FUL Foods B.V.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: September 23, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re FUL Foods B.V.
_____
Serial No. 98061361
_____
Manon Burns of Amin Wasserman Gurnani, LLP, for FUL Foods B.V.
Edward Germick, Trademark Examining Attorney, Law Office 102,
Mitchell Front, Managing Attorney.
_____
Before Lebow, Casagrande and Stanley,
Administrative Trademark Judges.
Opinion by Lebow, Administrative Trademark Judge:
Applicant, FUL Foods B.V., seeks to register the mark
(“WATER” disclaimed) on the Supplemental Register for “beverages containing
microalgae extracts for use as a dietary supplement” in International Class 5, and
“mineral and aerated waters; carbonated drinks, non-alcoholic; non-alcoholic drinks
containing fruit juices; fruit drinks and fruit juices; all the aforementioned products

Serial No. 98061361
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enriched with microalgae extract” in International Class 32.1 By requesting
amendment to the Supplemental Register, Applicant conceded that its mark is
merely descriptive. See In re Clorox Co., 578 F.2d 305, 308 (CCPA 1978) (“[T]his court
has referred to an application for Supplemental Registration of a particular term as
an admission of descriptiveness”); In re Future Ads LLC, No. 85483689, 2012 TTAB
LEXIS 287, at *11 (“a mark owner’s acceptance of registration on the Supplemental
Register constitutes an admission that the mark is descriptive at the time of
registration”).
The Trademark Examining Attorney ultimately refused registration under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s
mark, as used in connection with the proposed goods, so resembles the following
marks registered on the Principal Register as to be likely to cause confusion, to cause
mistake, or to deceive:2
1. BLUE WATER (standard characters) for a “nutritional supplement drink
containing aloe” in International Class 5;3
1 Application Serial No. 98061361 (“the Application”) was filed on June 27, 2023, under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a
bona fide intention to use the mark in commerce in connection with the identified goods,
seeking registration on the Principal Register. On March 22, 2024, Applicant filed an
amendment to allege use and requested amendment of the Application to the Supplemental
Register. See Office Action response of March 22, 2024. The Office accepted the amendment
to allege use on September 26, 2024. The application now seeks registration on the
Supplemental Register. The application states that “[t]he mark consists of the literal
elements ‘SPIRULINA BLU WATER’ in a stylized font, with the literal elements stacked on
top of one another beginning with ‘SPIRULINA’ on the top, ‘BLU’ in the center, and ‘WATER’
on the bottom.”
2 See April 22, 2024 Final Office Action. Citations to the prosecution file refer to the USPTO’s
Trademark Status & Document Retrieval (“TSDR”) system and identify the documents by
title, date, and page in the downloadable .pdf version.
3 Registration No. 7288713, issued January 23, 2024, in the name of Mannatech, Incorporated
(“the ’713 Registration”).

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2. BLUEWATER (standard characters) for “flavoured waters; aerated water;
soda water; still water; bottled drink water,” in International Class 32;4
3. for “waters, namely, bottled waters; waters, namely, bottled
natural spring waters; bottled waters; natural spring waters; bottled natural
spring waters,” in International Class 32;5 and
4. BLU (standard characters) for “waters, namely, bottled waters; waters,
namely, bottled natural spring waters; bottled waters; natural spring waters;
bottled natural spring waters,” in International Class 32.6
Applicant appealed;7 Applicant and the Trademark Examining Attorney filed
briefs;8 and the matter is ready for decision.9 For the reasons set forth below, we
affirm the 2(d) refusal as to both classes of the Application.
I. Likelihood of Confusion
“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 … of
the applicant, to cause confusion, mistake, or to deceive.’ 15 U.S.C. § 1052(d) (also
4 Registration No. 6230636, issued December 29, 2020, in the name of Bluewater Sweden AB.
5 Registration No. 4779938, issued July 28, 2015, in the name of Millennium Food Group
LLC; renewed.
6 Registration No. 6422627, issued July 20, 2021, in the name of Millennium Food Group LLC
(“the ’627 Registration”).
7 See 1 TTABVUE (Notice of Appeal). Citations in this opinion to the briefs and other
materials in the record refer to TTABVUE, the Board’s online docketing system. The number
preceding TTABVUE corresponds to the docket entry number, and any numbers following
TTABVUE refer to the page(s) of the docket entry where the cited materials appear.
8 See 6 TTABVUE (Applicant’s Brief); 8 TTABVUE (Examining Attorney’s Brief);
9 TTABVUE (Applicant’s Reply Brief).
9 Applicant filed a request for reconsideration in the meantime, see October 21, 2025 Office
Action, which was denied, 4 TTABVUE (Reconsideration Letter).

