Vitasoy International Holdings Limited v. Robert Latchman

This Opinion is Not a
Precedent of the TTAB
Mailed: December 10, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Vitasoy International Holdings Limited
v.
Robert Latchman
_____
Opposition No. 91293203
_____
Suzanne Hengl and Julia Tortora of Baker Botts LLP,
for Vitasoy International Holdings Limited.
Morris E. Turek of YourTrademarkAttorney.com,
for Robert Latchman.
_____
Before Heasley, Cohen, and Stanley,1
Administrative Trademark Judges.
Opinion by Stanley, Administrative Trademark Judge:
On Request for Reconsideration
Robert Latchman (“Applicant”) seeks registration on the Principal Register of the
standard-character mark VITA GINGER (with “GINGER” disclaimed) for “Tea; Tea-
1 Administrative Trademark Judge Myles, who authored the Board’s decision issued on July
29, 2025, has resigned from the Board. Administrative Trademark Judge Wendy Cohen has
been substituted for Judge Myles.

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based beverages; Ginger tea; Herbal tea; Instant tea” in International Class 30.2
Vitasoy International Holdings Limited (“Opposer”) opposed registration of
Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),
alleging a likelihood of confusion.3 Opposer relied on six registrations for marks
consisting of or containing the element VITA or the Chinese characters for VITA,
including Registration No. 1833973 for the mark VITA in typeset form4 for “tea
drinks” in International Class 30 (“the ’973 Registration”).5 Opposer also relied on
alleged common law rights in the same marks.6
On November 14, 2024, the parties submitted an ACR stipulation to resolution of
this proceeding, which the Board accepted without modification.7 The parties’ ACR
submission included the following stipulations:
• Opposer has entitlement to a statutory cause of action to bring this
proceeding;
2 Application Serial No. 98243641, filed October 27, 2023, based on an allegation of a bona
fide intent to use the mark in commerce under Trademark Act Section 1(b), 15 U.S.C.
§ 1051(b).
3 Notice of Opposition at ¶¶ 8-14, 1 TTABVUE 8-9.
Citations to the record in this decision 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.
4 “Standard character” marks were previously known as “typed” or “typeset” marks. See In re
Viterra Inc., 671 F.3d 1358, 1363 n.2 (Fed. Cir. 2012). A typed or typeset mark is the legal
equivalent of a standard character mark. TRADEMARK MANUAL OF EXAMINING PROCEDURE
(TMEP) § 807.03(i) (Nov. 2025).
5 Notice of Opposition at ¶¶ 3-4, 1 TTABVUE 6-7. The ’973 Registration issued May 3, 1994
and has been renewed.
6 Notice of Opposition at ¶ 5, 1 TTABVUE 7.
7 6 and 7 TTABVUE.

Opposition No. 91293203
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• Opposer has priority by virtue of its pleaded registrations; and
• Opposer’s goods in its ’973 Registration are “legally identical” to Applicant’s
goods and that the parties’ goods “could be sold in the same physical and
online outlets, in the same channels of trade, at the same price points, and
to the same types of ordinary consumers.”8
On July 29, 2025, we issued a final decision sustaining the opposition (the “Final
Decision”).9 We found that Applicant’s VITA GINGER mark for tea and tea-based
beverages is likely to cause confusion with Opposer’s standard-character mark VITA,
the subject to the ’973 Registration.10 In balancing the DuPont factors, we accepted
the parties’ stipulation that their goods are “legally identical, and could be marketed
and sold through the same channels of trade to the same class of consumers”, and
therefore, the second and third DuPont factors weighed heavily in favor of a likelihood
of confusion.11 We further found that Opposer did not establish significant
commercial strength for its pleaded marks, so they were not entitled to an expanded
scope of protection under the fifth DuPont factor.12 Although we found that the word
“VITA” is somewhat weakened, and accordingly entitled to a narrower scope of
8 6 TTABVUE 3.
9 Final Decision, 24 TTABVUE.
10 Id. at 2, 6-22.
11 Id. at 8. As noted, the parties stipulated that Opposer’s goods in its ’973 Registration are
“legally identical” to Applicant’s goods. The “tea-based beverages” recited in Applicant’s
application are broader than the “tea drinks” recited in the ’973 Registration. As such, when
balancing the DuPont factors in the Final Decision, we noted that the parties’ goods were
“identical in-part.” Using the phrase “identical in-part” instead of “legally identical” in the
Final Decision is a distinction that makes no difference to the outcome, as it is sufficient for
a finding of likelihood of confusion if similarity is established for any item encompassed by
the identification of services in a particular class. Tuxedo Monopoly, Inc. v. Gen. Mills Fun
Grp., 648 F.2d 1335, 1336 (CCPA 1981). In view of the parties’ stipulation, we refer to the
goods as “legally identical.”
12 Id. at 10-12.

