Innocent Health LTD

This Opinion Is Not a
Precedent of the TTAB
Mailed: December 8, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Innocent Health LTD
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Serial No. 97528277
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Marek Krizka and Rohini Pandit, of Sparring Legal LLP, for Innocent Health LTD
Scott Bibb, Trademark Examining Attorney, Law Office 109,
Michael Kazazian, Managing Attorney.
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Before English, Thurmon and Elgin, Administrative Trademark Judges.
Opinion by Thurmon, Administrative Trademark Judge:
Innocent Health LTD (“Applicant”) seeks registration on the Principal Register of
the mark NOVOMINS NUTRITION (NUTRITION disclaimed) in standard
characters, for “Food supplements in the form of gummies for general health and well-
being; Gummy vitamins,” in International Class 5.1 The Trademark Examining
1 Application Serial No. 97528277 was filed on August 1, 2022, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging first use in September, 2019 and first use in
commerce in February, 2021. Because no specific date of first use in commerce was asserted
in the application, we treat the asserted first use in commerce date as February 28, 2021, the
last day of the month given in the application. TRADEMARK MANUAL OF EXAMINING
PROCEDURE (TMEP) § 903.06 (Nov. 2025) (“When a month and year are given without a
specified day, the date presumed for purposes of examination is the last day of the month.”).
Citations to briefs refer to TTABVUE, the Board’s online docketing system. The number
preceding TTABVUE corresponds to the docket entry number; the number(s) following

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Attorney issued a final refusal of registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), finding a likelihood of confusion, based on the registered
standard character mark NOVOMIN for “Food supplements; Nutritional
supplements,” in International Class 5.2 The appeal is briefed and ready for final
decision. We affirm the refusal to register.
Section 2(d) – Applicable Law
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on a likelihood of confusion. In re E. I. DuPont
de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”), cited in B&B
Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138 (2015); see also In re Majestic
Distilling Co., 315 F.3d 1311, 1314 (Fed. Cir. 2003). We must consider each DuPont
factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912
F.3d 1376, 1378-79 (Fed. Cir. 2019). “Whether a likelihood of confusion exists between
an applicant’s mark and a previously registered mark is determined on a case-by-case
basis, aided by application of the thirteen DuPont factors.” Omaha Steaks Int’l, Inc.
v. Greater Omaha Packing Co., 908 F.3d 1315, 1318 (Fed. Cir. 2018). When analyzing
these factors, the overriding concerns are not only to prevent buyer confusion as to
the source of the goods or services, but also to protect the registrant from adverse
TTABVUE refer to the page number(s) of that particular docket entry. See Turdin v.
Trilobite, Ltd., 2014 TTAB LEXIS 17, *6 n.6. Citations to the prosecution file refer to the
USPTO’s Trademark Status & Document Retrieval (“TSDR”) system.
2 Registration No. 3381669, issued February 12, 2008. The Registration has been renewed.

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commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil
Co., 992 F.2d 1204, 1208 (Fed. Cir. 1993).
“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). Varying
weights may be assigned to each DuPont factor depending on the evidence presented.
See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed. Cir. 2011);
Shell Oil, 992 F.2d at 1206 (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the goods or services. See In re i.am.symbolic, llc, 866 F.3d 1315,
1322 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156,
1164-65 (Fed. Cir. 2002)); In re Chatam Int’l Inc., 380 F.3d 1340, 1342 (Fed. Cir.
2004); 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 differences in the
marks.”).
Likelihood of Confusion – Analysis
Applicant and the Trademark Examining Attorney presented arguments under
DuPont factors one, two, three, four, six and eight. We address these factors in turn
below.