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called Section 2(d)).” In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir.
2023). “To determine whether a likelihood of confusion exists under section 2(d), the
Board considers the so-called DuPont factors in its analysis. In re E. I. Du Pont de
Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (reciting thirteen factors to be
considered, referred to as ‘DuPont factors’).” Id.
We consider each DuPont factor for which there is evidence and argument, In re
Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019), but “we focus our analysis on
those factors we find to be relevant.” ProMark Brands, Inc. v. GFA Brands, Inc., No.
91194974, 2015 TTAB LEXIS 67, at *26-27.10 “The weight given to each factor
depends on the circumstances of each case.” Charger Ventures, 64 F.4th at 1381.
“Each case must be decided on its own facts and the differences are often subtle ones.”
Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973).
“In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the [goods].” Monster
Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *18 (citing Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976) (“The fundamental
inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods [and services] and differences in the marks.”)).
A. Focus on the ’713 and ’627 Registrations
We focus our likelihood of confusion analysis on the standard-character marks
10 As will be noted during the course of our analysis, Applicant focuses on alleged differences
between the compared marks under the first DuPont factor, and purported weaknesses of the
cited marks under the sixth DuPont factor, to the exclusion of all other factors.

Serial No. 98061361
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BLUE WATER and BLU in the ’713 and ’627 Registrations (collectively, the “cited
registrations”) because, of the marks cited by the Examining Attorney, they are
closest in appearance, sound, connotation and commercial impression to Applicant’s
mark when accounting for the respective goods. A conclusion that there is
a likelihood of confusion between Applicant’s mark and the marks in these two
registrations will suffice to affirm the Section 2(d) refusal for the goods identified in
Classes 5 and 32 of the Application. See In re Morinaga Nyugyo K.K., No. 86338392,
2016 TTAB LEXIS 448, at *7-8; In re Max Cap. Grp., No. 77186166, 2010 TTAB
LEXIS 1, at *4-5.
B. Similarity of the Goods
We begin with the second DuPont factor, which considers the “similarity or
dissimilarity and nature of the goods” described in the Application and cited
registrations. DuPont, 476 F.2d at 1361. The goods “need not be identical or even
competitive to find a likelihood of confusion.” In re OSF Healthcare Sys., No.
88706809, 2023 TTAB LEXIS 353, at *8 (quoting In re Country Oven, Inc., No.
87354443, 2019 TTAB LEXIS 381, at *4 (citations omitted)). “They need only be
‘related in some manner and/or if the circumstances surrounding their marketing are
such that they could give rise to the mistaken belief that [they] emanate from the
same source.’” Id. (quoting In re Country Oven, Inc., 2019 TTAB LEXIS 381, at *4-5
(quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368-69 (Fed.
Cir. 2012) (internal quotation omitted)). Moreover, the Examining Attorney “need not