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protection under the sixth DuPont factor, we did not find that the mark is so weak
that it may be distinguished by the addition of the generic or descriptive term
“GINGER,” particularly where the parties’ goods are legally identical.13 We found the
marks sufficiently similar such that the first DuPont factor weighed in favor of a
likelihood of confusion.14 Finally, we found no evidence of bad faith on the record and
therefore treated the thirteenth DuPont factor as neutral.15
Applicant timely filed a request for reconsideration of the Final Decision,16
Opposer timely filed a response,17 and Applicant timely filed a reply.18
The standard for reconsidering final decisions under Trademark Rule 2.129(c), 37
C.F.R. § 2.129(c), is set forth in Section 543 of the TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE (TBMP) (2025):
Generally, the premise underlying a request for rehearing,
reconsideration, or modification under 37 C.F.R. § 2.129(c)
is that, based on the evidence of record and the prevailing
authorities, the Board erred in reaching the decision it
issued. The request may not be used to introduce additional
evidence, nor should it be devoted simply to a reargument
of the points presented in the requesting party’s brief on
the case. Rather, the request normally should be limited to
a demonstration that, based on the evidence properly of
record and the applicable law, the Board’s ruling is in error
and requires appropriate change.
13 Id. at 12-18.
14 Id. at 18-21.
15 Id. at 21-22.
16 Applicant’s Req. for Reconsideration, 25 TTABVUE.
17 Opposer’s Response to Req. for Reconsideration, 26 TTABVUE.
18 Applicant’s Reply to Req. for Reconsideration, 27 TTABVUE.

Opposition No. 91293203
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In his request for reconsideration, Applicant asserts that our decision is in error
because: (1) we accorded limited weight to third‑party registrations for VITA-
formative marks that issued under Sections 44(e) or 66(a) of the Trademark Act, 15
U.S.C. §§ 1126(e), 1141(f), without evidence of use in commerce; and (2) we gave no
consideration to pending applications that were approved and published for
opposition and third‑party registrations that have since been canceled.19 Applicant
argues that “[e]ven if the marks in these third-party registrations and applications
were never in use in the United States (or are no longer in use in the United States),
that has no bearing whatsoever on the meaning and/or commercial impression of the
marks in relation to the products recited in the registrations and applications.”20
Applicant contends that “if the Board properly considers the disregarded third-party
registrations and applications submitted by Applicant, the Board should find that
‘VITA’ is extremely conceptually weak and deserving of only the narrowest scope of
protection afforded to the most highly suggestive marks registered on the Principal
Register.”21
Applicant further contends that we erred by only finding “some marketplace
weakness for VITA in connection with tea and related beverages.”22 Applicant argues
that he “submitted over 25 legitimate examples of third-party use of ‘VITA’ in
connection with relevant beverage products” and that this is “significantly more
19 Applicant’s Req. for Reconsideration, 25 TTABVUE 2.
20 Id. at 2-3.
21 Id. at 3 (emphasis in italics in original and in bold here).
22 Id. at 3 (emphasis in original).

