Alaven Consumer Healthcare, Inc. manufactures and sells Colonix non-prescription herbal supplements and intestinal cleansers under its house brand DrNatura. Alaven sued DrFloras LLC for trademark infringement, unfair competition, false advertising and other claims for using the trademark DrFloras for similar products. The federal district court dismissed the infringement and unfair competition claims without trial because the judge decided that DrNatura and DrFloras were not confusingly similar trademarks.

On appeal, the federal appeals court for the 11th Circuit concluded that the district court judge was right that there was insufficient evidence of likelihood of consumer confusion to require a trial. Alaven Consumer Healthcare, Inc. v. DrFloras, LLC, No. 10-1131 (11th Cir., 10/12/2010).

Both companies have federal registrations and/or pending applications for their trademarks. To see the marks please click here.

The side-by-side visual similarities are the “Dr” and “ra” elements of the marks and leaves in the design. As a whole, however, they don’t have the same appearance, pronunciation or meaning and the district court judge thought they were reasonably distinct from each other.

It is not unusual for trademarks for supplements to include “Dr” or a variation of “Natural” or “Nature.” There are over 200 active registrations and pending applications for trademarks for supplements containing “Dr” and over 400 for marks containing variations of “Natural” or “Nature.”

It looks like this case may have resulted from some tough marketplace competition between the products, which are similar and are marketed and distributed on the Internet to the same types of customers. Without an obvious showing of bad faith or any evidence of consumers who were confused to tip the balance, Alaven did not have a strong enough case to go to trial.