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prove, and we need not find, similarity as to each product listed in the description of
goods.” Id. (citation omitted). “It is sufficient for a finding of likelihood of confusion if
relatedness is established for any item encompassed in the identification of goods in
a particular class in an application.” In re Ye Mystic Krewe of Gasparilla, No.
90522364, 2025 TTAB LEXIS 412, at *9 (citing Tuxedo Monopoly, Inc. v. Gen. Mills
Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981)).
Once again, the Application identifies
Beverages containing microalgae extracts for use as a dietary
supplement (Class 5), and
Mineral and aerated waters; carbonated drinks, non-alcoholic; non-
alcoholic drinks containing fruit juices; fruit drinks and fruit juices; all
the aforementioned products enriched with microalgae extract (Class
32);
the ’713 Registration identifies
Nutritional supplement drink containing aloe (Class 5); and
the ’627 Registration identifies
Waters, namely, bottled waters; waters, namely, bottled natural spring
waters; bottled waters; natural spring waters; bottled natural spring
waters (Class 32).
1. Class 5
Beginning with Class 5, we observe that Applicant’s “beverages containing
microalgae extracts for use as a dietary supplement” in Class 5 of the Application
overlap with the “nutritional supplement drink containing aloe” identified in the ’713
Registration. “The fact that they contain different secondary ingredients (microalgae
extracts vs aloe),” notes the Examining Attorney, “does not change the fact that the

Serial No. 98061361
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goods are both nutritional supplement drinks.”11 We agree that the goods overlap
because the beverages identified in the Application cover beverages that also contain
aloe and the beverages identified in the ’713 Registration cover beverages that also
contain microalgae extracts, and otherwise are related.
2. Class 32
Turning to Class 32, we find that Applicant’s “mineral and aerated waters” are
encompassed by the broad wording “bottled waters” in the ’627 Registration, which
are presumed to encompass all goods of the type described, including Applicant’s
more narrowly described “mineral and aerated waters,” and thus are related. See,
e.g., Sock It To Me, Inc. v. Fan, No. 91230554, 2020 TTAB LEXIS 201, at *24-25
(where there are no limitations in the identification, goods encompass “all goods of
the type identified, without limitation as to their nature or price”) (citation omitted).
Applicant, for its part, does not contest the Examining Attorney’s position that the
respective goods are related.
The second DuPont factor weighs strongly in favor of finding a likelihood of
confusion as to both classes of goods in the Application.
C. Similarity of Trade Channels and Classes of Customers
Under the third DuPont factor, we consider “the similarity or dissimilarity of
established, likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. We also
consider “[t]he … buyers to whom sales are made” under the fourth DuPont factor.
Id. Here, because neither the ’713 Registration nor the ’627 Registration has any
11 8 TTABVUE 10 (Examining Attorney’s Brief).

Serial No. 98061361
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limitations on channels of trade or classes of consumers for the identified goods, we
must presume that the overlapping goods will be offered in the same trade channels
to the same classes of consumers. See e.g., In re Detroit Ath. Co., 903 F.3d 1297, 1306
(Fed. Cir. 2018) (when there are no restrictions on channels of trade or classes of
consumers in the identifications of an application or registration, it is presumed that
the goods are sold in “all normal trade channels to all the normal classes of
purchasers”); In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (“it is well
established that, absent restrictions in the application and registration, goods and
services are presumed to travel in the same channels of trade to the same class of
purchasers.”) (quotation omitted).
As with the identification of goods, Applicant does not discuss the Examining
Attorney’s finding of relatedness as to trade channels or classes of customers.
These DuPont factors thus weigh heavily in favor of finding a likelihood of
confusion.
D. Similarity of the Marks
Under the first DuPont factor, we consider the similarity or dissimilarity of the
respective marks, taking into account their appearance, sound, connotation and
commercial impression. DuPont, 476 F.2d at 1361. “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Inn at St.
John’s, LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13 (citing In re Davia, No.
85497617, 2014 TTAB LEXIS 214, at *4), aff’d, 777 F. App’x 516 (Fed. Cir. 2019);
accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968) (“It