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A. Similarity of the Marks
To evaluate the similarity of the marks under the first DuPont factor, we consider
the marks in their entireties as to appearance, sound, connotation and commercial
impression. See, e.g., Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005) (citing 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, 2018 TTAB LEXIS 170, *13 (quoting
In re Davia, 2014 TTAB LEXIS 214, *4), aff’d mem., 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
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 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,
1368 (Fed. Cir. 2012). The focus is on the recollection of the average purchaser, who
normally “retains a general rather than a specific impression of marks.” In re
i.am.symbolic, llc, (Ser. No. 85916778) 2018 TTAB LEXIS 281, *11.
Applicant’s mark and the cited mark are similar, with the only differences being
that Applicant uses a plural version of the term “NOVOMINS” and adds the
descriptive term “NUTRITION.” These two distinctions are of little significance, as
consumers are likely to focus on and recall the term “novomin” from both marks. As

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to Applicant’s mark, it is often observed that the first element of a mark tends to play
a dominant role in the mark’s commercial impression. See In re Detroit Athletic Co.,
903 F.3d 1297, 1303 (Fed. Cir. 2018) (finding “the identity of the marks’ two initial
words is particularly significant because consumers typically notice those words
first”); Palm Bay Imps., 396 F.3d at 1372-73; Presto Prods., Inc. v. Nice-Pak Prods.
Inc., 1988 TTAB LEXIS 60, *8 (“it is often the first part of a mark which is most likely
to be impressed upon the mind of a purchaser and remembered”). In the context of
this appeal, consumers’ tendency to focus on and recall the first part of a trademark
means the added word “nutrition” in Applicant’s mark provides little distinction from
the cited mark NOVOMIN.
Applicant argues that the Trademark Examining Attorney placed too little
emphasis on Applicant’s mark as a whole, which includes the word “nutrition” as the
second element of the mark. 8 TTABVUE 7. While it is true that consumers will see
the full mark, it is also true that “in articulating reasons for reaching a conclusion on
the issue of confusion, there is nothing improper in stating that, for rational reasons,
more or less weight has been given to a particular feature of a mark, provided the
ultimate conclusion rests on consideration of the marks in their entireties.” In re Nat’l
Data Corp., 753 F.2d 1056, 1060 (Fed. Cir. 1985) (quoted by Detroit Athletic Co., 903
F.3d at 1305).
The word “nutrition” is descriptive of Applicant’s goods, as evidenced by
Applicant’s disclaimer of this term. Such a term does not distinguish one source of
nutritional goods from another, and for that reason, consumers are much less likely

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to recall or rely on the word “nutrition” to identify and distinguish Applicant’s goods
from those of others. The Trademark Examining Attorney was correct to place less
weight on this term in Applicant’s mark, because consumers are likely to do the same.
Applicant also argues that the plural version of NOVOMINS as used in its mark
is significantly different from the singular NOVOMIN in the cited mark. 8 TTABVUE
6. The distinction between a singular and plural version of a word “is not sufficient
to prevent likely confusion.” In re Wenger Corp., 2022 TTAB LEXIS 48, *4. See also
Wilson v. Delaunay, 245 F.2d 877, 878 (CCPA 1957) (“there is no material difference,
in a trademark sense, between the singular and plural forms of the word ‘Zombie’ and
they will therefore be regarded here as the same mark”).
There is no evidence of any specific meaning for either mark, and we find that
consumers are likely to attribute the same meaning to both marks. We further find
that both marks are likely to create the same commercial impression in the market.
The marks are similar in every respect and this fact increases the likelihood of
confusion.
B. Similarity of the Goods
We evaluate the second DuPont factor based on the goods identified in the
Application and the Cited Registration. See Stone Lion Cap. Partners, LP v. Lion Cap.
LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Comput.
Servs., Inc., 918 F.2d 937, 942 (Fed. Cir. 1990). It is sufficient for a finding of
likelihood of confusion if relatedness is established for any goods or services identified
in a particular class in an application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp.,
648 F.2d 1335, 1336 (CCPA 1981); see also Double Coin Holdings Ltd. v. Tru Dev.,

