NRG2GO Nutritional Supplements Brand Wins Trademark Opposition – Intellectual Property

United States: Nutritional supplement brand NRG2GO wins trademark opposition

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A recent trademark opposition decision shows that protecting your nutritional supplement brand is good for the whole brand health.

In Tom Miles vs. Five Star Gourmet Foods, Inc., the applicant (Five Star) sought to register the mark ENERGY2GO for fresh, packaged meals and snacks consisting primarily of vegetables, fruits, meats, cheeses and cereals in international classes 29 and 30. The opponent, Tom Miles, filed a notice of opposition on the basis of his earlier registrations of the trade marks NRG2GO and ENERGY 2 BURN for dietary and nutritional supplements for endurance sports, and nutritional supplements in the form of powdered foods under international class 5. The ground for opposition was likelihood of confusion within the meaning of Section 2(d) of the Trade Marks Act. To analyze whether there is a likelihood of confusion, the Board focused on a comparison between the Opponent’s NRG2GO registration and the Applicant’s ENERGY2GO Mark, since the NRG2GO Mark is closest to the Applicant’s Mark.

In ruling for the Opponent, table makes the following observations and findings:

  1. Key considerations. In the analysis of the thirteen likelihood of confusion factors, the board relied on the well-known rule that two key factors are similarity of marks and similarity of goods or services. In many cases, these factors alone can be ultimately persuasive. The Commission nevertheless analyzed the factors for which evidence was presented.

  2. Strength of the opponent’s mark. The fifth likelihood of confusion factor (opponent’s mark strength) was discussed. The strength of a brand is based on the inherent strength of the brand itself and its recognition in the market. Inherent strength is seen on a continuum, from fancy brands to generic brands. Market strength is based on evidence of sales, marketing expenditures, and other indices of consumer recognition that the public recognizes a brand as denoting a single source. Here, the Board found that the opponent’s mark NRG2GO, when used in connection with food and nutritional supplements, was suggestive. This means that he was considered relatively strong on his own. With respect to the market power of the Opponent’s mark, the Opponent submitted evidence of average annual sales of $3,600.00. Oppose presented no evidence of its advertising or marketing expenditures. The plaintiff submitted seven copies of web site pages showing the use of “energy-to-go” variants for nutritional supplements. Given the relatively small amount of sales (and the lack of evidence of marketing expenses), the Board concluded that the Opponent’s Mark was commercially weak.

  3. Similarity of brands and products. The Board observed that consumers familiar with the Opponent’s NRG2GO supplements may mistakenly believe that the Petitioner’s prepared meals or snacks under the Petitioner’s ENERGY2GO brand were a new product line of the Opponent. The Marks were also considered to look and sound similar, while conveying the same commercial impression. With respect to similarity of goods, the Opponent introduced numerous third party registrations which included goods of International Class 5 (Opponent’s class for its NRG2GO goods) and Classes 29 and 30 (Applicant’s class for its ENERGY2GO products). Third-party records that cover a number of different products suggest that the products come from a single source. That said, the international classification of goods alone has no bearing on a likelihood of confusion. The main consideration is whether the goods are identical or related. Based on the evidence presented, the Commission considered that dietary and nutritional supplements and food products can come from the same source.

  4. Trade channels. In this case, the description of the goods given by the parties did not include any limitation or restriction concerning their commercial channels and their categories of consumers. Therefore, in law, there is a presumption that the goods move through all the trade channels that would be normal for such goods. Moreover, it is presumed that they would be purchased by all potential consumers.

  5. Duration of coexistence. This likelihood of confusion factor takes into account real market conditions. As a general rule, if there is evidence on file and the coexistence between the subject marks has taken place for a long period of time without actual confusion, this could be conclusive. Here, the Board concluded that there was insufficient evidence on the record and therefore treated this factor as neutral.

Decision. The Commission upholds the opposition and the refusal to register the applicant’s mark. This was mainly based on the conclusion that the NRG2GO and ENERGY2GO marks were very similar and on the link between the products.

Editor’s note. A nutritional supplement brand for apparently unrelated products (nutritional supplements and pre-packaged foods) may nevertheless be linked for purposes of likelihood of confusion. Here, since the nutritional supplements were in the form of powdered foods and the Applicant’s Mark concerned prepared foods, this fact seemed to be determinative.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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