Serial No. 98061361
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is sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”) (citation omitted).
The proper test is not a side-by-side comparison, 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., 668 F.3d at 1368 (internal quotations omitted). We consider
the marks as a whole, while recognizing that more or less weight may be given to a
particular feature provided the ultimate conclusion rests on the marks in their
entireties. In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985).
1. Class 5
Recall that with respect to the goods in Class 5 of the Application, we are
comparing Applicant’s stylized mark to the standard-character mark
BLUE WATER in the ’713 Registration.
Looking first at Applicant’s mark, the most prominent feature is the stylized word
. It is significantly larger than the other two words and sits in the center
of the stacked arrangement. Because of its relative size and placement, is
the element that draws the eye and is most likely to be remembered. See e.g., In re
Aquitaine Wine USA, LLC, No. 86928469, 2018 TTAB LEXIS 106, at *10 (finding
LAROQUE in the applicant’s composite mark LAROQUE CITÉ DE CARCASSONNE
and Design the dominant element because it is displayed in “a large, bold typeface, it

Serial No. 98061361
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comprises the largest literal portion of the mark in terms of size, position and
emphasis.”). It is thus the dominant element of Applicant’s mark.
The other elements in Applicant’s mark are either merely descriptive or generic
for the identified goods. The smallest element in Applicant’s mark, “ ,” refers
to “a microscopic filamentous aquatic cyanobacterium (genus Spirulina, especially S.
platensis synonym Arthrospira platensis) that is sometimes cultivated for use as food
and especially as a dietary supplement,”12 and thus is descriptive of the identified
goods in Class 5. And in the mark is obviously generic for “the clear liquid
without color, smell, or taste that falls as rain and that is used for drinking,”13 and a
key aspect of Applicant’s water beverages. See In re 1800Mattress.com IP, LLC, 586
F.3d 1359, 1364 (Fed. Cir. 2009) (“any term that the relevant public understands to
refer to the genus … is generic”); In re Twenty-two Desserts, LLC, No. 86586833, 2019
TTAB LEXIS 269, at *4 (same). Applicant broadly agrees that is either
“generic, descriptive, or highly descriptive of the named goods.”14
Applicant asserts that “the overlapping term[] ‘BLUE/BLU’” in the marks is
“either descriptive or highly suggestive.”15 The Examining Attorney, however, asserts
that “[a]ll three words [in Applicant’s mark] are merely descriptive or generic”16
12 See the MERRIAM-WEBSTER DICTIONARY definition made of record with the December 22,
2023 Office Action, at TSDR 5.
13 See https://www.ldoceonline.com/dictionary/water (LONGMAN DICTIONARY), accessed
September 22, 2026, from which we take judicial notice.
14 6 TTABVUE 13 (Applicant’s Brief).
15 Id.
16 8 TTABVUE 11 (Examining Attorney’s Brief); see also Applicant’s March 22, 2024 Office
Action response, at TSDR 8.

Serial No. 98061361
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because “[A]pplicant stated that its goods contained SPIRULINA extract, are a shade
of blue, and include WATER as an ingredient.”17
We need not decide whether BLU, standing alone, is merely descriptive of the color
of spirulina. By requesting amendment to the Supplemental Register, Applicant
conceded that the mark as a whole is merely descriptive. Future Ads, 2012 TTAB
LEXIS 287, at *8. That concession is consistent with treating and
as descriptive or generic, and it undercuts Applicant’s claim that the term
in its mark is a distinctive, source-identifying element. Whatever the
precise placement of is on the distinctiveness spectrum, it remains the
visually dominant element of Applicant’s mark and is identical in sound and meaning
to BLUE in the cited mark. Furthermore, in English, “[a]n adjective usually comes
right before a noun,” e.g., “‘a red dress,’ [or] ‘fifteen people.’”18 therefore
reads as modifying in the cited mark, not as modifying the preceding
term .
Applicant’s contrary reading—that modifies rather than
19—is attorney argument, not evidence. See In re Ralph’s Famous Italian
Ices Franchise Corp., 2026 TTAB LEXIS 185, at *59 n.173.
17 8 TTABVUE 11 (Examining Attorney’s Brief).
18 See https://www.merriam-webster.com/dictionary/adjective (accessed September 22, 2026)
from which we take judicial notice.
19 6 TTABVUE 12.

