Bio Innovations, LP

This Opinion is Not a
Precedent of the TTAB
Mailed: June 2, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Bio Innovations, LP
_____
Serial No. 98280174
Serial No. 98280818
(Consolidated)
_____
David W. Carstens of Carstens, Allen & Gourley, LLP for Bio Innovations, LP.
Amanda Ruiz, Trademark Examining Attorney, Law Office 132,
Brandon Marsh, Managing Attorney.
_____
Before Pologeorgis, Larkin, and Cohen,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
Bio Innovations, LP (“Applicant”) seeks registration on the Principal Register of
the standard-character mark REPREVE in two applications covering the following
goods and services:
(1) “Mineral supplements; Nutritional supplements;
Vitamin supplements; Dietary and nutritional
supplements” in International Class 5, and “On-line retail
store services featuring nutritional supplements, dietary
and nutritional supplements, vitamin supplements,
mineral supplements, essential oils, aromatic essential
oils, natural essential oils, essential oils for aromatherapy

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use, carrier oils for diluting essential oils, roller bottles sold
filled with essential oils, custom blending of essential oils
for aromatherapy use, electric essential oil diffusers, dried
herbs in powdered form, cooking products, namely,
culinary herbs, culinary seasonings, and seed and nut oils,
candles, natural sleep aids, massage oils, dry brushes, bath
salts” in International Class 35;1 and
(2) “Essential oils; Aromatic essential oils; Natural
essential oils; Essential oils for aromatherapy use; Carrier
oils for diluting essential oils; Roller bottles sold filled with
essential oils; Blended essential oils for aromatherapy use”
in International Class 5.2
The Trademark Examining Attorney has refused registration of Applicant’s mark
in both applications under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on
the ground that Applicant’s REPREVE mark so resembles the standard-character
mark REPRIEVE, registered on the Principal Register for “Dietary supplements;
Dietary supplements for increasing joint and muscle flexibility and mobility; reducing
joint and muscle inflammation, reducing joint and muscle stiffness and fatigue;
Nutraceuticals for the treatment of increasing joint and muscle flexibility and
mobility; reducing joint and muscle inflammation, reducing joint and muscle stiffness
and fatigue; Nutraceuticals for use as a dietary supplement for increasing joint and
muscle flexibility and mobility; reducing joint and muscle inflammation, reducing
joint and muscle stiffness and fatigue” in International Class 5, as to be likely to cause
1 Application Serial No. 98280174 (the “’174 Application”) was filed on November 21, 2023
under Section 1(b) of the Trademark Act, 15 U.S.C. § 1(b), based on Applicant’s allegation of
a bona fide intention to use the mark in commerce.
2 Application Serial No. 98280818 (the “’818 Application”) was filed on November 21, 2023
under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claimed
first use of the mark and first use of the mark in commerce at least as early as May 29, 2018.

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confusion when Applicant’s mark is used in connection with the goods and services
identified in Applicant’s two applications.3
When the Examining Attorney made the refusals final, Applicant appealed and
simultaneously requested reconsideration in both cases, which requests were denied.
Both appeals are fully briefed.4 Because the issues, records, and briefs in both appeals
are very similar, we consolidate the appeals sua sponte, In re S. Malhotra & Co., No.
79194076, 2018 WL 4660940, at *1 (TTAB 2018), and will decide them in this single
opinion. We affirm both refusals to register.
3 The cited Registration No. 5575108 (the “’108 Registration”) issued on October 2, 2018 and
has been maintained.
As discussed below, in the ’174 Application, the Examining Attorney also refused registration
on the ground that Applicant was required to amend its identification of services in Class 35.
Applicant ignored this refusal in its appeal brief in that appeal, but after the Examining
Attorney discussed it in her brief, Applicant finally accepted the Examining Attorney’s
suggested amended identification in Applicant’s reply brief. 9 TTABVUE 2. We have entered
the amendment in our descriptions of the Class 35 services in the ’174 Application in this
opinion. Because of Applicant’s belated amendment, the identification issue is no longer
before us.
4 Citations in this opinion to the briefs 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. In both appeals, Applicant’s appeal brief appears at 6 TTABVUE and its
reply brief appears at 9 TTABVUE, and the Examining Attorney’s brief appears at 8
TTABVUE.
In the appeal in the ’174 Application, Applicant filed its appeal brief on December 1, 2025,
after the due date of November 28, 2025. Applicant’s late-filed appeal brief was accompanied
by a “Motion to Accept Late-Filed Appeal Brief,” 6 TTABVUE 10-11, which stated that the
late filing was due to a clerical error in Applicant’s docketing system and was unintentional.
Id. at 10. The Examining Attorney did not object to the late filing of Applicant’s appeal brief
and responded to it on the merits. 8 TTABVUE. We grant Applicant’s motion to accept its
late-filed appeal brief in the appeal in the ’174 Application, and have considered the brief.

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I. Prosecution Histories and Records on Appeal5
The two applications at issue in these appeals were assigned to the same
Examining Attorney and were examined in parallel. We summarize their respective
prosecution histories below because they provide useful background to our disposition
of the appeals.
The ’174 Application
The ’174 Application was filed on the basis of Applicant’s allegation of a bona fide
intention to use the REPREVE mark in commerce in connection with the identified
Class 5 goods and Class 35 services. The Examining Attorney issued an Office Action
refusing registration based on the ’108 Registration, and requiring an amendment to
Applicant’s Class 35 services.6 The Examining Attorney made of record USPTO
electronic records regarding the cited registration,7 and third-party webpages that
she claimed showed “that the same entity commonly manufactures, produces, or
provides the relevant goods and/or services and markets the goods and/or services
under the same mark, the relevant goods and/or services are sold or provided through
the same trade channels and used by the same classes of consumers in the same fields
of use, and the goods and/or services are similar or complementary in terms of
purpose or function.”8
5 Citations in this opinion to the application records are to pages in the downloadable .pdf
version of the Trademark Status & Document Retrieval (“TSDR”) database of the United
States Patent and Trademark Office (“USPTO”).
6 July 3, 2024 Office Action at TSDR 1-7.
7 Id. at TSDR 8-9.
8 Id. at TSDR 4, 10-34.

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Applicant responded by arguing against the Section 2(d) refusal and requesting
clarification regarding the required amendment.9 Applicant made of record pages
from the website of the owner of the ’108 Registration depicting a product sold under
the REPRIEVE mark.10
The Examining Attorney then issued an Office Action making final both refusals
to register.11 The Examining Attorney made of record additional third-party
webpages that she claimed show “that the same entity commonly manufactures,
produces, or provides the relevant goods and/or services and markets the goods and/or
services under the same mark, the relevant goods and/or services are sold or provided
through the same trade channels and used by the same classes of consumers in the
same fields of use, and the goods and/or services are similar or complementary in
terms of purpose or function.”12
Applicant appealed and simultaneously requested reconsideration. In its Request
for Reconsideration, Applicant argued only against the likelihood of confusion refusal.
Applicant made of record pages from the website of the owner of ’108 Registration;13
pages from third-party websites displaying products sold under the cited REPRIEVE
mark;14 pages from Applicant’s website at bioinnovations.net;15 a page from the
9 January 3, 2025 Response to Office Action at TSDR 4-10.
10 Id. at TSDR 11-17.
11 February 19, 2025 Final Office Action at TSDR 1-8.
12 Id. at TSDR 9-78.
13 August 18, 2025 Request for Reconsideration at TSDR 10-15.
14 Id. at TSDR 16-19.
15 Id. at TSDR 20-24.

