IP Law Daily, TRADEMARK—TTAB: VINTAGE MUSCLE mark likely to be confused with VINTAGE BURN, (Oct 23, 2024)

By Kevin M. Finson

The applied-for mark VINTAGE MUSCLE and the registered mark VINTAGE BURN were used with related goods.

A nutritional supplements seller’s application to register the mark VINTAGE MUSCLE for supplements featuring anabolic precursors and pro-hormone formulations was properly rejected on the ground of likelihood of confusion with the registered mark VINTAGE BURN for nutritional supplements, the Trademark Trial and Appeal Board has held. The marks were similar, and the goods were in-part identical (In re Cratus Enterprises LLC, No. 90873360 (T.T.A.B. Oct. 9, 2024)).

Cratus Enterprises, LLC (Cratus) sought registration on the Principal Register of the standard character mark VINTAGE MUSCLE for use with “nutritional and health food supplements featuring anabolic precursor and pro-hormone formulations” in International Class 5. The Examining Attorney refused registration on the ground of likelihood of confusion with the registered mark VINTAGE BURN, for use with “dietary and nutritional supplements” in International Class 5. Cratus appealed. The Trademark Trial and Appeal Board (TTAB) considered the DuPont factors for which there was evidence of record.

Similarity of goods, channels of trade. Both the application and registration claimed use with “nutritional supplements,” although the application limited this to those featuring anabolic precursor and pro-hormone formulations. This meant that the goods were at least in part legally identical. Because the goods were in part legally identical, they were presumed to travel in the same channels of trade. These factors weighed heavily in favor of a likelihood of confusion.

Strength of registered mark. Cratus submitted evidence of third-party use of the marks on different goods, but the Board held that this was not relevant in light of the in-part identical nature of the goods at issue. Third party uses for items other than supplements did not show weakness of the registered mark, and there was very little evidence of third-party use which was particular to supplements. This factor was neutral.

Similarity of marks. The Board found that the shared word VINTAGE was the dominant element of both marks. The different portions of the marks, MUSCLE and BURN, had different sounds and meanings, but could be perceived by consumers as emanating from the same source because of the in-part identical nature of the goods. Overall, the marks were similar, and this factor weighed in favor of a likelihood of confusion.

Purchasing conditions and actual confusion. The Board accepted Cratus’ argument that purchasers of vitamins tended to be careful in product selection, but held that such care would not necessarily help avoid confusion where the goods are in-part identical. While there was no evidence of actual confusion in the record, there was likewise no showing of the extent of use of the marks and, thus, whether there was an opportunity for confusion to occur. These factors were neutral.

Balancing the factors, the Board affirmed the refusal to register.

The Case is Serial No. 90873360.

Judge: Cohen, W.

Attorneys: Preston P. Frischknecht (Project CIP) for Cratus Enterprises LLC d/b/a Vintage Muscle. Katina J. Joiner for the USPTO.

Companies: Cratus Enterprises LLC d/b/a Vintage Muscle

Cases: Trademark USPTO