Serial No. 98061361
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Applicant’s further contention that in its mark is dominant because it
is “distinct-looking” and “distinctly-pronounced [sic],” and is the “leading word” in its
mark, is also unavailing. “Distinctiveness” is a term of art in the field of trademark
law and “means that the primary meaning of the word, in this [] field, is as a
designation of source, rather than of a characteristic of the product.” In re Guaranteed
Rate, Inc., No. 87054820, 2020 TTAB LEXIS 265, at *29 (quoting Roselux Chem. Co.
v. Parsons Ammonia Co., 299 F.2d 855, 862 (CCPA 1962)). Applicant has not provided
any evidence of that here, so the term is not distinctive in the legal sense and is not
the dominant element in the mark. Applicant’s request to amend to the Supplemental
Register is a further concession that SPIRULINA is not source-identifying. Simply
being “distinct-looking” (emphasis added), or having a distinct pronunciation, in the
opinion of Applicant’s counsel, does not transform a merely descriptive term into one
that is source-identifying. See, e.g., In re Cordua Rests., Inc., 823 F.3d 594, 606 (Fed.
Cir. 2016) (stylization of an otherwise unregistrable term theoretically may render
the mark as a whole source-indicating if it is so distinctive that it “create[s] a separate
commercial impression over and above that made by the [unregistrable] term.”). That
Applicant’s mark is “distinguishable” from the cited marks is not the test, but rather
“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.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018)
and In re Bay State Brewing Co., No. 85826258, 2016 TTAB LEXIS 46, at *6 (each
quoting Coach Servs., 668 F.3d at 1356, 1369).

Serial No. 98061361
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Applicant decries that the Examining Attorney “failed to view” its mark “as a
whole mark” and “instead argued that the descriptive terms in Applicant’s mark are
less significant in terms of affecting a mark’s commercial impression.”20 It is,
however, both proper and rational to acknowledge the different parts of a mark that
are likely to have different impacts on consumers, and it is in the balancing of these
considerations that we evaluate the mark as a whole. See QuikTrip W., Inc. v. Weigel
Stores, Inc., 984 F.3d 1031, 1035 (Fed. Cir. 2021) (“It is not improper for the Board to
determine that, for rational reasons, it should give more or less weight to a particular
feature of the mark provided that its ultimate conclusion regarding the likelihood of
confusion rests on a consideration of the marks in their entireties.”) (cleaned up);
Viterra, 671 F.3d at 1362. “That a particular feature is descriptive or generic with
respect to the involved goods or services is one commonly accepted rationale for giving
less weight to a portion of a mark.” Nat’l Data, 753 F.2d at 1058-59, quoted in
QuikTrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 1035 (Fed. Cir. 2021). We have
not ignored . We have considered it as part of the mark as a whole. Because
it is at best highly descriptive of an ingredient, it receives less weight. The request to
amend to the Supplemental Register confirms that conclusion.
Applicant argues that an “even further point of difference” between its mark and
the mark BLUE WATER in the ’713 Registration is that “both marks use a different
spelling of ‘BLUE’ than Applicant’s ‘BLU,’ thus creating additional visual
20 Applicant’s Br., 6 TTABVUE 8.

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differences.”21 But we do not find this to be a meaningful difference. See, e.g., Contour
Chair-Lounge Co. v. Englander Co., 324 F.2d 186, 189 (CCPA 1963) (finding that
“‘Contur’ [is] but a slight misspelling of ‘Contour’”; confusion likely as between
CONTURFOAM for mattresses and box springs and CONTOUR for chairs). Implicit
in Applicant’s statement is an acknowledgement that while the terms may have
different spellings, they refer to the same thing. Applicant agrees that “the marks
share the words ‘BLUE/BLU’ and ‘WATER.’”22
Applicant argues that the marks have different connotations because the color
blue/blu in the respective marks mean different things.23 According to Applicant,
BLU in its mark “conveys its association of the color blue with Spirulina,
a type of blue-green algae,” whereas “the Registered Marks associate the color blue
with water itself, in other words, a commercial impression related to the clarity of the
purity of the water.” Applicant says “[t]his is further evidenced by the claimed goods
of the Registered Marks, which consist only of water, whereas Applicant’s goods
claimed [sic] ‘products enriched with microalgae extracts.’”24
As the Examining Attorney observes, however, “Applicant’s argument that the
consumer perception of the wording BLU WATER in its mark is somehow different
21 Id. at 10.
22 Id. at 12.
23 Id.
24 Id.