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MERRIAM-WEBSTER DICTIONARY showing no entry for the word “repreve;”16 a page
from Wikitionary.com regarding the French word “rêve;”17 definitions of “rep” and
“reprieve” from the MERRIAM-WEBSTER DICTIONARY;18 and the Declaration of Cynthia
D. Becker, the President and Director of Aloha Noni, Inc., Applicant’s general
partner,19 in which Ms. Becker discussed the channels of trade for Applicant’s
REPREVE product and stated that she was unaware of any consumer confusion
between those goods and REPRIEVE joint health supplements since sales of
Applicant’s REPREVE essential oils began in May 2018.20
The Examining Attorney denied Applicant’s Request for Reconsideration,21 and
the appeal in the ’174 Application was then resumed. 5 TTABVUE.
The ’818 Application
The ’818 Applicant was filed based on Applicant’s allegation of use in commerce
since at least as early as May 2018 and was supported by a specimen that is shown
in part below:
16 Id. at TSDR 25. The entry states that “[t]he word that you’ve entered isn’t in the dictionary.
Click on a spelling suggestion below or try again using the search bar above.” The first
“spelling suggestion” listed under the headings “Dictionary” and “Thesaurus” is the word
“reprieve.”
17 Id. at TSDR 27.
18 Id. at TSDR 28-38.
19 Ms. Becker signed both of Applicant’s applications in this capacity.
20 August 18, 2025 Request for Reconsideration at TSDR 39-40.
21 September 26, 2025 Denial of Request for Reconsideration at TSDR 1-2.

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22
The Examining Attorney refused registration based on the ’108 Registration,
making of record USPTO electronic records regarding it,23 and third-party webpages
that she claimed show “that the same entity commonly manufactures, produces, or
provides the relevant goods and/or services and markets the goods and/or services
under the same mark, and the relevant goods and/or services are sold or provided
through the same trade channels and used by the same classes of consumers in the
same fields of use.”24
Applicant responded by arguing against the refusal and making of record a page
from its website at bioinnovations.net;25 a page from its Facebook (now Meta)
22 November 21, 2023 Application at TSDR 7.
23 July 3, 2024 Office Action at TSDR 6-7.
24 Id. at TSDR 4, 8-33.
25 January 3, 2025 Response to Office Action at TSDR 14.

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account;26 third-party webpages displaying a REPRIEVE product;27 pages from the
website of the owner of the ’108 Registration;28 and pages from the Facebook and
Instagram accounts of the owner of the ’108 Registration.29
The Examining Attorney then issued an Office Action making final the refusal to
register.30 The Examining Attorney made of record additional third-party webpages
that she claimed show “that the same entity commonly manufactures, produces, or
provides the relevant goods and/or services and markets the goods and/or services
under the same mark, and the relevant goods and/or services are sold or provided
through the same trade channels and used by the same classes of consumers in the
same fields of use.”31
Applicant appealed and simultaneously requested reconsideration. In its Request
for Reconsideration, Applicant argued against the likelihood of confusion refusal,32
and made of record articles on the websites at opss.org and medicalnewstoday.com
discussing the dangers of ingesting essential oils;33 an article on the website at
clevelandclinic.org regarding reducing stress with aromatherapy;34 articles on the
26 Id. at TSDR 16.
27 Id. at TSDR 18-23.
28 Id. at TSDR 25-30.
29 Id. at TSDR 32-33, 35-36.
30 February 18, 2025 Final Office Action at TSDR 1-6.
31 Id. at TSDR 4, 7-57.
32 August 18, 2025 Request for Reconsideration at TSDR 7-16.
33 Id. at TSDR 17-22.
34 Id. at TSDR 23-29.

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websites at healthline.com and herbalandhonor.com regarding essential oils;35 an
article on the website at katanamrp.com regarding the manufacture of dietary
supplements;36 an article on the website of hiyahealth.com regarding the production
of vitamins and supplements;37 pages from the website of the owner of the ’108
Registration;38 third-party webpages displaying a REPRIEVE product;39 pages from
Applicant’s website;40 a page from the MERRIAM-WEBSTER DICTIONARY showing no
entry for the word “repreve;”41 a page from Wikitionary.com regarding the French
word “rêve;”42 definitions of “rep” and “reprieve” from the MERRIAM-WEBSTER
DICTIONARY;43 and a declaration of Ms. Becker that was substantively identical to the
one that she submitted in the ’174 Application.44
The Examining Attorney denied Applicant’s Request for Reconsideration,45
making of record USPTO electronic records regarding third-party use-based
registrations of marks that she claimed are “registered for use in connection with the
same or similar goods show[ing] that essential oil goods and dietary supplement
35 Id. at TSDR 30-35, 43-46.
36 Id. at TSDR 36-42.
37 Id. at TSDR 47-50.
38 Id. at TSDR 51-56.
39 Id. at TSDR 57-60.
40 Id. at TSDR 61-65.
41 Id. at TSDR 66. As in the ’174 Application, the entry suggested “reprieve” as the first
alternative “spelling suggestion.”
42 Id. at TSDR 68.
43 Id. at TSDR 69-79.
44 Id. at TSDR 80-81.
45 September 26, 2025 Denial of Request for Reconsideration at TSDR 1-3.

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goods, are of a kind that may emanate from a single source under a single mark,” and
additional third-party websites,46 and USPTO electronic records regarding
Applicant’s co-pending application, which the Examining Attorney claimed showed
“that it is common for the same manufacturer to produce, sell, and promote both
essential oil goods and dietary supplement goods under the same mark.”47 The appeal
was then resumed. 5 TTABVUE.
II. Analysis of Likelihood of Confusion Refusals
“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 or
services of the applicant, to cause confusion [or] mistake, or to deceive.” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (citation omitted) (cleaned up).
Our determination of the likelihood of confusion under Section 2(d) of the Trademark
Act is based on an analysis of all probative facts in the record that are relevant to the
likelihood of confusion factors set forth in In re E.I. DuPont DeNemours & Co., 476
F.2d 1357, 1361 (CCPA 1973) (“DuPont”). Charger Ventures, 64 F.4th at 1379. We
consider each DuPont factor for which there is evidence and argument. See, e.g., In re
Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
“Two key factors in every Section 2(d) case are the first two factors regarding the
similarity or dissimilarity of the marks and the goods or services, because the
fundamental inquiry mandated by §2(d) goes to the cumulative effect of differences
46 Id. at TSDR 2, 4-94.
47 Id. at TSDR 95-96.

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in the essential characteristics of the goods and differences in the marks.” DC Comics
v. Cellular Nerd LLC, No. 91246950, 2022 WL 17832492, at *10 (TTAB 2022)
(internal quotations and quotation marks omitted).
In its appeal brief in the ’174 Application, Applicant focuses exclusively on the key
first DuPont factor, and the third DuPont factor, the “similarity or dissimilarity of
established, likely-to-continue trade channels,” DuPont, 476 F.2d at 1361. 6
TTABVUE 4-7.48 Applicant concludes that “the relevant factors weigh against a
finding of likelihood of confusion because (1) there is no overlap when it comes to
which channels of trade the respective goods may travel, and (2) Applicant’s Mark
contains unique characteristics imbuing it with a distinct commercial impression.”
Id. at 7. Applicant never mentions, in its appeal brief, the key second DuPont factor,
thus “[a]pparently conceding the issue . . . .” In re Morinaga Nyugyo K.K., No.
86338392, 2016 WL 5219811, at *2 (TTAB 2016).
In its appeal brief in the ’818 Application, Applicant discusses the key first two
DuPont factors, as well as the third factor. 6 TTABVUE 4-12.49 Applicant concludes
48 Applicant states in both of its appeal briefs that “[i]n support of the present Appeal,
Applicant relies on the arguments set forth below, the arguments made in the previously
filed responses, and the evidence on file in the application file wrapper, all of which are
incorporated herein by reference as if fully set forth in length.” 6 TTABVUE 4. The evidence
presented by Applicant during prosecution is part of the record on appeal, but “incorporation-
by-reference statements are inadequate to present on appeal whatever arguments an
applicant may thereby be contemplating . . . .” In re Princeton Equity Grp. LLC, No. 97399712,
2025 WL 1638891, at *3 (TTAB 2025). “Parties whose briefs purport to incorporate by
reference arguments made during prosecution will be held to have failed thereby to present
whatever arguments the incorporation statement purports to cover to the Board and will be
deemed to have forfeited them.” Id. We have considered only those arguments actually made
in Applicant’s briefs.
49 Ms. Becker’s testimony in her declaration in the ’818 Application regarding the claimed
coexistence of the marks was potentially relevant under the eighth DuPont factor, which