Opposition No. 91293203
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third-party use evidence than what has been submitted in the vast majority of cases
since Juice Generation and Jack Wolfskin were decided by the CAFC[.]”23
In view of the evidence submitted, Applicant argues that we should have found
that “Opposer’s VITA mark is both exceedingly conceptually and commercially
weak such that ‘VITA’ by itself lacks almost any source-identifying capability” and
therefore we should have found the addition of the word “GINGER” in Applicant’s
mark sufficient to distinguish Applicant’s mark from Opposer’s VITA mark.24
We address Applicant’s arguments concerning the conceptual and commercial
weakness of Opposer’s marks in turn.
A. Whether the Board Erred In Finding “Some Conceptual
Weakness” Of The Term “VITA” In Connection With Opposer’s
Goods
At trial, Applicant submitted more than fifty third-party registrations and
applications and argued that Opposer’s VITA mark is conceptually weak and entitled
to only a narrow scope of protection.25 On closer review, Applicant’s evidence
included: twenty-six third-party registrations and approved applications for marks
incorporating “VITA” for tea and/or tea-based beverages;26 thirteen third-party
registrations for marks incorporating “VITA” for juices and/or fruit-based
beverages;27 three third-party registrations for marks incorporating “VITA” for milk
23 Id. at 3-4 (emphasis in italics in original and in bold here).
24 Id. at 4-5 (emphasis in italics in original and in bold here).
25 Applicant’s Br., 21 TTABVUE 11-13.
26 Applicant’s First Notice of Reliance (“NOR”), 10 TTABVUE.
27 Applicant’s Fourth NOR, 13 TTABVUE.

Opposition No. 91293203
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and/or imitation milk products;28 and nine third-party registrations for marks
incorporating “VITA” for coffee and/or water beverages.29 As of the date of the Final
Decision, one of the tea/tea-based registrations had been canceled and three were still
pending applications.30 In addition, seven of the tea/tea-based registrations and four
of the juice/fruit-based registrations had issued under Trademark Act Sections 44(e)
or 66(a) without evidence of use in commerce.31
The Final Decision accorded no weight to the pending applications and the
canceled registration, and accorded “little persuasive value” to the third‑party
registrations issued under Trademark Act Sections 44(e) and 66(a) without evidence
of use in commerce.32 Applicant contends this was error.33 It was not; it was consistent
with Board practice and precedent.
First, Applicant cites no authority supporting consideration of the three pending
applications in assessing the conceptual strength of the term “VITA” in Opposer’s
marks. As explained in the Final Decision, “[p]ending applications are only evidence
28 Applicant’s Seventh NOR, 16 TTABVUE.
29 Applicant’s Tenth NOR, 19 TTABVUE.
30 Final Decision, 24 TTABVUE 15 n.33 (identifying Registration No. 7441515 as having been
canceled); Applicant’s First NOR, 10 TTABVUE 90-95 (pending application Serial Nos.
98466480, 98121509, and 98522314).
31 Applicant’s First NOR, 10 TTABVUE 31-33, 38-43, 54-57, 64-67, 72-74, 86-89 (Registration
Nos. 6262129, 6093164, 6514971, 7483827, 6039363, 7404299, and 6166245); Applicant’s
Fourth NOR, 13 TTABVUE 16-26, 46-51 (Registration Nos. 7051412, 5974891, 5651883, and
5900196).
32 Final Decision, 24 TTABVUE 15 n.33.
33 Applicant’s Req. for Reconsideration, 25 TTABVUE 2-5.