Serial No. 98061361
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than the wording BLUE WATER in the registrant’s mark is pure speculation as it is
not supported by any evidence.”25 Nor does Applicant explain why the color
BLUE/BLU grammatically modifies the word WATER in the BLUE WATER mark,
but, in Applicant’s mark, would instead modify the preceding term SPIRULINA, as
would be the case in Spanish or French. “Attorney argument is not evidence.” Ralph’s
Famous Italian Ices, 2026 TTAB LEXIS 185, at *59 n.173 (citing Icon Health and
Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017) (citation omitted)
and In re Simulations Publ’ns, Inc., 521 F.2d 797, 798 (CCPA 1975) (“Statements in
a brief cannot take the place of evidence.”) (citation omitted)).
Moreover, we must account for the fact that the cited BLUE WATER mark is
registered in standard characters, which means the owner may display it using the
exact same size and font as is used in Applicant’s mark, , for example:
,
in which case the likelihood of confusion between the marks is even stronger, as
consumers may perceive Applicant’s brand as a related line of waters offered by the
same company, this one including, or simply highlighting, the ingredient spirulina.
See Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a); see also Viterra, 671 F.3d at 1364-
65 (a standard character mark may be depicted in any font style, size, or color);
25 8 TTABVUE 7 (Examining Attorney’s Brief).

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SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir. 1983) (“the argument
concerning a difference in type style is not viable where one party asserts rights in
no particular display”).
“Those who comprise the purchasing public for [the] goods ordinarily must depend
upon their past recollection of marks to which they were previously exposed.”
Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981) (citation
omitted). Thus, “marks 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, 751
(Fed. Cir. 2014) (cleaned up; citation omitted).
For all the foregoing reasons, we find the marks very similar overall in
appearance, sound, connotation and commercial impression.
2. Class 32
We turn now to Class 32 of the application, where we are comparing Applicant’s
stylized mark to the standard-character mark BLU in the ’627
Registration.
The dominant element of Applicant’s mark is again . As discussed above,
it is significantly larger than the other wording and occupies the center of the stacked
design. Because of that size and placement, BLU is the element that draws the eye
and is most likely to be remembered. Aquitaine Wine, 2018 TTAB LEXIS 106, at *10.
The cited mark consists solely of the identical term BLU (in standard characters).
The marks therefore share the same dominant element.

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The remaining wording in Applicant’s mark does not distinguish the marks as to
source. is generic for bottled water and has been disclaimed.
identifies a key ingredient of the goods and is at best highly descriptive of them. As
discussed above, descriptive and generic matter receives less weight in the
comparison. Nat’l Data, 753 F.2d at 1058-59. Applicant’s request to amend the
composite mark to the Supplemental Register is consistent with that finding.
Consumers who know the cited BLU mark for bottled waters and later encounter
Applicant’s mark for waters enriched with microalgae extract may well
regard the latter as a related line of the former—BLU water that includes, or
highlights, the ingredient spirulina.
Applicant also argues, as it did in the BLUE WATER comparison, that because of
their differences, the marks are “plainly distinguishable.”26 But again, that is not the
test, which instead is “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., 668 F.3d at 1368.
Finally, we note, as we did in the previous comparison, that the cited BLU mark
is in standard characters. The owner of that mark may therefore display it using the
26 6 TTABVUE 7-8 (Applicant’s Brief). While we have considered the likelihood of confusion
cases cited by Applicant, we do not find the nature of their comparison of the marks applicable
here. We do not find that they offer helpful guidance in our analysis “because the critical facts
of different cases almost always differ substantially,” as they do here. In re Gen. Mills IP
Holdings II, LLC, No. 86757390, 2017 TTAB LEXIS 262, at *40.