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that “all of the relevant factors weigh against a finding of likelihood of confusion
because (1) there is only a minimal connection between the services [sic] offered under
the Applicant’s mark and the Cited Marks [sic], (2) there is no overlap when it comes
to which channels of trade the respective goods may travel, and (3) Applicant’s Mark
contains unique characteristics imbuing it with a distinct commercial impression.”
Id. at 12.
A. Similarity or Dissimilarity of the Marks50
Under the first DuPont factor, “we consider the ‘similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.’” In re Ye Mystic Krewe of Gasparilla, No. 90522364, 2025 WL 2953731,
at *4 (TTAB 2025) (quoting DuPont, 476 F.2d at 1361). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” Sage Therapeutics,
Inc. v. Sageforth Psych. Servs., LLC, No. 91270181, 2024 WL 1638376, at *5 (TTAB
2024) (quoting In re Inn at St. John’s LLC, No. 87075988, 2018 WL 2734893, at *5
(TTAB 2018) (citation omitted), aff’d per curiam, 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).
considers the “length of time during and conditions under which there has been concurrent
use without evidence of actual confusion,” DuPont, 476 F.2d at 1361, but Applicant did not
discuss the eighth DuPont factor in its appeal brief in the ’818 Application, and thus forfeited
any arguments based on the eighth factor. See, e.g., Princeton Equity, 2025 WL 1638891, at
*3.
50 In this section, we will discuss the first DuPont factor with respect to both applications
together because the compared marks REPRIEVE and REPREVE are the same in both.

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“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.” Sage Therapeutics, 2024 WL 1638376, at *5 (quoting 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.’” Id. (quoting In re i.am.symbolic, llc, No.
85916778, 2018 WL 3993582, at *4 (TTAB 2018) (citations omitted)).
“[S]imilarity is not a binary factor, but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d
1340, 1344 (Fed. Cir. 2003)). “[W]here, as here, the [Class 5] goods are identical in
part [in the ’174 Application], ‘the degree of similarity necessary to support a
conclusion of likely confusion declines” with respect to that class. Ye Mystic Krewe of
Gasparilla, 2025 WL 2953731, at *4 (quoting In re Viterra Inc., 671 F.3d 1358, 1363
(Fed. Cir. 2012)).
Not surprisingly, Applicant makes identical arguments regarding the
dissimilarity of the REPRIEVE and REPREVE marks in its briefs in both appeals.
We will cite Applicant’s briefs in the appeal in the ’174 Application.
Applicant argues that “[w]hile the Examiner asserts that Applicant’s Mark is the
phonetic equivalent to Registrant’s ‘REPRIEVE’ mark, there is no evidence to support
this assertion, particularly because there is no dictionary definition assigned to
Applicant’s ‘REPREVE’ mark,” 6 TTABVUE 6 (record citation omitted), and that

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there is “‘no correct pronunciation of a trademark that is not a recognized word.’” Id.
(quoting Stoncor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 1331-32 (Fed.
Cir. 2014)).
Applicant further argues that
[w]hile both marks do use some of the same letters in their
spelling, Applicant’s Mark has a distinctive commercial
impression because it excludes the letter “I” as its vowel,
whereas the Cited Mark’s first vowel is the letter “I.” As a
result of the different spelling in Applicant’s mark, the
second syllable in the mark begins with “E,” altering the
mark’s commercial impression. Indeed, the “REVE” portion
of Applicant’s Mark is French for the word “dream,” which,
when used in connection with Applicant’s essential oils,
carries a connotation of a relaxing calm. . . . Some of
Applicant’s French-speaking customers may automatically
pronounce the term “rep-réve,” with a short “e” sound for
both syllables.
Id. at 6-7.
Applicant contrasts its REPREVE mark with the REPRIEVE mark shown in the
’108 Registration, arguing that the cited mark “contains the letter ‘I’ included in the
second vowel portion of the mark, creating [a] long ‘e’ sound,” and that “[contrary] to
Applicant’s mark, ‘reprieve’ does have a defined dictionary meaning which has at
least one giving ‘relief or deliverance to for a time.’” Id. at 7.51 According to Applicant,
“[w]hen used in connection with Registrant’s joint health supplements, this sense of
relief makes sense.” Id.52
51 August 18, 2025 Request for Reconsideration at TSDR 34 (MERRIAM-WEBSTER
DICTIONARY).
52 As noted above, the identification of goods in the ’108 Registration includes “Dietary
supplements” alone, with no limitation as to therapeutic benefits, such as joint health, as
well as other distinct goods, separated from “dietary supplements” and other goods by

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Applicant concludes that its mark and the cited mark, “while perhaps containing
similar letters, nevertheless create different commercial impressions” and that
“[c]ombined with the differences in the goods and channels of trade, consumers are
not likely to confuse these marks.” Id.
The Examining Attorney’s arguments under the first DuPont factor in both briefs
in the two appeals are almost identical. Unless otherwise indicated, we will the
Examining Attorney’s brief in the appeal in the ’174 Application.
The Examining Attorney argues that
Applicant’s mark is REPREVE. Registrant’s mark is
REPRIEVE. Applicant argues that the marks are not
confusingly similar because the applicant has left out the
“I” in its mark. . . . However, the deletion of a single letter
in the middle of a standard-character, single word mark
does not substantially alter the appearance of the
“entirety” of the mark.
8 TTABVUE 6 (record citations omitted). According to the Examining Attorney “[t]he
marks look the same with registrant’s mark including all of the letters of applicant’s
mark.” Id.
The Examining Attorney notes that Applicant “contends that there is no
dictionary definition of its mark,” but argues that “the dictionary evidence applicant
provided for REPREVE provides the suggested word REPRIEVE, assuming that
REPREVE was just spelled incorrectly.” Id. at 7 (citations omitted). The Examining
Attorney argues that “[t]his is the same assumption that consumers will make when
semicolons, that do have such limitations. We focus below on the goods broadly identified as
“dietary supplements.” In both appeals, Applicant ignores these broadly-identified goods.

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seeing applicant’s REPREVE mark,” and the marks “are likely to be seen, read, and
pronounced the same way.” Id.
The Examining Attorney rejects Applicant’s arguments regarding its “French-
speaking customers” because Applicant’s “mark is not a foreign word mark with a
translation,” id., and “the suggestion that some French speakers may break apart
applicant’s one word mark to read a portion of it as a foreign term is irrelevant to the
likelihood of confusion analysis.” Id. (citations omitted). The Examining Attorney also
argues that the connotation and commercial impression of the REPREVE and
REPRIEVE marks are similar in the context of the involved goods and services in the
two applications.
In the appeal in the ’174 Application, the Examining Attorney argues that
[t]here is an inherent and obvious association between the
word REPRIEVE, meaning “relief” and dietary and
nutritional supplements for health. As previously
discussed, the dictionary result for REPREVE suggested
that it is a misspelled version of REPRIEVE, thus,
consumers will have the general impression that both
applicant’s and registrant’s mark convey the commercial
impression of supplements providing relief
Id. at 8.
In the appeal in the ’818 Application, the Examining Attorney similarly argues
that
the dictionary result for REPREVE suggested that it is a
misspelled version of REPRIEVE, thus, consumers will
have the general impression that both applicant’s and
registrant’s mark convey the commercial impression of
goods that provide relief. . . . Also, as stated by applicant,
essential oils can reduce stress and produce a calming
effect. . . . Thus, REPREVE used with essential oils creates