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(Pro. No. 92063808) 2019 TTAB LEXIS 347, *18; In re Aquamar, Inc., (Ser. No.
85861533) 2015 TTAB LEXIS 178, *9 n.5. In addition, the goods need only be
sufficiently related that a relevant consumer would be likely to assume, upon
encountering goods marketed under the marks at issue, that the goods originate from,
are sponsored or authorized by, or are otherwise connected to the same source. See
Black & Decker Corp. v. Emerson Elec. Co., (Pro. No. 91158891) 2007 TTAB LEXIS
50, *25-26.
The Cited Registration identifies “Food supplements; Nutritional supplements.”
Applicant identifies “Food supplements in the form of gummies for general health
and well-being; Gummy vitamins,” which is a narrower form of the “food
supplements” recited in the cited Registration. In other words, Applicant’s goods are
fully subsumed by the “food supplements” identified in the cited Registration. The
goods are, therefore, identical for the purposes of our analysis. See In re Hughes
Furniture Inds., 2015 TTAB LEXIS 65, *10 (“Applicant’s broadly worded
identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified
‘residential and commercial furniture.’”); In re Jump Designs LLC, 2006 TTAB LEXIS
209, *14-15 (same).
Applicant argues that the goods are distinct in the market. 8 TTABVUE 8-9. This
argument ignores the rule stated above that we must limit our analysis to the
identifications in the Application and cited Registration. Stone Lion, 746 F.3d at
1323. Marketplace limitations on the goods that are not reflected by the
identifications are irrelevant to the likelihood of confusion analysis in the context of

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an application to register a mark. The goods are legally identical and that increases
the likelihood of confusion.
C. Trade Channels
The cited Registration broadly identifies “food supplements” with no restrictions
or limitations. We, therefore, must presume these goods flow through all the normal
trade channels for “food supplements.”
Where the goods in the application at issue and/or in the
cited registration are broadly identified as to their nature
and type, such that there is an absence of any restrictions
as to the channels of trade and no limitation as to the
classes of purchasers, it is presumed that in scope the
identification of goods encompasses not only all the goods
of the nature and type described therein, but that the
identified goods are offered in all channels of trade which
would be normal therefor, and that they would be
purchased by all potential buyers thereof.
In re Jump Designs, 2006 TTAB LEXIS at *13-14; see also In re Viterra Inc., 671 F.3d
1358, 1362 (Fed. Cir. 2012) (“it is well established that, ‘absent restrictions in the
application and registration, [identical] goods and services are presumed to travel in
the same channels of trade to the same class of purchasers’”) (quoting Hewlett-
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268 (Fed. Cir. 2002)). Because
the Application identifies goods that overlap with those identified in the cited
Registration, as we explained above, this presumption applies with equal force to
Applicant’s goods. The trade channels, therefore, are presumed to overlap.
Applicant argues that the trade channels differ in the market, with Registrant
allegedly selling its goods only through its own website and on amazon.com. 8
TTABVUE 9-10. As we noted with respect to the comparison of the goods, this

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argument ignores the well-established rule that we must evaluate the trade channels
based on the identification of goods in the Application and cited Registration. As there
is no limitation in the cited Registration, we are compelled to presume that
Registrant’s goods flow through all the normal trade channels for “food supplements.”
The trade channels, therefore, overlap, making confusion more likely.
D. Customers and Purchasing Care
The fourth DuPont factor considers the likely care exercised by relevant
consumers. DuPont, 476 F.2d at 1361 (“The conditions under which and buyers to
whom sales are made, i.e. “impulse” vs. careful, sophisticated purchasing”). Applicant
argues that the customers of these goods are careful, and further, that the consumers
do not overlap. 8 TTABVUE 9. These arguments again ignore the identifications in
the Application and cited Registration, which contain no limitations as to consumers
or method of marketing the goods. The category of “food supplements” is quite broad
and there is no evidence that consumers of such goods consistently exercise care when
purchasing these goods.
At best, we find this is a mixed market, with some consumers making careful
purchasing decisions and some making impulse decisions. In this context, we are
required to base our decision “on the least sophisticated potential purchasers.” Stone
Lion, 746 F.3d at 1325. We lack sufficient evidence to identify the likely purchasing
practices of the “least sophisticated potential purchasers” of “food supplements,” and
therefore treat the fourth DuPont factor as neutral.

