Bio Innovations, LP

This Opinion is Not a Precedent of the TTAB Mailed: June 2, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

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Trademark Trial and Appeal Board _____

In re Bio Innovations, LP

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Serial No. 98280174

Serial No. 98280818

(Consolidated)

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David W. Carstens of Carstens, Allen & Gourley, LLP for Bio Innovations, LP. Amanda Ruiz, Trademark Examining Attorney, Law Office 132, Brandon Marsh, Managing Attorney.

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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;¹and

(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

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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.⁴Because 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.

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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.⁶The Examining Attorney made of record USPTO electronic records regarding the cited registration,⁷and 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

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Applicant responded by arguing against the Section 2(d) refusal and requesting clarification regarding the required amendment.⁹Applicant 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.¹¹The 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;¹⁴pages from Applicant's website at bioinnovations.net;¹⁵a page from the

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MERRIAM-WEBSTER DICTIONARY showing no entry for the word "repreve;"¹⁶a page from Wikitionary.com regarding the French word "rêve;"¹⁷definitions of "rep" and

"reprieve" from the MERRIAM-WEBSTER DICTIONARY;¹⁸and the Declaration of Cynthia D. Becker, the President and Director of Aloha Noni, Inc., Applicant's general partner,¹⁹in 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,²¹and 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:

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The Examining Attorney refused registration based on the '108 Registration, making of record USPTO electronic records regarding it,²³and 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;²⁵a page from its Facebook (now Meta)

22 November 21, 2023 Application at TSDR 7.

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account;²⁶third-party webpages displaying a REPRIEVE product;²⁷pages from the website of the owner of the '108 Registration;²⁸and 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.³⁰The 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;³³an article on the website at clevelandclinic.org regarding reducing stress with aromatherapy;³⁴articles on the

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websites at healthline.com and herbalandhonor.com regarding essential oils;³⁵an article on the website at katanamrp.com regarding the manufacture of dietary supplements;³⁶an article on the website of hiyahealth.com regarding the production of vitamins and supplements;³⁷pages from the website of the owner of the '108 Registration;³⁸third-party webpages displaying a REPRIEVE product;³⁹pages from Applicant's website;⁴⁰a page from the MERRIAM-WEBSTER DICTIONARY showing no entry for the word "repreve;"⁴¹a page from Wikitionary.com regarding the French word "rêve;"⁴²definitions of "rep" and "reprieve" from the MERRIAM-WEBSTER DICTIONARY;⁴³and 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

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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,⁴⁶and 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."⁴⁷The 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

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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 4-7.⁴⁸Applicant 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 4-12.⁴⁹Applicant concludes

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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.

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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 7.⁵¹According to Applicant,

"[w]hen used in connection with Registrant's joint health supplements, this sense of relief makes sense." Id.⁵²

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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

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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."⁵³We 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

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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."⁵⁴There 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"⁵⁵without those accents. See Viterra, 671 F.3d at 1367 ("[T]here is no correct pronunciation of a

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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."⁵⁶Applicant'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).

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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),"⁵⁷but 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

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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

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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,

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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

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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.

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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

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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

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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

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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

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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,⁶²and 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"

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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,⁶³that 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.

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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,⁶⁵including 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

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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;⁷⁴and (10) Piping Rock (pipingrock.com), which offers goods described as "Supplements" and "Essential Oils"

under the Piping Rock mark.⁷⁵These 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

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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

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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

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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,

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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.