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the impression of relief just as registrant’s REPRIEVE
conveys the impression of relief.
8 TTABVUE 6 (record citations omitted).
In its reply briefs, Applicant repeats arguments made in its appeal briefs, and also
argues that its mark is a “coined term with no dictionary definition,” 9 TTABVUE 3;
that the Examining Attorney’s “suggestion that consumers will simply view
REPREVE as a misspelling of REPRIEVE is speculative and unsupported by
evidence,” id.; that the “differences in spelling and structure weigh against a finding
that the marks are confusingly similar in appearance or sound,” id.; and that “even
if the marks share some overlapping letters, they convey different meanings and
commercial impressions in connection with the respective goods.” Id. at 4.
We begin our analysis with the similarity or dissimilarity of the marks in
appearance. The standard-character marks REPRIEVE and REPREVE are obviously
very similar in structure and content, as each two-syllable mark begins with the letter
string “R-E-P-R” and ends with the letter string “E-V-E.” The only difference is the
absence of the letter “I” between those letter strings in Applicant’s REPREVE mark,
which may be noticed on a close visual comparison of the marks.
“But marks ‘must be considered . . . in light of the fallibility of human memory’
and ‘not on the basis of side-by-side comparison.’” St. Helena Hosp., 774 F.3d at 751
(quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683,
685 (CCPA 1977)). Consumers with a general rather than a specific recollection of the
cited mark REPRIEVE in their mind’s eye, who later separately see Applicant’s mark
REPREVE used for goods and services that we find below are identical to, or related

Serial Nos. 98280174 and 98280818 (Consolidated)
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to, the goods with which the REPRIEVE mark is used, could readily overlook the
absence of the letter “I” in Applicant’s mark entirely and simply see Applicant’s mark
as REPRIEVE. In that regard, we agree with the Examining Attorney that it is
significant that Applicant’s evidence from the MERRIAM-WEBSTER DICTIONARY in both
appeals showing no entry for the word “repreve” lists the word “reprieve” as the first
“spelling suggestion” under the headings “Dictionary” and “Thesaurus.”53 We can
reasonably infer from Applicant’s dictionary evidence that some consumers may
unconsciously visually “autocorrect” REPREVE to REPRIEVE and view the
remembered and encountered marks as the same. We find that the REPRIEVE and
REPREVE marks are quite similar in appearance, even if consumers notice that
Applicant’s mark REPREVE is not the cited mark REPRIEVE.
With respect to sound, the marks are again similarly structured, with each
containing two syllables beginning with “RE,” and ending with “PRIEVE” and
“PREVE,” respectively. As discussed above, Applicant argues that the recognized
English word “reprieve” has a known pronunciation with long “e” sounds (“ree-
preeve”), while its mark REPREVE, which it describes as “a coined term with no
dictionary definition,” 9 TTABVUE 3, will be pronounced with short “e” sounds (“reh-
prehve”).
We agree with Applicant that “there is no correct pronunciation of a trademark
that is not a recognized word,” Ston-Cor, 759 F.3d at 1332-33, but “[a]bsent evidence
53 August 18, 2025 Request for Reconsideration at TSDR 25 (’174 Application); August 18,
2025 Request for Reconsideration at TSDR 66 (’818 Application).

Serial Nos. 98280174 and 98280818 (Consolidated)
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to the contrary, we must consider all reasonable possibilities” for the pronunciation
of “Repreve.” Look Cycle Int’l v. Kunshan Quiye Outdoor Sports Goods Co., No.
92079409, 2024 WL 3739358, at *10 (TTAB 2024) (citing StonCor, 759 F.3d at 1332).
Applicant does not discuss any possibility for pronunciation of REPREVE other
than as “reh-prehve,” with short “e” sounds. In that regard, Applicant argues that
“[s]ome of [its] French-speaking consumers may automatically pronounce the term
‘rep-réve,’ with a short ‘e’ sound for both syllables,” 6 TTABVUE 7, because “the
‘REVE’ portion of Applicant’s Mark is French for the word ‘dream’ . . . .” Id. at 6.
Applicant’s own evidence belies this claim. During prosecution of both
applications, Applicant made of record a Wiktionary entry showing that the French
word for “dream” is “rêve,” with the diacritical mark known as a circumflex accent (^)
appearing over the first letter “e.”54 There is no circumflex accent appearing over the
second letter “E” in Applicant’s REPREVE mark (and no acute accent (′) that
Applicant instead uses to illustrate pronunciation, id. at 7), and Applicant’s
hypothesized “French-speaking consumers,” id., surely would not read or verbalize
the “REVE” portion of Applicant’s mark as the French word “rêve”55 without those
accents. See Viterra, 671 F.3d at 1367 (“[T]here is no correct pronunciation of a
54 August 18, 2025 Request for Reconsideration at TSDR 27.
55 As noted above, Applicant also argues in both appeals that the “REVE” portion of its mark
is the French word for “dream,” which “when used in connection with Applicant’s essential
oils, carries a connotation of a relaxing calm.” 6 TTABVUE 7. The ’174 Application does not
cover goods identified as “essential oils,” which are the subject of the ’818 Application, and
“essential oils” are only one of the numerous goods featured in the Class 35 identification of
“On-line retail store services.”

Serial Nos. 98280174 and 98280818 (Consolidated)
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trademark, and consumers may pronounce a mark differently than intended by the
brand owner.”).
The marks will sound identical if they are both viewed as “REPRIEVE” and
verbalized as such, but the pronunciation of “repreve” with two long “E” sounds, in
the manner of “reprieve,” is also at least a reasonable possibility even if the two marks
are viewed as different words. Applicant’s REPREVE mark begins with the prefix
“RE-.” When used as a prefix in American English, the letters “RE-” are frequently
pronounced with a long “e” sound, as in the common words “return,” “repeat,” and
“remember.”56 Applicant’s REPREVE mark also ends in the letter string “-E-V-E,”
which forms a common word in English with a known pronunciation featuring a long
first “e” sound. See In re Jimenez, No. 97551823, 2025 WL 3126703, at *6 (TTAB
2025) (finding that the pronunciation of the letter strings “G-A-S” and “G-A-S-P” in
the applicant’s GASPER mark bears on the pronunciation of the initial letter “G”).
We find that the marks are quite similar in sound even if Applicant’s mark is
pronounced with only one long “e” sound (i.e., “ree-prehve” or “reh-preeve”), or with
two short “e’s.” The marks would be identical in sound if they were both viewed and
verbalized as “Reprieve.” “Similarity in sound alone may be sufficient for a finding of
likelihood of confusion.” In re 1st USA Realty Pros., Inc., No. 78553715, 2007 WL
2315610, at *5 (TTAB 2007)) (citing Krim-Ko, 390 F.2d at 732).
56 In other words in American English, the “Re-” prefix may be pronounced with a short “E”
sound. Examples include “representation” and “register.” Some words such as “reveal” may
be pronounced with either a long or short initial “e.”

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Finally, with respect to meaning, Applicant’s key argument is that its REPREVE
mark conveys a sense of “a relaxing calm” based on the perception of some French-
speaking customers, 6 TTABVUE 6-7, but as discussed above, the underlying factual
premise for this claim is illusory. If REPREVE is understood to be REPRIEVE,
Applicant’s mark would have the same meaning as the cited mark of providing “a
temporary respite (as from pain or trouble),”57 but there is no evidence that
Applicant’s mark would convey a different meaning if it were understood not to be
REPRIEVE.
The REPRIEVE and REPREVE marks are similar in appearance and sound, and
are not dissimilar in meaning. The first DuPont factor supports a conclusion that
confusion is likely with respect to the goods and services identified in the ’174
Applicant, and the goods identified in the ’818 Application. Naterra Int’l, Inc. v.
Bensalem, 92 F.4th 1113, 1119 Fed. Cir. 2024).
B. Similarity or Dissimilarity of the Goods and Services58
“The second DuPont factor considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration . . . .” In re Detroit
57 August 18, 2025 Request for Reconsideration at TSDR 34 (MERRIAM-WEBSTER
DICTIONARY) (’174 Application).
58 The ’174 Application covers multiple goods in Class 5 and, as amended, one lengthy
description of “On-line retail store services featuring” various goods in Class 35. In this
section of the opinion, we will discuss the applicable law under the second DuPont factor, but
“[b]ecause each class in Applicant’s multi-class application is, in effect, a separate
application, we consider each class separately, and determine whether [the Examining
Attorney] has shown a likelihood of confusion with respect to each.” In re OSF Healthcare
Sys., No. 88706809, 2023 WL 6140427, at *4 (TTAB 2023) (quoting N. Face Apparel Corp. v.
Sanyang Indus. Co., No. 91187593, 2015 WL 6467820, at *11 (TTAB 2015)). We will also
consider the Class 3 goods in the ’818 Application in a separate sub-section.