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E. The Strength or Weakness of the Cited Mark
Applicant argues that the cited mark is weak because there is evidence of third-
party registrations of “NOVOMIM-formative marks.” 8 TTABVUE 11-14. To support
this argument, Applicant identifies three registrations by third parties for similar
goods. The existence of three registrations is insufficient to show any pattern of use
or registration that would provide us with dictionary-like evidence of the meaning of
the term “novomin” within the market. Juice Generation, Inc. v. GS Enters. LLC, 794
F.3d 1334, 1338-39 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur Draussen GmbH
v. New Millennium Sports, S.L.U., 797 F.2d 1363, 1373 (Fed. Cir. 2015).
In addition, the three third-party marks Applicant identifies differ from the cited
mark. The marks are NOVOMIND, NOVOMINO, and NOVOS (plus design) for
dietary or nutritional supplements. The NOVOS mark is too different to provide
meaningful information on what the term NOVOMIN means to relevant consumers,
leaving only two third-party registrations of somewhat similar marks for similar
goods. This third-party evidence falls far short of what is needed to show conceptual
weakness of the cited NOVOMIN mark.
We also note that the cited mark was registered without a showing of acquired
distinctiveness, meaning the NOVOMIN mark is presumed to be inherently
distinctive. Brooklyn Brewery Corp. v. Brooklyn Brew Shop, LLC, 17 F.4th 129, 146
(Fed. Cir. 2021) (a mark registered on the Principal Register without a showing of
acquired distinctiveness is presumed to be inherently distinctive). We find the cited

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mark is arbitrary for “food supplements” and is a conceptually strong mark, yet
another fact that increases the likelihood of confusion.
F. The Absence of Actual Confusion Evidence
Applicant argues that the marks have “coexist[ed] in the US marketplace for over
four years without any known instances of actual confusion.” 8 TTABVUE 10. This
argument is somewhat misplaced, because an appeal of a refusal to register a mark
is an ex parte proceeding. That means the owner of the cited Registration is not a
party and we simply cannot know whether the Registrant has evidence of actual
confusion. In re Majestic Distilling Co., 315 F.3d 1311, 1317 (Fed. Cir. 2003)
(“uncorroborated statements of no known instances of actual confusion are of little
evidentiary value” in an ex parte appeal). In addition, we have insufficient evidence
of the kind of marketplace circumstances that can lead to actual confusion. In re
Guild Mortg.¸ 912 F.3d at 1380-81 (suggesting that “ evidence of concurrent use of
the two marks for a particularly long period of time—over 40 years—in which the two
businesses operated in the same geographic market—southern California—without
any evidence of actual confusion” may be probative under the eighth DuPont factor,
even in an ex parte appeal). For these reasons, we place no weight on the eighth
DuPont factor, which considers the probative value of evidence of a lack of actual
confusion.
G. Conclusion: Weighing the Factors
The marks are similar and the goods are legally identical. The trade channels
overlap. The cited mark is conceptually strong. There is insufficient evidence to make

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a finding under the fourth DuPont factor, and the lack of actual confusion evidence,
considered under the eighth DuPont factor, is not persuasive in this appeal. In short,
the four DuPont factors that are probative (the first, second, third and sixth factors)
all point toward a likelihood of confusion. The first two DuPont factors—the similarity
of the marks and the similarity of the goods—weigh very heavily in this appeal.
Confusion is likely and the Section 2(d) refusal must be affirmed.
Decision: The Section 2(d) refusal is affirmed.