The USPTO refused to register the proposed mark NUNC for "Dietary supplements and nutritional supplements for promoting nutrition and health, excluding tablets and powdered mixes used to make beverages or drinks and excluding formulations for beauty enhancement" (emphasis supplied), finding confusion likely with the mark NUNC in slighlty stylized form, for "Cosmetics and cosmetic preparations; aromatic oils; air fragrancing preparations; fragrances and perfumery; skin soap; dentifrice." There was no question that the marks are confusingly similar, but what about the goods? Are they related? How do you think this came out? In re Your Gummy Vitamins LLC, Serial No. 90007282 (March 17, 2022) [not precedential] (Opinion by Judge George C. Pologeorgis).
Examining Attorney Khanh M. Le relied on "Internet evidence from approximately eleven online retailer websites demonstrating that a single entity commonly promotes and provides Applicant's goods and Registrant's goods under the same mark." Applicant Your Gummy contended that its identified goods are sufficiently narrow and different to avoid confusion, pointing to its exclusion of beauty formulations from the scope of its nutritional and dietary supplements.
Your Gummy next argued that the goods in the cited registration are not sold in the United States, but that was an impermissible collateral attack on the cited registration. The pointed out that "an abandonment or nonuse challenge would be appropriate in a cancellation proceeding, but it is not appropriate or permissible in this ex parte proceeding."
Your Gummy also maintained that the trade channels are different because registrant is a Japanese company whose business focuses on education, senior care services, and beauty salons, but only in Japan. The Board was unimpressed. "[B]ecause there are no limitations or restrictions in the trade channels or classes of purchasers of either Applicant's or Registrant's identification of goods, we must presume that the parties' respective goods are marketed in all normal trade channels for those goods and to all normal classes of purchasers for such goods, regardless of what any extrinsic evidence might show to be the actual trade channels and purchasers for the goods."
And so the Board affirmed the refusal.
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