Serial Nos. 98280174 and 98280818 (Consolidated)
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Athletic Co., 903 F.2d 1297, 1306 (Fed. Cir. 2018). “This factor considers whether ‘the
consuming public may perceive [the goods or services] as related enough to cause
confusion about the source or origin of the goods or services.’” St. Helena Hosp., 774
F.3d at 752 (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267
(Fed. Cir. 2002)).
The goods or services “‘need not be identical or even competitive to find a likelihood
of confusion.’” OSF Healthcare, 2023 WL 6140427, at *4 (quoting In re Country Oven,
Inc., No. 87354443, 2019 WL 6170483, at *2 (TTAB 2019)). “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 Country Oven, 2019 WL 6170483, at *2 (quoting Coach Servs.,
668 F.3d at 1369 (internal quotation omitted)).
The relatedness of goods or services may be established based on (1) the language
of the involved identifications of goods or services, which may show, on the face of the
identifications, that the goods or services are literally or legally identical, or otherwise
intrinsically related, and (2) evidence of third-party uses or registrations, which may
show that the identified goods or services are commonly offered by the same entity
under the same mark. Id. at *4 (“Evidence of relatedness may include news articles
or evidence from computer databases showing that the relevant goods [or services]
are used together or used by the same purchasers; advertisements showing that the
relevant goods [or services] are advertised together or sold by the same manufacturer
or dealer; or copies of prior use-based registrations of the same mark for both

Serial Nos. 98280174 and 98280818 (Consolidated)
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applicant’s goods [or services] and the goods [or services] listed in the cited
registration [and] [t]he application and registration themselves may provide evidence
of the relationship between the [goods or] services.”) (internal quotations and
citations omitted).
“[W]e must construe the [goods] identified in the cited registration as broadly as
reasonably possible ‘to include all [goods] of the nature and type described therein,’”
id. at *5 (quoting In re Solid State Design Inc., No. 87269041, 2018 WL 287909, at *6
(TTAB 2018) (internal quotation omitted)), and “we must resolve any ambiguities
regarding their coverage in favor of the cited registrant ‘given the presumptions
afforded the registration under Section 7(b)’ of the Trademark Act.” Id. (citing In re
C.H. Hanson Co., No. 77983232, 2015 WL 6121759, at *15 (TTAB 2015) (citing 15
U.S.C. § 1057(b)). “[W]e must also give the [goods and services] identified in the [two]
application[s] their full scope in our analysis of the second DuPont factor.” Id. (citing
Country Oven, 2019 WL 6170483, at *5).
1. The ’174 Application
As discussed above, the ’174 Application covers “Mineral supplements; Nutritional
supplements; Vitamin supplements; Dietary and nutritional supplements” in Class
5, and, as amended, a single service in Class 35, “On-line retail store services
featuring nutritional supplements, dietary and nutritional supplements, vitamin
supplements, mineral supplements, essential oils, aromatic essential oils, natural
essential oils, essential oils for aromatherapy use, carrier oils for diluting essential
oils, roller bottles sold filled with essential oils, custom blending of essential oils for
aromatherapy use, electric essential oil diffusers, dried herbs in powdered form,

Serial Nos. 98280174 and 98280818 (Consolidated)
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cooking products, namely, culinary herbs, culinary seasonings, and seed and nut oils,
candles, natural sleep aids, massage oils, dry brushes, bath salts.”
The “Examining Attorney need not prove, and we need not find, similarity as to
each [good or service] listed in the description of [goods and services]” in Classes 5
and 35 in the ’174 Application. OSF Healthcare, 2023 WL 6140427, at *5 (citation
omitted). “‘[I]t is sufficient for finding a likelihood of confusion if relatedness is
established for any [good or service] encompassed by the identification of [goods or
services] within a particular class in the application.” Id. (citations omitted).59
a. Class 5
The ’108 Registration covers Class 5 goods identified as “Dietary supplements,”
and the ’174 Application covers Class 5 goods identified as “Dietary and nutritional
supplements.” The “dietary supplements” described in the identifications in the ’108
Registration and the ’174 Application are identical, and the second DuPont factor
strongly supports a conclusion that confusion is likely with respect to the entirety of
Class 5 in the ’174 Application. Id. at *9.
b. Class 35
The ’174 Application covers services identified, as amended, as “On-line retail
store services featuring . . . dietary and nutritional supplements . . . .” There is a self-
evident intrinsic relationship between goods described as “dietary supplements” and
“on-line retail store services featuring . . . dietary . . . supplements,” best illustrated
by the fact that Applicant itself intends in the ’174 Application to use its mark in
59 As noted above, Applicant does not address the second DuPont factor in Applicant’s appeal
brief in the ’174 Application.

Serial Nos. 98280174 and 98280818 (Consolidated)
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connection with both dietary supplements and on-line retail store services featuring
their sale. See Detroit Athletic Co., 903 F.3d at 1306 (the Board properly “found that
the clothing goods described in the Detroit Athletic Club’s registration are broad
enough to cover ‘all types of clothing, which includes sports teams’ clothing’” sold by
the applicant and that “while the goods and services are not identical, they
substantially overlap, which weighs in favor of finding a likelihood of confusion”)
(citing Hewlett-Packard, 281 F.3d at 1268 (finding confusion to be likely between the
HEWLETT PACKARD and PACKARD TECHNOLOGIES marks where “several of
HP’s registrations cover goods and services that are closely related to the broadly
described services that Packard Press seeks to register”); In re Hyper Shoppes (Ohio),
Inc., 837 F.2d 463, 464 (Fed. Cir. 1988) (“[A]pplicant’s ‘general merchandise store
services’ would include the sale of furniture . . . What else it sells is irrelevant; there
is overlap.”)). See also Country Oven, 2019 WL 6170483, at *3 (“It is a matter of
common knowledge that retail bakery shops sell bakery products.”).
The Class 35 services identified as “on-line retail store services featuring . . .
dietary . . . supplements” involve the sale of the Class 5 goods identified as “dietary
supplements.” Because there is an intrinsic relationship between the goods identified
in the ’108 Registration (and in the ’174 Application itself) as “dietary supplements”
and the services identified in the ’174 Application as “On-line retail store services
featuring . . . dietary and nutritional supplements,” the second DuPont factor also
supports a conclusion that confusion is likely with respect to the Class 35 services in
the ’174 Application.

Serial Nos. 98280174 and 98280818 (Consolidated)
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2. The ’818 Application
The ’818 Application covers goods in Class 5 identified as “Essential oils; Aromatic
essential oils; Natural essential oils; Essential oils for aromatherapy use; Carrier oils
for diluting essential oils; Roller bottles sold filled with essential oils; Blended
essential oils for aromatherapy use.” There are no counterpart goods identified in the
’108 Registration, and the Examining Attorney relies on third-party uses and
registrations to show relatedness based on evidence that the “essential oils” identified
in the ’818 Application and the “dietary supplements” identified in the ’108
Registration are commonly offered by the same company under the same mark. 8
TTABVUE 6-11 (record citations omitted).
Applicant argues that
Applicant’s goods are narrowly defined, restrained to the
field of “essential oils.” Likewise, Registrant’s goods are
narrowly defined, restrained to the field of dietary
supplements for joint health. Applicant’s essential oils are
not related to Registrant’s joint health supplements, nor
are they marketed in a manner that would lead the same
consumers to mistakenly believe Applicant’s products are
sourced by Registrant.
6 TTABVUE 5-6. Applicant further argues that “Applicant’s and Registrant’s goods
materially differ in their intended use,” id. at 6, that “[c]onsumers of essential oils
are typically seeking a sensory experience that influences emotional and mental well-
being through external means, not internal physiological treatment,” id., and that
the registrant’s “supplements provide targeted physiological benefits, such as
improving joint and muscle flexibility and mobility, reducing inflammation, and
alleviating stiffness and fatigue” to “consumers seek[ing] these products either

