Trademark Trial and Appeal Board

Apr 22, 2011

No. 78856652 (T.T.A.B. Apr. 22, 2011)

Mailed:
April 22, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Maple Island, Inc.
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Serial No. 78856652
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Dean R. Karau of Fredrikson & Byron, P.A. for
Maple Island, Inc.

Margaret Power, Trademark Examining Attorney,
Law Office 103 (Michael Hamilton, Managing Attorney).
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Before Quinn, Cataldo and Bergsman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Maple Island, Inc. (“applicant”) filed an intent-to-
use application to register the mark MILKHOUSE GOODS, in
standard character form, for goods ultimately identified as
“powdered dairy-based beverage mixes,” in Class 29.
Applicant disclaimed the exclusive right to use the word
“Goods.”
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s
mark is likely to cause confusion with the previously
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77344386
2
registered mark MILKHOUSE CHEESE, in typed drawing form,1
and with a design, shown below2, for “cheese and butter,” in
Class 29. The registrant disclaimed the exclusive right to
use the word “Cheese.”

Our determination of likelihood of confusion under
Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the
factors bearing on the issue of likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the goods.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental
inquiry mandated by §2(d) goes to the cumulative effect of

1 Registration No. 2980453, issued August 2, 2005.
2 Registration No. 2980452, issued August 2, 2005; affidavits
under Sections 8 and 15 accepted and acknowledged.
Serial No. 77344386
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differences in the essential characteristics of the goods
and differences in the marks”).
A. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We turn first to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
De Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd., 9
USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6
USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks, we
are mindful that the test is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
terms of their overall commercial impression so that
confusion as to the source of the goods offered under the
respective marks is likely to result. San Fernando
Electric Mfg. Co. v. JFD Electronics Components Corp., 565
F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants
Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991),
aff’d unpublished, No. 92-1086 (Fed. Cir. June 5, 1992).
The proper focus is on the recollection of the average
Serial No. 77344386
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customer, who retains a general rather than specific
impression of the marks. Winnebago Industries, Inc. v.
Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975).
While the marks must be compared in their entireties,
in analyzing the similarity or dissimilarity of two marks,
there is nothing improper in stating that for rational
reasons, more or less weight has been given to a particular
feature of a mark. In re National Data Corporation, 753
F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). In the case
of marks consisting of words and a design, the words are
normally given greater weight because they would be used by
consumers to request the products. In re Dakin’s
Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999); In re
Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987).
Accordingly, the term “Milkhouse Cheese” is the dominant
portion of the registrant’s composite mark. In view
thereof, we will focus our analysis on registrant’s
MILKHOUSE CHEESE word mark.
The word “Milkhouse” is the dominate element of both
applicant’s mark and registrant’s marks because the
disclaimed words “Goods” in applicant’s mark MILKHOUSE
GOODS and “Cheese” in registrant’s marks MILKHOUSE CHEESE
Serial No. 77344386
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are generic terms and have no trademark significance. In
this regard, it is unlikely that consumers will use the
generic words “Goods” and “Cheese” to distinguish the
marks. To the contrary, consumers may perceive the
substitution of the word “Goods” for “Cheese” as
symbolizing an extension or variation of registrant’s
MILKHOUSE CHEESE product line.
The significance of the term “Milkhouse” as the
dominant element of applicant’s mark is further reinforced
by its location as the first part of the mark. See Presto
Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895,
1897 (TTAB 1988) (“it is often the first part of a mark
which is most likely to be impressed upon the mind of a
purchaser and remembered”). See also Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689,
1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part
of the mark VEUVE CLICQUOT because “veuve” is the first
word in the mark and the first word to appear on the
label); Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992) (upon encountering the marks, consumers must first
notice the identical lead word).
We find that the marks are similar in appearance,
sound, meaning, and commercial impression because they
Serial No. 77344386
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share the term “MILKHOUSE.” We are not persuaded by
applicant’s argument, unsupported by any evidence, that the
marks engender different commercial impressions. The word
“Milkhouse” means the “a building designed to remain cool,
where milk could be handled, cooled and bottled.”3
Applicant asserts that when MILKHOUSE CHEESE is used in
connection with cheese and butter, the mark engenders the
commercial impression of “fresh goods from the dairy farm.”4
However, when used in connection with powdered products,
applicant contends that the mark MILKHOUSE GOODS “evoke[s]
images of technology transforming milk into powder … a
beverage the Jetsons might drink or milk from the Star Trek
Enterprise.”5 We disagree. Nothing about the word
“Milkhouse” engenders a technological process; rather, it
creates the impression of a dairy farm.
We find that the marks are very similar in appearance,
sound, meaning and commercial impression.
B. The similarity or dissimilarity and nature of the
goods described in the application and registrations.

