and cited

2 Registration No. 2295973, issued November 30, 1999; renewed.

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Serial No. 87455242

registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,

110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc.,

281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002); In re Dixie Rests. Inc., 105

F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); Octocom Sys., Inc. v. Hous.

Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).

Registrant’s goods are “dietetic food supplements.” Applicant’s goods are “dietary

supplements for pets for supporting intestinal flora for digestive health.” Where the

cited registration describes the goods broadly, and there is no limitation as to their

nature, type, channels of trade, or class of purchasers, it is presumed that the

registration encompasses all goods of the type described, that they move in all normal

channels of trade, and that they are available to all classes of purchasers. See, e.g.,

Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d

1167, 1173 (Fed. Cir. 2013); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Because

Registrant’s broadly identified food supplements are not restricted to humans,

Registrant’s identification must be read to encompass Applicant’s narrower goods.3

3 Although the Examining Attorney presumed that Registrant’s goods were for human use,
see April 13, 2018 Office Action at TSDR 5 (“Where the identification does not specify
otherwise, the Office construes an identification in International Class 5 to identify goods for
human use.”), and Brief, unnumbered p. 9 (12 TTABVUE 10) (“the registrant is offering
supplements for humans”), there is no such limitation in Registrant’s identification, and we
are not bound by the Examining Attorney’s statement. See, e.g., In re D.B. Kaplan
Delicatessen, 225 USPQ 342, 343 n.2 (TTAB 1985) (Board need not “limit its determination
of the question of registrability to the reasons set forth by the Examining Attorney during
the prosecution of this application”); see also, TBMP § 1217 (2019) and authorities cited
therein. The Board may find goods related or legally identical even if our specific reasoning
was not previously argued by Applicant or the Examining Attorney during the application’s
prosecution and on appeal. Moreover, there appears to be no legal basis for the presumption,
which runs against TMEP §§ 1402.07(a) (Oct. 2018) (The Ordinary-Meaning Test) and
1207.01(a)(iii) (Reliance on Identification of Goods/Services in Registration and Application).

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Serial No. 87455242

See 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.”’).

To the extent Applicant argues that Registrant’s specimen shows the cited “goods

are for human not pet consumption, a different market than [Applicant’s] dietary

supplements for pets,” Brief, p. 10 (10 TTABVUE 14), our determination is bounded

by the four corners of the application and cited registration; we may not read into

them limitations based on actual use. See, e.g., In re La Peregrina Ltd., 86 USPQ2d

1645, 1647 (TTAB 2008) (“An applicant may not restrict the scope of the goods covered

in the cited registration by argument or extrinsic evidence.”) (citing In re Bercut-

Vanderboort & Co., 229 USPQ 763, 764-65 (TTAB 1986)). Therefore, the goods in the

cited registration overlap with the goods in the application; they are legally identical

in part.

Given the legal identity of the goods in part, and the lack of restrictions or

limitations in the cited registration as to their nature, channels of trade, or classes of

purchasers, we must presume that the channels of trade and classes of purchasers

are also the same. In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1518-19

(TTAB 2016); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed.

Cir. 2012) (finding Board entitled to rely on this legal presumption in determining

likelihood of confusion).

Based on the in-part legal identity of the goods set forth in the application and the

cited registration, and the overlapping trade channels and classes of purchasers, the

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du Pont factors of the similarity of the goods, channels of trade, and classes of

customers weigh heavily in favor of likelihood of confusion.

B. Strength of the Mark

Because the strength of the cited FLORAVITAL mark will inform our comparison

of the marks, we address Applicant’s claim that the term FLORAVITAL deserves a

narrow scope of protection for dietetic food supplements because, due to “dozens of

registered marks” containing either the term FLORA or the term VITAL, Brief, p. 3

(10 TTABVUE 7), “consumers are bombarded with each of the terms contained in . . .

Registrant’s mark for the same type of goods.” Reply Br., p. 3 (13 TTABVUE 7).

The Examining Attorney made of record dictionary definitions showing VITAL

means “necessary to the continuation of life; life-sustaining: a vital organ; vital

nutrients” and FLORA means “the bacteria and other microorganisms that normally

inhabit a bodily organ or part: intestinal flora.”4 Based on these definitions alone we

find each constituent term (i.e., FLORA and VITAL) to be suggestive of dietetic food

supplements. However, there is no evidence to indicate that when combined as

FLORAVITAL the mark has any conceptual weakness.

In support of its position that FLORA and VITAL are individually weak terms and

entitled only to a limited scope of protection, Applicant invokes the sixth du Pont

factor by pointing to third-party registrations and uses of those registered marks (i.e.,

specimens in the respective registration files) that include either the term VITAL or

4From THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE; April 13, 2018
Office Action, TSDR 7, 9.