Serial Nos. 98280174 and 98280818 (Consolidated)
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because they are already experiencing problems with their joints or to prevent those
problems from arising.” Id.60 Applicant concludes that “the differences between
essential oils and nutritional supplements are not subtle ones,” and that “consumers
seeking Applicant’s essential oils will not be confused by Registrant’s joint health
supplements or mistakenly believe that these oils were made by or affiliated with
Registrant.” Id. at 7-8.
With respect to the Examining Attorney’s third-party use evidence, Applicant
argues that two of the cases cited by the Examining Attorney during prosecution in
support of her arguments that the third-party websites show relatedness, In re Davey
Prods. Pty, No. 77029706, 2009 WL 2420527 (TTAB 2009), and In re Toshiba Med.
Sys. Corp., No. 79046106, 2009 WL 1896059 (TTAB 2009), are distinguishable.
According to Applicant, in Davey Prods., “the Board held the goods to be similar
because the applied-for goods were an essential component of the registrant’s goods,
establishing a ‘viable Relationship,’” because “‘an electric motor is or can be an
essential component of an air compressor,’” 6 TTABVUE 8 (quoting Davey Prods.,
2009 WL 2420527, at *5), while in Toshiba Med. Sys., “the Board determined that the
goods at issue were ‘related’ because they served ‘similar functions’ and were
‘complementary’” because “‘both MRI and ultrasound equipment can serve
60 Applicant also argues that the production methods for the respective goods differ, and that
supplements come in many forms, including powders, capsules, and liquids. 6 TTABVUE 7.
These arguments and the others of their ilk miss the mark because the “issue is not whether
purchasers would confuse the goods, but rather whether there is a likelihood of confusion as
to the source of these goods.” In re Samsung Display Co., No. 90592617, 2024 WL 3451873,
at *3 (TTAB 2024) (citations omitted).

Serial Nos. 98280174 and 98280818 (Consolidated)
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complementary purposes.’” Id. (quoting Toshiba Med. Sys., 2009 WL 1896059, at *5).
Applicant argues that here, “there is not a viable relationship between essential oils
and nutritional supplements, nor do they serve similar functions.” Id. Applicant
concludes that “[p]ut simply, essential oils are not necessary for one to function or
survive, in contrast to vitamins and minerals.” Id. at 9 (emphasis in bold here in
italics in the original).
The Examining Attorney responds that “Applicant contends that its essential oil
goods are not related to registrant’s dietary supplements because they are made
through different processes, are used in different ways, and sold in different trade
channels,” but that “[t]o the extent that these limitations exist, they are not reflected
in the application” and Applicant “has made no effort to narrow or limit the scope of
the identification, and registrant’s channels of trade are also not limited.” 8
TTABVUE 6 (record citations omitted). The Examining Attorney states that she “is
constrained to determine the likelihood of confusion based on the description of the
goods and/or services stated in the application and registration at issue, not on
extrinsic evidence of actual use.” Id. at 6-7 (citations omitted).61
61 The Examining Attorney also argues that “[h]ere, where no such restrictions exist,
otherwise legally related goods are ‘presumed to travel in the same channels of trade to the
same class of purchasers.’” 8 TTABVUE 7 (quoting Viterra, 671 F.3d at 1362 (quoting
Hewlett-Packard, 281 F.3d at 1268 and citing Cai v. Diamond Hong, Inc., 901 F.3d 1367,
1372 (Fed. Cir. 2018)). This is an incorrect statement of the law. The cited presumption is
applicable only where the goods are identical, Viterra, 671 F.3d at 1362, which is not the case
in the appeal in the ’818 Application. As discussed below, we have applied this presumption
to the identical Class 5 “dietary supplements” in the ’174 Application and the ’108
Registration.

Serial Nos. 98280174 and 98280818 (Consolidated)
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The Examining Attorney argues that the “extensive third-party use and third-
party registration evidence . . . supports that not only are the goods marketed in the
same way to give rise to the mistaken belief that the goods emanate from the same
source,” but also that “the same entities commonly manufacture and sell applicant
and registrant’s goods under the same mark through the same trade channels.” Id.
at 8. The Examining Attorney concludes that “applicant’s goods are related to
registrant’s, furthering the likelihood of confusion between applicant’s REPREVE
and registrant’s REPRIEVE marks.” Id. at 11.
In its reply brief, Applicant argues that the Examining Attorney’s “relatedness
analysis rests almost entirely on third-party evidence showing that some companies
sell both essential oils and dietary supplements under the same mark.” 9 TTABVUE
5 (record citations omitted). According to Applicant, “[t]hat approach is inconsistent
with Board precedent and gives undue weight to third-party registrations and
website evidence without sufficient attention to the nature of the goods, the relevant
trade channels, and consumer perception.” Id.
The “Board precedent” referred to by Applicant in its reply brief is In re
HerbalScience Grp., LLC, No. 77519313, 2010 WL 5651672 (TTAB 2010), which
Applicant cites for the proposition that “third-party registrations showing that single
entity offers multiple categories of health-related goods do not, standing alone,
establish that consumers would expect such goods to emanate from the same source.”
9 TTABVUE 5. Applicant argues that in HerbalScience, “the Board reversed a Section
2(d) refusal notwithstanding evidence that botanical extracts and dietary

Serial Nos. 98280174 and 98280818 (Consolidated)
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supplements could be sold under the same mark, emphasizing the differences in how
the goods are sold, used, and encountered by consumers may outweigh generalized
evidence of overlapping product lines.” Id. (citing HerbalScience, 2010 WL 5651672,
at *4). Applicant concludes that the involved goods here “differ fundamentally in
method of use, purpose, regulatory treatment, and consumer motivation,” that
“[c]onsumers seeking essential oils for aromatherapy are not purchasing products
intended to be ingested for joint relief, and vice versa,” id., and that the Examining
Attorney’s “third-party evidence shows only that some companies choose, as a matter
of business strategy, to operate across multiple wellness categories.” Id. at 6.
We begin our analysis by noting that Applicant itself aspires to be one of the
“companies that sell both essential oils and dietary supplements under the same
mark,” id. at 5, and has itself chosen “as a matter of business strategy, to operate
across multiple wellness categories.” Id. at 6. During prosecution of the ’818
Application, the Examining Attorney made of record USPTO electronic records
regarding Applicant’s ’174 Application,62 and they show that in the ’174 Application,
Applicant claims that it intends to use its REPREVE mark for “Dietary and
nutritional supplements.” Applicant’s own use and intended use of the REPREVE
mark for both “essential oils” and “Dietary and nutritional supplements” is potent
evidence of the relatedness of the goods and belies Applicant’s arguments that the
goods are unrelated. See, e.g., Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918
F.2d 937, 941 (Fed. Cir. 1990) (on the issue of relatedness of the applicant’s “modems”
62 September 26, 2025 Denial of Request for Reconsideration at TSDR 95-96.

Serial Nos. 98280174 and 98280818 (Consolidated)
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and the opposer’s “computer programs,” the fact “that such goods might come from a
single source is shown by [the applicant’s] original application, which indicates [the
applicant] itself used the mark OCTOCOM for both modems and computer
programs”); HerbalScience, 2010 WL 5651672, at *2 (the applicant was found to have
acknowledged the relatedness of nutritional supplements and dietary supplement
drinks because those goods were originally included in its identification of goods).
The Examining Attorney made of record 17 use-based, third-party registrations,
all owned by separate entities,63 that cover goods identified as both “essential oils”
and “dietary supplements” (or equivalents that encompass “dietary supplements,”
such as “dietary and nutritional supplements” or “nutritional and dietary
supplements”).64 “As a general proposition, third-party registrations that cover goods
. . . from both the cited registration and an Applicant’s application are relevant to
show that the goods . . . are of a type that may emanate from a single source under
one mark.” Country Oven, 2019 WL 6170483, at *5 (discussing 14 third-party
registrations covering the involved goods and services) (citations omitted). The 17
third-party registrations made of record by the Examining Attorney are “sufficient in
both quality and quantity to provide a reasonable predicate supporting the
63 Id. at TSDR 4-5 (Reg. No. 7196461), 6-7 (Reg. No. 7444052), 8-9 (Reg. No. 6635851), 10-11
(Reg. No. 7231372), 12-13 (Reg. No. 7645381), 14-15 (Reg. No. 7122246), 16-17 (Reg. No.
6318916), 18-19 (Reg. No. 7576764), 20-21 (Reg. No. 7327944), 22-23 (Reg. No. 7785733), 24-
25 (Reg. No. 7188637), 28-29 (Reg. No. 7945077), 32-33 (Reg. No. 5292289), 34-35 (Reg. No.
5281939), 38-39 (Reg. No. 7245302), 40-41 (Reg. No. 6151805), and 42-43 (Reg. No. 3062304).
64 “Just as we must consider the full scope of the goods and services as set forth in the
application and registration under consideration, we must consider the full scope of the goods
and services described in a third-party registration.” Country Oven, 2019 WL 6170483, at
*5.