Opposition No. 91293203
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that the application was filed.”34 See In re Team Jesus LLC, No. 88105154, 2020 WL
7312021, at *7 n.29 (TTAB 2020) (“an application would be evidence only of the fact
that it was filed, and therefore has no probative value”); Weider Publ’ns, LLC v. D&D
Beauty Care Co., No. 91199352, 2014 WL 343269, at *15 (TTAB 2014) (“[T]he third-
party applications submitted by applicant are of no probative value [in assessing the
strength of the mark]; they merely serve to show the filing of each application.”). The
Final Decision therefore appropriately accorded the pending applications no weight.
Second, Applicant likewise cites no authority supporting consideration of a
canceled third-party registration in assessing the conceptual strength of the term
“VITA” in Opposer’s marks. As explained in the Final Decision, “[a] cancelled or
expired registration has no probative value other than to show that it once issued.”35
See Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, at
*15 (TTAB 2021) (“A cancelled or expired registration has no probative value other
than to show that it once issued and it is not entitled to any of the statutory
presumptions of Trademark Act Section 7(b).”); In re Inn at St. John’s, LLC, No.
87075988, 2018 WL 2734893, at *3 (TTAB 2018) (“The existence of a cancelled
registration--particularly one cancelled for failure to provide a declaration of
continued use--does not tend to show that the cited mark is weak due to third-party
use”) (citation omitted); Bond v. Taylor, No. 91213606, 2016 WL 3771777, at *6
34 Final Decision, 24 TTABVUE 15 n. 33 (citing In re Phillips-Van Heusen Corp., No.
75664835, 2002 WL 523343, at *3 n.4 (TTAB 2002)).
35 Final Decision, 24 TTABVUE 15 n. 33 (citing In re Kysela Pere et Fils, Ltd., Ser. No.
77686637, 2011 WL 1399224, at *2 (TTAB 2011)).

Opposition No. 91293203
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(TTAB 2016) (“The existence of a cancelled registration and an abandoned application
does not establish that Opposer’s mark is weak.”). The Final Decision therefore did
not err in according the canceled registration no weight.
Third, Applicant again cites no authority supporting greater consideration for
third‑party registrations issued under Trademark Act Sections 44(e) or 66(a) without
evidence of use in commerce. The Final Decision cites Made in Nature, which directly
addressed this issue:
“[T]hird-party registration evidence that does not equate to
proof of third-party use may bear on conceptual weakness
if a term is commonly registered for similar goods or
services.” Tao Licensing, LLC v. Bender Consulting Ltd.,
125 USPQ2d 1043, 1057 (TTAB 2017); see also Tektronix,
Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694
(CCPA 1976) (third-party registrations “may be given some
weight to show the meaning of a mark in the same way that
dictionaries are used”). However, for a number of reasons,
we must discount the probative value of a majority of the
third-party registrations Applicant provided. …
Applicant’s evidence … contains third-party registrations
that are not based on use in commerce; but rather issued
under Trademark Act Sections 44(e) or 66(a), 15 U.S.C. §§
1126(e) or 1141f(a), based on the foreign trademark
owners’ home country registrations or as extensions of
protection to the United States based on an international
registration -- and have been registered for less than five
years. Accordingly, they lack probative value, and we
have not considered them. In re 1st USA Realty Pros.
Inc., 84 USPQ2d 1581, 1583 (TTAB 2007) (“To the extent
that the registrations are based on Section 44 or Section 66
of the Trademark Act, applicant's objection is well-taken.
Because these registrations are not based on use in
commerce they have no probative value in showing the
relatedness of the services....”).
Made in Nature, 2022 WL 2188890, at *13-14 (emphasis added). Applicant offers no
reason why this precedent does not apply here. Accordingly, we did not err in

Opposition No. 91293203
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according limited weight to the Section 44(e)/66(a) registrations lacking evidence of
use.
B. Whether the Board Erred In Finding “Some Marketplace
Weakness” Of The Term “VITA” In Connection With Opposer’s
Goods
Applicant also argues that we erred in assessing his third‑party use evidence,
noting that he submitted “significantly more third-party use evidence than what
has been submitted in the vast majority of cases since Juice Generation and Jack
Wolfskin were decided by the CAFC.”36 Applicant appears to contend that the sheer
number of marks he presented is enough to establish that Opposer’s VITA mark is
“exceedingly” commercially weak. The Final Decision identified and considered the
third-party uses of marks in the record that contain “VITA” in connection with tea
and related beverages (i.e., juices, imitation milk, coffee, coffee-based beverages, and
water-based beverages).37
The Federal Circuit has not prescribed or suggested a minimum number of
third‑party uses that qualifies as “extensive,” “ubiquitous,” or “considerable.” See
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, 1339 (Fed. Cir. 2015). Applicant’s third‑party use
evidence consists of individual Internet screenshots for the uses, without any showing
of the extent of use, promotional efforts, or consumer awareness. See In re Thomas,
36 Applicant’s Req. for Reconsideration, 25 TTABVUE 4 (emphasis in italics in original and
in bold here).
37 Final Decision, 24 TTABVUE 16-17.