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Serial No. 87455242

the term FLORA for dietary or nutritional supplements. See October 15, 2018

Request for Reconsideration at TSDR 36-128 (VITAL marks) and 129-356 (FLORA

marks).

The Federal Circuit has held that evidence of extensive registration and use of a

term by others for similar goods can be “powerful” evidence of the term’s weakness.

Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U.,

797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS

Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). If the evidence

establishes that the consuming public is exposed to widespread third-party use of

similar marks for similar goods, it “is relevant to show that a mark is relatively weak

and entitled to only a narrow scope of protection.” Palm Bay Imps., Inc. v. Veuve

Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693

(Fed. Cir. 2005).

The record contains extensive evidence of third-party use and registration of

marks that include either the term VITAL or the term FLORA for dietary or

nutritional supplements. See October 15, 2018 Request for Reconsideration at TSDR

36-128 (VITAL marks) and 129-356 (FLORA marks).5 These individual terms appear

to be weak for dietary and nutritional supplements. See Juice Generation, 115

USPQ2d at 1675 (Third-party registrations “are relevant to prove that some segment

of the composite marks which both contesting parties use has a normally understood

5Not all of this evidence is probative, as a handful of marks identify goods other than dietary
or nutritional supplements or are owned by the same third-parties; however, the majority of
the evidence is probative.

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Serial No. 87455242

and well-recognized descriptive or suggestive meaning, leading to the conclusion that

that segment is relatively weak.” (quoting Textronix, Inc. v. Daktronics, Inc., 534 F.2d

915, 189 USPQ 693, 694 (CCPA 1976))). However, Applicant produced no evidence of

third-party use or registration of the combined term FLORAVITAL. It is well-

established that the weakness of the individual components of a mark is not, of itself,

sufficient to prove that their combination creates a weak mark. See China

Healthways Inst., Inc. v. Wang, 491 F.3d 1337, 83 USPQ2d 1123, 1125 (Fed. Cir. 2007)

(“It is incorrect to compare marks by eliminating portions thereof and then simply

comparing the residue.” (citing Specialty Brands, Inc. v. Coffee Bean Distribs., Inc.,

748 F.2d 669, 223 USPQ 1281, 1283 (Fed. Cir. 1984))); Franklin Mint Corp. v. Master

Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a

mark should not be dissected and considered piecemeal; rather, it must be considered

as a whole in determining likelihood of confusion.”). We give little weight to

Applicant’s evidence of third-party trademark registrations and specimens which

separately include variants of either VITAL or FLORA. Applicant has not shown that

the combination of the terms FLORA and VITAL into the term FLORAVITAL is a

weak mark not entitled to a normal scope of protection.

Even if we assume that the combined term FLORAVITAL is weak, “likelihood of

confusion is to be avoided, as much between ‘weak’ marks as between ‘strong’ marks,

or as between a ‘weak’ and ‘strong’ mark.” King Candy Co. v. Eunice King’s Kitchen,

Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974). Given the identity of the two

terms (i.e., FLORA and VITAL) in Applicant’s and Registrant’s marks and the

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Serial No. 87455242

absence of any evidence showing that the combined term FLORAVITAL is weak or

diluted, we accord the cited mark an ordinary scope of protection in our likelihood of

confusion analysis. Moreover, while third-party registrations may be used to

demonstrate that a portion of a mark is suggestive or descriptive, they “cannot justify

the registration of another confusingly similar mark.” In re J.M. Originals Inc., 6

USPQ2d 1393, 1394 (TTAB 1987), quoting Plus Prods. v. Star-Kist Foods, Inc., 220

USPQ 541, 544 (TTAB 1983).

The du Pont factors assessing the degree of weakness or strength of the registered

mark are neutral.

C. Similarity of the Marks

We next consider the first du Pont likelihood of confusion factor, which focuses on

“‘the similarity or dissimilarity of the marks in their entireties as to appearance,

sound, connotation and commercial impression.’” Palm Bay v. Veuve Clicquot, 73

USPQ2d at 1691 (quoting du Pont, 177 USPQ at 567). “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 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). Consumers may not necessarily encounter the marks in close

proximity and must rely upon their recollections thereof over time. In re Mucky Duck

Mustard Co., 6 USPQ2d 1467, 1468 (TTAB 1988). Moreover, where the goods of the

applicant and registrant are legally identical, as they are in-part in this case, the

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degree of similarity between the marks required to support a finding of likelihood of

confusion is not as great as would be required with diverse goods. See 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). The focus is on the recollection of the average

purchaser, who normally retains a general rather than a specific impression of

trademarks. United Global Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB

2014); In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009). Here, the average purchaser

of Applicant’s goods includes ordinary consumers who purchase dietary supplements

for pets for supporting intestinal flora for digestive health.