Applicant is seeking to register its mark for
“powdered dairy-based beverage mixes” and the cited marks
are registered for cheese and butter. The Examining

3 Applicant’s April 3, 2007 Response.
4 Applicant’s Brief, p. 12.
5 Applicant’s Brief, pp. 12-13.
Serial No. 77344386
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Attorney submitted the following evidence to show that
“powdered dairy-based beverage mixes” are related to cheese
and butter:
1. Eight use-based, third-party registrations for
products identified in the application and the
registrations.6 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 are of a
type which may emanate from a single source. In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993).
We did not consider Registration No. 2050461 for the
mark BANANA MOON and Registration No. 3111578 for the mark
ISLAMIC SERVICES OF AMERICA (attached to the September 25,
2006 Office Action) because they did not include products
encompassed by the term “powdered dairy-based beverage
mixes.” From the June 4, 2007 Office Action, we did not
consider Registration No. 2334824 for the mark LUCKY because
the goods at issue in this appeal had been deleted or
Registration No. 2754962 for the mark THE MILKY WHEY because
it was not for goods, but for distributorship services
featuring dairy products. Because a distributor may handle
a broad range of goods, the inclusion of powdered products,

6 June 4, 2007 Office Action.
Serial No. 77344386
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as well as cheese and butter in identifying the field in
which the distributorship services are rendered is not
particularly persuasive evidence that “powdered dairy-based
beverage mixes” and cheese and butter are related. See In
re Donnay International Societe Anonyme, 31 USPQ2d 1953,
1954 n.3 (TTAB 1994).
2. An excerpt from MacRAE’S BLUE BOOK, an “Industrial
Directory of YellowPages.Com” (macraesbluebook.com) listing
7 companies that manufacture the goods at issue.7
3. An excerpt from the website of AMPI Products, the
Associated Milk Producers, Inc. (ampi.com), describing the
organization’s cheese, butter and instant milk.
4. An excerpt from the website of Level Valley
Creamery (levelvalleydairy.com), a farm cooperative,
identifying butter and milk powders as some of its products.
5. A news article about Land O’ Lakes, Inc., a
cooperative of 2400 dairy farmers, found at
findarticles.com, reporting that the company processes milk
into butter, cheese and powdered milk.
6. An excerpt from the Organic Valley Family of Farms
website (organicvalley.coop/products_recipes/index.html)

7 The list of entries overlaps with other exhibits submitted by
the Examining Attorney.
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identifying butter, cheese and milk powders as company
products.
7. An excerpt from the Maryland & Virginia Milk
Producers Cooperative Association website (mdvamilk.com)
identifying, inter alia, the butter and milk powder products
its members produce.
The evidence establishes that the same companies
produce “powdered dairy-based beverage mixes” and cheese and
butter. Applicant argues, without any corroborating
evidence, that “[c]onsumers do not assume that the same
entity would be the source of cheese or butter and powdered
dairy-based beverage mixes,” “the marks are not marketed in
such a way that they would be encountered by the same
persons in situations that would create the incorrect
assumption that they originate from the same source,” and
“applicant’s goods and the cited goods are mutually
exclusive products marketed to wholly separate audiences.”8
The essence of applicant’s argument appears to be that
consumers will not confuse “powdered dairy-based beverage
mixes” with cheese and butter because they “are specific
products used for specific purposes.”9

8 Applicant’s Brief, pp. 2-6.
9 Applicant’s Brief, p. 6.
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In this regard, it is settled that it is not necessary
that the respective goods be identical or even competitive
in order to find that they are related for purposes of our
likelihood of confusion analysis. That is, the issue is
not whether consumers would confuse the goods themselves,
but rather whether they would be confused as to the source
of the goods. In re Rexel Inc., 223 USPQ 830, 831 (TTAB
1984). The goods need only be sufficiently related that
consumers would be likely to assume, upon encountering the
goods under similar marks, that the goods originate from,
are sponsored or authorized by, or are otherwise connected
to the same source. In re Martin’s Famous Pastry Shoppe,
Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984);
In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991); and
In re International Telephone & Telegraph Corp., 197 USPQ
910, 911 (TTAB 1978).
In view of the foregoing, we find that the Examining
Attorney has made a prima facie case that “powdered dairy-
based beverage mixes” are related to cheese and butter and
that applicant has failed to rebut the evidence of record.
C. The similarity or dissimilarity of likely-to-continue
trade channels and classes of consumers.

There is no evidence in the record regarding the
channels of trade or classes of consumers for “powdered
Serial No. 77344386
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dairy-based beverage mixes” and cheese and butter.
Nevertheless, it is common knowledge that these products are
sold in supermarkets to ordinary consumers. In its brief,
applicant explains that “[p]owdered dairy-based mixes are
sold with dry goods like flour or sugar, rather than in the
refrigerated ‘dairy case’ in the supermarket.”10 Thus,
applicant has conceded that the products are sold in
supermarkets.
Applicant also explains that consumers who purchase
“powdered dairy-based beverage mixes” “need a product with a
long shelf-life, or a product that is small, light and does
not require refrigeration for wilderness camping trips, or a
product to stretch their family budgets, or they have some
specific baking need that requires powdered dairy-based
beverage mixes.”11 These are the same consumers that
purchase cheese and butter as basic grocery items albeit
with a specific purpose for purchasing “powdered dairy-based
beverage mixes.” In fact, a consumer familiar with
registrant’s cheese and butter may mistakenly believe that
applicant’s “powdered dairy-based beverage mixes” emanate
from registrant because of the similarity of the marks.
D. Balancing the factors.

10 Applicant’s Brief, p. 5.
11 Applicant’s Brief, pp. 5 and 9.
Serial No. 77344386
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In view of the similarity of the marks, the goods, the
channels of trade and the classes of consumers, we find
that applicant’s mark MILKHOUSE GOODS for “powdered dairy-
based beverage mixes” is likely to cause confusion with the
marks MILKHOUSE CHEESE and MILKHOUSE CHEESE and design for
cheese and butter.
Decision: The refusal to register is affirmed.