Opposition No. 91293203
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No. 78334625, 2006 WL 1258862, at *6 (TTAB 2006) (absent evidence of duration or
exposure, the probative value of website evidence is minimal); Freedom Fed. Sav. &
Loan Ass’n v. Heritage Fed. Sav. & Loan Ass’n, 1981 WL 40429, at *5 (TTAB 1981)
(third‑party use, without more, is not probative of consumer perception); cf. 7‑Eleven
Inc. v. Wechsler, No. 91117739, 2007 WL 1431084, at *16 (TTAB 2007) (without
evidence of the extent of use and promotion, impact on consumer perceptions cannot
be assessed). Nonetheless, we credited Applicant’s evidence as showing some
marketplace weakness for the term “VITA” in connection with tea and related
beverages, and accordingly applied a narrower scope of protection to Opposer’s VITA
marks.38 We find no error in our analysis of commercial weakness.
C. Conclusion
The Final Decision properly concluded that Applicant’s third‑party registrations
and use evidence for VITA‑formative marks on identical or related goods
demonstrated some conceptual and marketplace weakness of the term as applied to
Opposer’s goods. On balance, however, that weakness did not outweigh the other
DuPont factors.
“The likelihood of confusion analysis considers all DuPont factors for which there
is record evidence but ‘may focus ... on dispositive factors, such as similarity of the
marks and relatedness of the goods.’” Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 1164 (Fed. Cir. 2002) (citations omitted); Han Beauty Inc. v. Alberto-Culver Co.,
236 F.3d 1333, 1336 (Fed. Cir. 2001) (“While it must consider each [DuPont] factor
38 Final Decision, 24 TTABVUE 17.

Opposition No. 91293203
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for which it has evidence, the Board may focus its analysis on dispositive factors, such
as similarity of the marks and relatedness of the goods.”). The first and second
DuPont factors are “key considerations” in the likelihood of confusion analysis. In re
Chatam Int’l Inc., 380 F.3d 1340, 1341-42 (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.”).
Applicant and Opposer stipulated that the parties’ goods are legally identical and
travel through the same channels of trade to the same consumers, and Applicant does
not challenge our finding that the second and third DuPont factors (similarity of goods
and trade channels) heavily favor a likelihood of confusion. In addition, the only
difference between Opposer’s standard‑character VITA mark and Applicant’s
standard‑character VITA GINGER mark is the addition of the generic or merely
descriptive term GINGER. We therefore correctly found the marks similar, and the
first DuPont factor (similarity of the marks) favored a likelihood of confusion. The
Board did not err in concluding that the first, second, and third DuPont factors
outweigh the sixth factor. The sixth DuPont factor is not dispositive, as “likelihood of
confusion, mistake or deception is to be avoided as much between weak marks as
between strong marks,” especially in connection with identical goods and very similar
marks. In re Colonial Stores, Inc., 1982 WL 52041, at *3 (TTAB 1982) (citing King
Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1401 (CCPA 1974)); see also
In re Max Capital Grp. Ltd., No. 77186166, 2010 WL 22358, at *4 (TTAB 2010)

Opposition No. 91293203
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(“[E]ven suggestive or weak marks are entitled to protection from the use of a very
similar mark for legally identical services.”).
For the reasons explained above, we find no error in the Final Decision and
therefore deny Applicant’s Request for Reconsideration.