Applicant’s mark is VITAL FLORA. Registrant’s mark is FLORAVITAL. Each

mark contains the terms VITAL and FLORA, and only those terms. Applicant’s mark

transposes the terms as they are presented in the cited mark.

Applicant argues that its mark is comprised of two words while Registrant’s mark

consists of a single word. We acknowledge there is no space between FLORA and

VITAL in the cited mark; however, the lack of a space does not mean that consumers

would not recognize and understand that the cited mark is comprised of two terms

FLORA and VITAL. Applicant has not demonstrated that FLORAVITAL is a

recognized word, and, as noted above, the Examining Attorney made of record

dictionary definitions for the words VITAL and FLORA. Because “flora” and “vital”

are standard words, consumers will readily recognize that the cited mark is

comprised of two individual terms, both of which are words – the same words which

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appear in Applicant’s mark. The marks sound similar to the extent they contain the

identical constituent words.

Applicant also argues that “the difference in connotation between Applicant’s use

of the term ‘flora’ and Registrant’s use [of that same term] is apparent.” Brief, p. 7

(10 TTABUE 11). Specifically, Applicant posits that FLORA in its mark connotes

bacteria or intestinal flora, while FLORA in the cited mark connotes a plant or a

flower. Id. In its argument about the connotation of the term FLORA, Applicant

attempts to limit Registrant’s goods to products “comprised of non-probiotic

ingredients.” Brief, p. 8 (10 TTABVUE 12). However, there is no such limitation in

Registrant’s identification of goods. We must focus on the identification of goods

stated in the Application and Registration, not on extrinsic evidence of the nature of

the actual goods. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047,

1052 (Fed. Cir. 2018) (citing In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d

1744, 1749 (Fed. Cir. 2017)). Similarly, we reject the implication that the commercial

impression conveyed by Registrant’s mark differs, or is limited, due to Registrant’s

specimen of record.6 We must consider Registrant’s mark, as registered, and not as it

may otherwise be used, in our likelihood of confusion analysis. See, e.g., Mini Melts,

Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470-71 (TTAB 2016) (citing, inter

alia, Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed.

Cir. 2000) (“registrations with typed drawings are not limited to any particular

6 The specimen was made of record by Applicant as Exhibit 5 to the October 15, 2018 Request
for Reconsideration, TSDR 4, 476.

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Serial No. 87455242

rendition of the mark and, in particular, are not limited to the mark as it is used in

commerce”)); In re Infinity Broadcasting Corp. of Dallas, 60 USPQ2d 1214 (TTAB

2001) (“in Board proceedings, likelihood of confusion is determined independent of

the context of actual usage”). There is simply nothing to indicate that consumers will

have different commercial impressions for the two identical terms as used on

overlapping goods. Cf. Coach Servs. v. Triumph Learning, 101 USPQ2d at 1721

(meaning and commercial impression of “coach” differed due to use on different

services).

The Examining Attorney argues that “[A]pplicant’s mark simply transposes the

two word elements of [R]egistrant’s mark,” and that when the terms VITAL and

FLORA are used together in either Applicant’s or Registrant’s mark, they “convey

that the dietary supplements sold under the respective marks contain or provide vital

flora (i.e., necessary intestinal bacteria). Transposing the wording in these marks

does not change this commercial impression, and thus, the marks are confusingly

similar.” Examiner’s Brief, unnumbered pp. 4-5 (12 TTABVUE 5-6). We find the

marks FLORAVITAL and VITAL FLORA to have a similar commercial impression,

especially when used on in-part legally identical goods. As discussed above, FLORA

means “the bacteria and other microorganisms that normally inhabit a bodily organ

or part: intestinal flora,” while VITAL means “necessary to the continuation of life;

life-sustaining: a vital organ; vital nutrients.”7 Although Applicant’s mark places the

7From THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE; April 13, 2018
Office Action, TSDR 7, 9.

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Serial No. 87455242

adjective VITAL before the noun FLORA, but Registrant’s mark places the noun

before the adjective, there is nothing to suggest that the transposition of the terms

gives a new or different meaning to either of the constituent terms or to the marks as

a whole.