Serial Nos. 98280174 and 98280818 (Consolidated)
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Examining Attorney’s position on relatedness and shift the burden to Applicant to
rebut the evidence with competent evidence of its own.” Id. Applicant did not provide
such evidence.
In addition to the third-party registrations, the Examining Attorney made of
record multiple third-party websites offering essential oils and dietary supplements
under the same mark,65 including the websites of (1) Young Living (youngliving.com),
which offers goods described as “Essential Oils” and supplements under the Young
Living mark;66 (2) dōTERRA (doterra.com), which offers supplements and essential
oils under the dōTERRA mark;67 (3) Nature’s Truth (naturestruth.com), which offers
goods described as “Supplements” and “Essential Oils” under the Nature’s Truth
mark;68 (4) Nature’s Sunshine (naturessunshine.com), which offers various dietary
supplements and goods described as “Essential Oils” under the Nature’s Sunshine
mark;69 (5) The Vitamin Shoppe (vitaminshoppe.com), which offers goods described
as “Pure Essential Oils” and various dietary supplements under The Vitamin Shoppe
mark;70 (6) Adams Supplements (adamssupplements.com), which offers various
65 The Board has held that in determining exactly what goods are offered through websites,
“we acknowledge that [goods] may not be explicitly described at all, or may be described in
colloquial language that does not track the technical language of acceptable identifications of
goods and services in applications and registrations, including those involved here. . . .” OSF
Healthcare, 2023 WL 6140427, at *10 “In such instances, we must determine the nature of
the [goods] that are offered, and decide whether they fall within the full scope of the language
in the involved identifications.” Id.
66 July 3, 2024 Office Action at TSDR 8-17.
67 Id. at TSDR 18-23.
68 Id. at TSDR 24-33.
69 February 25, 2025 Final Office Action at TSDR 7-12.
70 Id. at TSDR 13-18.

Serial Nos. 98280174 and 98280818 (Consolidated)
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supplements and goods described as “Essential Oils” under the Adams Supplements
mark;71 (7) Plant Therapy (planttherapy.com), which offers various supplements and
goods described as “Essential Oils” under the Plant Therapy mark;72 (8) Now
(nowfoods.com), which offers goods described as “Natural and Nutritional
Supplements” and “Essential Oils” under the NOW mark;73 (9) Isagenix
(isagenix.com), which offers goods described as “Essential Oils” and “Dietary
Supplements” under the Isagenix word and design marks;74 and (10) Piping Rock
(pipingrock.com), which offers goods described as “Supplements” and “Essential Oils”
under the Piping Rock mark.75 These 10 websites corroborate, and in turn are
corroborated by, the third-party registration evidence showing that the goods
identified in the ’818 Application as “essential Oils” and the goods identified in the
’108 Registration (and in Applicant’s own ’174 Application) as “dietary supplements”
commonly emanate from the same source under the same mark.
Applicant’s attacks on the Examining Attorney’s third-party use and registration
evidence are meritless. Applicant’s citations of Davey Prods. and Toshiba Med. Sys.
are inapposite. In Davey Prods., the Board affirmed a Section 2(d) refusal to register,
finding that the goods identified in the application as “electric motors for machines;
waterpumps with fluid flow or pressure control for domestic, industrial and
71 Id. at TSDR 19-26.
72 Id. at TSDR 44-52.
73 September 26, 2025 Denial of Request for Reconsideration at TSDR 45-62.
74 Id. at TSDR 63-75.
75 Id. at TSDR 76-87.

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commercial use; and parts and fittings therefor,” and the goods identified in the cited
registration as “air compressors and parts therefor,” were related because, as
Applicant notes, “an electric motor is or can be an essential component and/or
replacement part of an air compressor.” 6 TTABVUE 8 (quoting Davey Prods., 2009
WL 2420527, at *5). But the Board further relied on the examining attorney’s “third-
party Internet evidence” consisting of two pages “showing that water pumps and/or
electric motors, such as applicant’s, and air compressors, such as registrant’s, can be
manufactured and sold by a single source,” Davey Prods., 2009 WL 2420527, at *5,
and “evidence . . . consisting of printouts of twenty-one third-party use-based
registrations, each of which includes in its identification of goods both the goods
identified in applicant’s application, i.e., water pumps and/or electric motors for
machines, and the goods identified in the cited registration, i.e., air compressors.” Id.
The Board concluded that “[b]ased on all of this evidence . . . we find that the goods
identified in applicant’s application are related to the goods identified in the cited
registration, for purposes of the second du Pont factor.” Id. at *6. Contrary to
Applicant’s suggestion, the Board did not find relatedness solely because “‘an electric
motor is or can be an essential component of an air compressor,’” 6 TTABVUE 8
(quoting Davey Prods., 2009 WL 2420527, at *5), or impose such a requirement as a
predicate to relatedness under the second DuPont factor, and the fact that of one
involved good is not a component of the other involved good is obviously not fatal
under the second DuPont factor where other evidence is sufficient to show
relatedness.

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In Toshiba Med. Sys., the Board also affirmed a Section 2(d) refusal to register.
Applicant claims that the Board found that “the goods at issue were ‘related’ because
they served ‘similar functions’ and were ‘complementary’” because “‘both MRI and
ultrasound equipment can serve complementary purposes,’” id. (quoting Toshiba
Med. Sys., 2009 WL 1896059, at *5), but contrary to Applicant’s suggestion, the Board
did not find relatedness based solely on such complementarity, or state that a
showing of complementary is required to establish relatedness. The Board actually
stated that
several facts support the conclusion that applicant’s
medical magnetic resonance imaging diagnostic
apparatus, namely, MRI diagnostic apparatus, and
registrant’s medical diagnostic apparatus, namely,
medical ultrasound device, are related. First, both
goods are medical diagnostic apparatus with imaging
functions. Second, the facts show that MRI and
ultrasound diagnostic equipment originate from the
same source. Third, the same facilities (hospitals and
diagnostic centers) have both MRI and ultrasound
equipment. Fourth, MRI and ultrasound equipment can
serve complementary purposes, for they can be used by
physicians and other medical personnel in the treatment of
the same patient for such diseases as prostate and breast
cancer or in the treatment of a patient with a fibroid tumor.
When we consider that applicant’s and registrant’s
goods are medical diagnostic equipment that can
originate from the same source (applicant itself is a
source of both types of equipment), that can be
purchased by the same facilities, and that are used on the
same patients to treat the same disease by the same
physician, we conclude that these goods are related.
Toshiba Med. Sys., 2009 WL 1896059, at *5 (emphasis added). The record here shows
that “dietary supplements” and “essential oils” commonly originate from the same
source under the same mark (just as Applicant itself intends to use its mark for both

