August 1, 2012
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UNITED STATES: SUPER CHIRO TEA Not Super Enough to Overcome Opposition and Likelihood of Confusion
The Trademark Trial and Appeal Board (TTAB) determined that there was a likelihood of confusion between the marks SUPER CHIRO TEA, for “herbal teas for medicinal purposes,” and CHIRO-KLENZ, for “herbal teas for medicinal purposes; nutritional supplement for eliminating toxins from the body.” Edom Laboratories, Inc. v. Glenn Lichter, Opposition No. 91193427 (T.T.A.B. Mar. 30, 2012) (precedential).
Glenn Lichter filed an intent-to-use application for the mark SUPER CHIRO TEA. Edom Laboratories opposed the application on the ground that the SUPER CHIRO TEA mark was confusingly similar to its mark CHIRO-KLENZ. The parties stipulated that they would seek determination of the case through the TTAB’s Accelerated Case Resolution (ACR) procedure, under which the parties jointly file a stipulation of undisputed facts and submit additional evidence with their ACR briefs.
Based on the evidence submitted and the stipulated facts, the TTAB found that Edom Laboratories had continuously sold products under the CHIRO-KLENZ mark since the mid-1990s and that its products were sold through a network of health care professionals such as chiropractors, naturopaths, doctors, alternative health practitioners and health spas. The Board further found that Lichter began using the SUPER CHIRO TEA mark on or about August 12, 2009, and that his products were sold solely online and directly to lay consumers.
In its likelihood-of-confusion analysis, the TTAB first focused on the strength of Edom Laboratories’ CHIRO-KLENZ mark. The Board found that the use of KLENZ in the mark was suggestive, and not descriptive, of the goods. It further determined that CHIRO was not descriptive even though the CHIRO-KLENZ goods might be sold to some chiropractors because CHIRO was a “popular root form meaning ‘hand’ or ‘by the hand.’”
In its analysis of the similarity of the marks, the TTAB found that the word element CHIRO was the dominant portion of the SUPER CHIRO TEA mark because SUPER was “laudatory” and TEA was “generic for the goods.” It also found that CHIRO was the dominant portion of Edom Laboratories’ CHIRO-KLENZ mark because it was most likely to be remembered by a consumer as the first portion of the mark. Therefore, the TTAB found that the presence of CHIRO in both marks “create[d] a similar commercial impression that [was] not significantly changed by the addition of … SUPER and TEA in [the] applicant’s mark and … KLENZ in [the] opposer’s mark.” In fact, the Board opined, “consumers may believe that SUPER CHIRO TEA and CHIRO-KLENZ are different varieties of the CHIRO line of tea.” In addition, it determined that herbal teas were purchased by ordinary consumers who exercised no more than ordinary care in making their purchasing decisions.
Edom Laboratories also submitted evidence of actual confusion. Based on the evidence submitted, the TTAB agreed with Edom Laboratories that Lichter took “affirmative steps to cause confusion and to associate SUPER CHIRO TEA with CHIRO-KLENZ tea.” Lichter used the tag line “FROM THE ORIGINAL MAKERS OF CHIRO-KLENZ” on his product packaging. In addition, Lichter’s domain name www.chiroklenzforless.com redirected visitors to his www.superchirotea.com website. Moreover, Lichter’s product packaging and website indicated that his products originated from the original formulators of CHIRO-KLENZ tea. The TTAB found that Lichter’s actions in prior litigation between the parties also showed a pattern of bad faith. It therefore determined that Lichter had a bad-faith intent to cause, and profit from, consumer confusion.
Therefore, the TTAB found there was a likelihood of confusion between the marks, and it sustained the opposition.
Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.
© 2012 International Trademark Association