Relying on In re Akzona Inc., 219 USPQ 94, 96 (TTAB 1983) (“Applicant’s mark

‘SILKY TOUCH,’ conveys the impression that applicant’s synthetic yarns are silky to

the touch. On the other hand, registrant’s mark ‘TOUCH O’ SILK,’ suggests that

registrant’s clothing products contain a small amount of silk.”), and Murphy, Brill

and Sahner, Inc. v. N.J. Rubber Co., 102 USPQ 420 (Comm’r. Pat. 1954) (finding that

TOPFLITE for shoe soles conveys a different meaning than FLITE TOP for hosiery),

Applicant argues that its transposition of the component terms from the cited mark

create a difference sufficient to quell any likelihood of confusion. Brief, p. 8 (10

TTABVUE 12). However, unlike Akzona and N.J. Rubber, Applicant’s mark does not

create an appreciable different commercial impression from Registrant’s mark.

Above, we found the constituent terms FLORA and VITAL weak for or dietary and

nutritional supplements, but we found that Applicant had not demonstrated that a

mark comprised of a combination of these terms was weak. Indeed, none of the third-

party marks cited by Applicant combined FLORA and VITAL; the record indicates

that Applicant and Registrant have the only two such marks. As such, Applicant’s

VITAL FLORA mark is closer to Registrant’s FLORAVITAL mark than any of the

other marks.

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Serial No. 87455242

Because similarity is determined based on the marks in their entireties, our

analysis is not predicated on dissecting the marks into their various components. In

re C.H. Hanson Co., 116 USPQ2d 1351, 1353 (TTAB 2015). We focus on the

recollection of the average consumer who retains a general rather than a specific

impression of trademarks. In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB

2016). And we bear in mind that where, as here, goods are legally identical in part,

“the degree of similarity necessary to support a conclusion of likely confusion

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

USPQ2d 1698, 1700 (Fed. Cir. 1992).

Applicant also argues that its “use of the term VITAL is akin to the use of a house

mark . . . .” Brief, p. 7, n.3 (10 TTABVUE 11). In general the use of a house mark does

not obviate confusion. In re Mighty Leaf Tea, 94 USPQ2d at 1260. “The exceptions to

this general rule are where 1) the marks in their entireties convey significantly

different commercial impressions, or 2) the matter common to the marks is not likely

to be perceived by purchasers as distinguishing source because it is merely

descriptive or diluted.” Gen. Mills Inc. v. Fage Dairy Processing Indus. SA, 100

USPQ2d 1584, 1602 (TTAB 2011). Neither of these exceptions apply here since the

marks convey the same or similar commercial impression, and, although the

constituent terms have been shown to be weak, the unique combination of VITAL and

FLORA in a single mark has not been shown to be merely descriptive or diluted.

Similarity in any one of the elements of sound, appearance, meaning, or

commercial impression is sufficient to support a determination of likelihood of

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confusion. See, e.g., Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156 USPQ 523,

526 (CCPA 1968); In re Mr. Recipe, 118 USPQ2d at 1089; Eveready Battery Co. v.

Green Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009). Because we find the marks

are similar in sound and appearance to the extent they contain identical constituent

words, and that they convey the same or similar commercial impressions, the first du

Pont factor weighs in favor of a likelihood of confusion.

D. Conditions of Purchase of the Goods

Applicant argues that “[p]et owners often view their pets as members of their

family and are inclined to exhibit a high degree of care in making decisions regarding

their pet’s health.” Brief, p. 11 (10 TTABVUE 15).

It is “well-settled that even careful purchasers who are knowledgeable as to the

goods are not necessarily knowledgeable in the field of trademarks or immune to

source confusion arising from the use of confusingly similar . . . marks on or in

connection with the goods.” In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1204

(TTAB 2009). Marks for all types of goods, including dietary supplements for pets,

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

side-by-side comparison,’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082,

1085 (Fed. Cir. 2014), and “[h]uman memories even of discriminating purchasers . . .

are not infallible.” Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d

1403, 168 USPQ 110, 112 (CCPA 1970). See also In re Research & Trading Corp., 793

F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (“That the relevant class of buyers may

exercise care does not necessarily impose on that class the responsibility of

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distinguishing between similar trademarks for similar goods.”). Even though the

goods might be purchased with a heightened degree of care, the fourth du Pont factor

only slightly supports a finding that confusion is not likely.

E. Summary and Balancing the Factors

We have found that the goods, which might be purchased with a heightened

degree of care, are in-part legally identical and are presumably sold through the same

channels of trade and to the same classes of purchasers. Although the constituent

terms FLORA and VITAL have been shown to be weak for dietary and nutritional

supplements, the cited mark FLORAVITAL which combines those terms has not been

shown to be weak. When compared in their entireties, Registrant’s mark

FLORAVITAL and Applicant’s mark VITAL FLORA are similar in sound and

appearance to the extent they contain identical constituent words, and they convey

the same or similar commercial impressions. On balance, we find confusion is likely.

II. Decision

The refusal to register Applicant’s mark VITAL FLORA is affirmed.

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