The USPTO refused registration of the mark THE SCIENCE OF MEDICEUTICALS for, inter alia, nutritional supplements, finding it likely to cause confusion with the registered mark MEDICEUTICALS for, inter alia, skin and hair care products. On appeal, Applicant argued that, although these products may be offered under certain house brands, “the vast majority of sources of shampoo and skin care products are not sources of specialized supplements.” How do you think this came out? In re The Mediceutical Association, Inc., Serial No. 86779237 (March 28, 2018) [not precedential] (Opinion by Judge Anthony R. Masiello).

The Marks:The Board first found that the marks at issue create substantially similar commercial impressions. Applicant describes its goods as “science-based,” and furthermore the term MEDICEUTICALS on its face “contains suggestions of the words ‘medicine’ and ‘pharmaceuticals,’ both of which terms are related to ‘science.'” Similarly, Applicant’s mark invites customers to think about the scientific aspects of Applicant’s goods.

The Goods: The goods at issue are somewhat related because some skin and hair products are promoted as providing vitamins or minerals, or functioning as a nutritional supplement. In addition, Examining Attorney Laura M. Wright provided Internet evidence showing nutritional supplements and skin and hair care products offered by a single producer under the same mark: e.g., CVS, RITE AID, DR. BAUMANN, HERBALIFE NUTRITION.

Applicant argued that the offering of supplements and beauty products under mass-market house brands like CVS and RITE AID does not show relatedness such that consumers would mistakenly believe that these types of goods emanate from the same source. The Board agreed that house brands present less compelling evidence, but the record here included other examples than the two mass-market house brands. Moreover, “”[e]ven if not all producers of beauty products are also producers of supplements, that does not undercut the Examining Attorney’s position, for as the evidence demonstrates, an appreciable number of businesses offer both types of products under the same mark.”

The Board was persuaded that relevant consumers are likely to believe that the involved goods may come from a single source.

Trade Channels: Normal trade channels for the products at issue include drug stores, both brick-and-mortar and online. Also, the evidence showed that some makers of the products offer them at their own websites, and so customers are accustomed to seeing both types of products at the same online stores.

Conclusion: The Board found confusion likely and it affirmed the refusal.