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exact same font and stylizing that Applicant uses for its mark, e.g., . See
Viterra, 671 F.3d at 1364-65; Trademark Rule 2.52(a). This, again, serves to enhance
the likelihood that these marks will be confused as to their source.
In sum, notwithstanding Applicant’s addition of the smaller font of the wording
in Applicant’s mark that generically identifies Applicant’s waters, and the
even smaller term that identifies a key ingredient in Applicant’s waters, the
marks are quite similar.
The first DuPont factor weighs strongly in favor of finding a likelihood of
confusion.
E. Strength of the Cited Marks / Third-Party Evidence
The sixth DuPont factor considers “the number and nature of similar marks in
use on similar goods.” DuPont, 476 F.2d at 1361. Evidence of third-party use of
similar marks on similar goods may show that a mark is relatively weak and entitled
to a narrower scope of protection. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 1373 (Fed. Cir. 2005). Third-party
registrations may be relevant in a different way: they can show, in the manner of a
dictionary, that a term has a normally understood descriptive or suggestive meaning
and is therefore conceptually weak. Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1364
(Fed. Cir. 2023); Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 1373-74 (Fed. Cir. 2015); Juice Generation,
Inc. v. GS Enters. LLC, 794 F.3d 1334, 1338-39 (Fed. Cir. 2015).
Applicant argues that BLUE/BLU and WATER are conceptually weak because of

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“the massive number of marks containing ‘BLUE’ and/or ‘WATER’ in Class 032.”27
It submitted a chart of thirteen third-party registrations in Class 32 that, it says,
incorporate both terms.28 Relying on Spireon and Juice Generation, Applicant
contends that consumers have been conditioned to distinguish such marks by small
differences, so the addition of SPIRULINA and the stylization of Applicant’s mark
are enough to avoid confusion.29 Applicant submitted no third-party registrations in
Class 5, and no evidence of third-party use in the marketplace.
The Examining Attorney argues, in response, that the evidence does not show a
crowded field for the combinations actually at issue.30 Of the thirteen registrations,
he argues, at most two—BLUEWATER (Registration No. 4250794) and SKY BLUE
WATERS (Registration No. 5317426)—use BLUE and WATER together in a way that
approaches the cited marks; BLUEWATER (Reg. No. 4250794) is for beer, not water
or dietary supplements; and SKY BLUE WATERS (Reg. No. 5317426) was cancelled
on May 10, 2024.31 The remaining marks, he contends, either separate the words, add
distinctive matter, or create a different commercial impression (for example,
BLUEWATER FARMS as a place name).32 He further argues that even if BLUE is
weak, the spelling BLU is not shown to be weak, and that a mark remains entitled to
27 6 TTABVUE 13.
28 Id. at 13-15.
29 Id. at 14-16; 8 TTABVUE 5-7 (Examining Attorney’s Brief).
30 8 TTABVUE 8-9.
31 Id.
32 Id.