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goods) and, consistent with the Board’s precedents discussed above, that is sufficient
to show relatedness.
Finally, in HerbalScience, which involved (1) botanical extracts that the
identification of goods in the application specifically limited to “use in the
manufacture of” various other goods, such as nutraceuticals, pharmaceuticals,
cosmetics, and foods, and (2) goods identified in the cited registration as “dietary and
nutritional supplements,” HerbalScience, 2010 WL 5651672, at *1, the Board found
that
the examining attorney has submitted a significant
number of third-party registrations showing that many
entities have adopted a single mark for use on goods of the
type listed in applicant’s application and in the cited
registration. . . These third-party registrations, which
individually cover a number of different items and which
are based on use in commerce, serve to suggest that the
listed goods and/or services are of a type which may
emanate from a single source. . . .
Id. at *3 (citations omitted).
The purchasers of the “dietary and nutritional supplements” identified in the cited
registration were consumers, while the purchasers of the goods identified in the
application were expressly limited by the language “use in the manufacture of” to
manufacturers. The Board concluded that confusion was unlikely, finding that
“[b]ecause of the differences in the channels of trade and customers for applicant’s
and the registrant’s goods, there is virtually no opportunity for confusion to arise.”
Id. at *4.
The involved identifications of goods here have no such limitations on the nature
of the goods, and the record shows that the “dietary supplements” identified in the

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’108 Registration and the “essential oils” identified in the ’818 Application are sold to
the same classes of end-user consumers. HerbalScience thus does not aid Applicant.
The second DuPont factor supports a conclusion that confusion is likely with
respect to the entirety of Class 3 in the ’818 Application.
C. Similarity or Dissimilarity of the Channels of Trade Channels
and Classes of Consumers76
As noted above, the third DuPont factor involves the “similarity or dissimilarity
of established, likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. As
Applicant purports to acknowledge, “[t]he analysis of the respective channels of trade
of the marks at issue is concerned with the identification[s] as set forth the
application and registration[ ] at issue, not real-world use.” 6 TTABVUE 4 (citing
Detroit Athletic Co., 903 F.3d at 1308).
1. The ’174 Application
Applicant discusses the third DuPont factor in its appeal brief in the ’174
Application. 6 TTABVUE 4-6. Applicant pays lip service to the principle that the
analysis of trade channels is based on the involved identifications, “not real-world
use,” id. at 4, but then proceeds to discuss such “real-world use,” arguing that its
“essential oils are offered exclusively through its own website and are not available
in brick-and-mortar stores or third-party ecommerce platforms,” while the cited
registrant’s “joint health supplements are sold both on its website and through
various ecommerce retailers.” Id. at 5 (record citations omitted). Applicant concludes
76 We will discuss the issue of the channels of trade for the goods and services identified in
the ’174 and ’818 Applications in separate sub-sections in this section of the opinion.

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that the “fact that both parties have websites does not mean their goods share the
same trade channels,” id., and that “there is no overlap in the parties’ channels of
trade, and no scenario in which consumers would encounter Registrant’s joint health
supplements alongside Applicant’s essential oils in any online or physical
marketplace.” Id.
The ’174 Application does not cover goods identified as “essential oils,” which are
the subject of the ’818 Application. “Essential oils” are among the many goods
featured in the Class 35 identification of “On-line retail store services,” but Applicant
does not address the channels of trade for the Class 35 services in its appeal brief.
a. Class 5
The “real-world use” restrictions argued by Applicant do not appear in the
identifications of the Class 5 goods in the ’174 Application and the ’108 Registration.
As discussed above, the “dietary supplements” described in the Class 5 identifications
of goods in the ’108 Registration and the ’174 Application are identical. “Because
the[se] goods are identical . . . and there are no restrictions on trade channels or
consumers in the [’174] Application and [’108] Registration, we must presume that
the[se] goods travel through all of the same channels of trade to all of the same classes
of purchasers.” August Storck KG v. Florend Industria e Comercio de Chocolates
LDTA, No. 91277224, 2025 WL 4107480, at *16 (TTAB 2025) (citing Cai, 901 F.3d at
1372 (“With respect to similarity of established trade channels through which the
goods reach consumers, the TTAB properly followed our case law and ‘presume[d]
that the identical goods move in the same channels of trade and are available to the
same classes of customers for such goods . . . .”)). The third DuPont factor supports a

Serial Nos. 98280174 and 98280818 (Consolidated)
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conclusion that confusion is likely with respect to the entirety of Class 5 in the ’174
Application. Id.
b. Class 35
As discussed above, there is an intrinsic relationship between the Class 5 “dietary
supplements” identified in the ’108 Registration (and in the ’174 Application) and the
Class 35 “On-line retail store services featuring . . . dietary and nutritional
supplements” identified in the ’174 Application, as amended. By definition, “dietary
supplements” are sold in part in the “online retail store” channel of trade featuring
those goods, and there is no limitation in the identification of goods in the ’108
Registration to any particular channels of trade, or any exclusion of the distribution
of the identified “dietary supplements” through an “online retail store.”
Applicant is correct that the Internet per se is not a “channel of trade,” 6
TTABVUE 5 (see, e.g., Inter IKEA Sys. B.V. v. Akea, LLC, No. 91196527, 2014 WL
1827031, at *10 (TTAB 2014) (citations omitted)), but the Internet provides the
platform through which various types of companies render “online retail store”
services, including those featuring dietary supplements. The third-party use evidence
discussed above in connection with the second DuPont factor shows that multiple
personal care goods companies provide services falling with the full scope of the
“online retail store services featuring . . . dietary and nutritional supplements”
identified in the ’174 Application, as amended, and sell “dietary supplements” in that
channel of trade, under the same mark, as Applicant itself intends to do. This is
significant evidence that the channels of trade are related. “Indeed, where one party
uses its mark on goods that are sold in retail stores that customarily vend those goods,

Serial Nos. 98280174 and 98280818 (Consolidated)
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it is clear that the trade channels and customers overlap.” Country Oven, 2019 WL
6170483, at *8. The third DuPont factor supports a conclusion that confusion is likely
with respect to the entirety of Class 35 in the ’174 Application. Id.
2. The ’818 Application
In the appeal in the ’818 Application, Applicant makes essentially the same
arguments regarding the dissimilarity of the channels of trade that it made in the
appeal in the ’174 Application. 6 TTABVUE 9-10. They fare no better here.
As is the case with respect to the identification of goods in the ’174 Application,
there are no trade channel- or consumer class-related limitations in the identification
of the “essential oils” in the ’818 Application, and, as noted above, there are no such
limitations in the “dietary supplements” identification in the ’108 Registration.
“Absent express limitations, the [involved] goods are presumed to travel in all normal
and usual channels of trade for those goods.” Iron Balls Int’l Ltd. v. Bull Creek
Brewing, LLC, No. 92079099, 2024 WL 2844425, at *23 (TTAB 2024) (citations
omitted).
The third-party use evidence discussed above in connection with the second
DuPont factor shows that one of the “normal and usual” channels of trade for both
“essential oils” and “dietary supplements” is the on-line retail stores of personal care
product companies. This overlapping channel of trade supports a conclusion that
confusion is likely with respect to the entirety of Class 3 in the ’818 Application.

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D. Summary of DuPont Factors
The key first and second DuPont factors, and the third factor, support a conclusion
that confusion is likely with respect to the involved goods and services identified in
both applications.
The REPRIEVE and REPREVE marks are quite similar when considered in their
entireties in both appeals. In the ’174 Application, the involved goods, channels of
trade, and classes of consumers are identical to those in the ’108 Registration, and
the involved Class 35 services, channels of trade, and classes of consumers are
intrinsically related to those in the ’108 Registration, based in part on evidence of
Applicant’s own stated intention to use the same mark for both the goods and the
services. In the ’818 Application, the involved Class 3 goods are closely related to the
involved Class 5 goods in the ’108 Registration because they are commonly sold under
the same mark in overlapping channels of trade to overlapping classes of consumers.
On the basis of the two records, we find that consumers with a general rather than
specific recollection of the cited REPRIEVE mark for dietary supplements who
separately encounter Applicant’s REPREVE mark for dietary supplements, “on-line
retail store services featuring . . . dietary and nutritional supplements,” and
“essential oils,” are likely to believe mistakenly that the involved goods and services
have a common source.
Decision: The refusal to register in the ’174 Application is affirmed. The refusal
to register in the ’818 Application is affirmed.