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protection against a similar mark for closely related goods (citing King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1401 (CCPA 1974)).33
We agree with the Examining Attorney that Applicant’s evidence does not
establish that the cited marks are so weak that confusion is unlikely.
First, there is no third-party evidence at all as to Class 5. Applicant’s chart is
confined to Class 32. Nothing in the record shows that BLUE WATER for a
nutritional supplement drink is a weak or crowded term. The sixth factor is therefore
neutral as to the ’713 Registration.
Second, as to Class 32, the evidence consists only of third-party registrations, not
use. Registrations are competent to show conceptual weakness. They are not a
substitute for the kind of marketplace-use evidence that supported the findings of
commercial weakness in Juice Generation and Jack Wolfskin. Applicant has not
shown that consumers encounter a throng of BLUE/BLU WATER marks in the
marketplace for bottled waters.
Third, even as conceptual-weakness evidence, the registrations are of limited
probative value. Several do not use BLUE and WATER as a unit. BLUE HAWAII
PURIFIED WATER, W BLUE LABEL WORLD WATER WAREHOUSE, NAYAM
BLUE PURIFIED DRINKING WATER, PANAMA BLUE RAINFOREST PURE
SPRING WATER, and BLUME HONEYWATER place additional distinctive or
geographically descriptive matter between or around the shared terms and create
different commercial impressions. BLUEWATER FARMS and BLUEWATER
33 Id. at 9.

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FARMS CRANCRAFTED suggest a place or farm, not the combination BLUE
WATER as used in the cited mark. BORN IN THE LAND OF SKY BLUE WATERS
and FROM THE LAND OF SKY BLUE WATERS are slogans. BLUEWATER for beer
is for different goods. And a cancelled registration has no probative value other than
to show that it once issued. Made in Nature, LLC v. Pharmavite LLC, No. 91223352,
2022 TTAB LEXIS 228, at *31. Applicant’s contention that BLUEWATER FARMS is
as close to BLUE WATER as Applicant’s mark is to the cited marks34 is unpersuasive.
FARMS is distinctive additional matter. SPIRULINA is not.
What remains is not the “massive number” of similar marks Applicant describes.
It is a handful of composite registrations that share one or both of two common words,
usually in a different order or with substantial additional matter. That is not the
showing contemplated by Spireon or Juice Generation. See, e.g., Specialty Brands,
Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 675 (Fed. Cir. 1984) (“Applicant
introduced evidence of eight third-party registrations for tea which contain the word
‘SPICE’, five of which are shown to be in use. None of these marks has a ‘SPICE
(place)’ format or conveys a commercial impression similar to that projected by the
SPICE ISLANDS mark, and these third-party registrations are of significantly
greater difference from SPICE VALLEY and SPICE ISLANDS than either of these
two marks from each other.”).
We also are not persuaded that the specific term BLU—the sole element of the
’627 Registration and the dominant element of Applicant’s mark—has been shown to
34 9 TTABVUE 5 (Applicant’s Reply Brief).

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be weak. Applicant’s chart is built on BLUE, not BLU. The Examining Attorney’s
observation that Applicant and the owner of the ’627 Registration appear to be the
users of the BLU spelling for water35 is unrebutted by any registration or use of BLU
(as opposed to BLUE) for bottled waters.
Applicant’s concession that its own mark is merely descriptive does not establish
that the cited Principal Register marks BLUE WATER and BLU are weak. Those
registrations are entitled to the statutory presumptions of Section 7(b). 15 U.S.C.
§ 1057(b). Thus, even if BLUE WATER and BLU are somewhat suggestive, they
remain entitled to protection against a highly similar mark used on overlapping
goods. King Candy, 496 F.2d at 1401.
The sixth DuPont factor is neutral as to both classes.
F. Conclusion
We have considered all of the evidence and arguments of record. Four DuPont
factors weigh strongly in favor of a likelihood of confusion as to both classes.
Applicant’s mark and the cited marks BLUE WATER and BLU are highly similar.
The goods overlap with, or are legally encompassed by, the identifications in the cited
registrations, and they are presumed to travel in the same channels of trade to the
same classes of customers. The sixth DuPont factor is neutral. Applicant’s third-party
registration evidence does not show that the cited marks are so weak that confusion
is unlikely.
On this record, consumers familiar with BLUE WATER for a nutritional
35 8 TTABVUE 9 (Examining Attorney’s Brief).

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supplement drink, or BLU for bottled waters, who later encounter for
overlapping goods are likely to believe the goods come from, or are affiliated with, the
same source.
Decision: The refusal to register under Section 2(d) is affirmed.