Agri-processors Corp.

Trademark Trial and Appeal Board

May 12, 2004

No. 76364894 (T.T.A.B. May. 12, 2004)

Mailed:
F May 12, 2004

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Agriprocessors Corporation
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Serial No. 76364894
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Jennifer D. Silverman for Agriprocessors Corporation.
Christopher S. Adkins, Trademark Examining Attorney, Law
Office 113 (Odette Bonnet, Managing Attorney).
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Before Hanak, Holtzman and Rogers, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Agriprocessors Corporation (applicant) seeks to
register in typed drawing form SAMSON’S KOSHER for “Kosher
beef.” The intent-to-use application was filed on January
30, 2002. At the request of the Examining Attorney,
applicant disclaimed the exclusive right to use KOSHER
apart from the mark in its entirety.
Citing Section 2(d) of the Trademark Act, the
Examining Attorney has refused registration on the basis
that applicant’s mark, as applied to applicant’s goods, is
THIS OPINION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76364894
2
likely to cause confusion with the mark SAMSON’S SAUCE
previously registered in typed drawing form for “sauces,
excluding cranberry sauce and applesauce.” Registration No.
2,370,420.
When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining
Attorney filed briefs. Applicant did not request a
hearing.
In any likelihood of confusion analysis, two key,
although not exclusive, considerations are the similarities
of the marks and the similarities of the goods. Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976)(“The fundamental inquiry mandated
by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods
and differences in the marks.”).
Considering first the marks, we are obligated to
compare the marks “in their entireties.” In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749, 750 (Fed. Cir.
1985). The only arbitrary portion of both marks is the
name SAMSON’S. Indeed, both registrant and applicant
depict this arbitrary portion in the exact same manner,
that is to say, with an apostrophe. The SAUCE portion of
registrant’s mark is obviously descriptive of sauces. It
Ser. No. 76364894
3
has been disclaimed. Likewise, the KOSHER portion of
applicant’s mark is descriptive of Kosher beef. It too has
been disclaimed. Hence, in comparing the two marks, we
have given limited weight to the words SAUCE and KOSHER.
National Data, 224 USPQ at 751 (“That a particular feature
is descriptive … with respect to the involved goods or
services is one commonly accepted rational for giving less
weight to a portion of the mark.”)
Moreover, both marks are depicted in typed drawing
form. This means that the marks are not limited to being
“depicted in any special form,” and hence we are mandated
“to visualize what other forms the mark[s] might appear
in.” Phillips Petroleum Co. v. C.J. Webb Inc., 442 F.2d
1376, 170 USPQ 35, 36 (CCPA 1971). See also INB National
Bank v. Metrohost Inc., 22 USPQ2d 1585, 1588 (TTAB 1992).
For example, registrant is perfectly free to depict the
arbitrary portion of its mark SAMSON’S in large lettering
on one line, and the descriptive portion of its mark
(SAUCE) on a second line in smaller lettering. Likewise,
applicant would be free to depict its mark in a similar
manner, namely, with SAMSON’S in large lettering on one
line, and the descriptive term KOSHER in smaller lettering
on a second line. When so depicted, the marks would be
extremely similar. Thus, the first Dupont “factor weighs
Ser. No. 76364894
4
heavily against applicant” because applicant’s mark could
be depicted in a manner such that it was extremely similar
to the registered mark. In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir.
1984).
Turning to a consideration of applicant’s goods and
registrant’s goods, we note that because the marks could be
depicted in extremely similar fashions, their
contemporaneous use can lead to the assumption that there
is a common source “even when [the] goods or services are
not competitive or intrinsically related.” In re Shell Oil
Co., 922 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993).
However, in this case we find that applicant’s goods and
registrant’s goods are clearly related. Registrant’s
identification of goods is broad enough to include sauces
of all types, with the exception of cranberry sauce and
applesauce. Thus, registrant’s identification of goods is
broad enough to include meat sauces, and applicant does not
contend to the contrary.
Obviously, meat sauces and beef, including Kosher
beef, are complementary items. The Examining Attorney has
made of record dozens of third-party registrations showing
that the same marks are registered for both beef and
sauces. Moreover, the Examining Attorney has conducted an
Ser. No. 76364894
5
Internet search and located articles demonstrating that
there are, in particular, Kosher meat sauces. An article
appearing in the June 17, 2002 edition of Kosher Today
Newsletter contains the following sentences: “Kosher food
distributors say that sauces are a major source of growth
in the kosher industry. Many of the small kosher food
companies have greatly expanded their line of kosher
sauces, including many that are kosher for Passover.
Kosher sources say that a large number of sauces produced
by companies all over America have also opted for kosher
certification. … The sector accounted for nearly $3
billion in sales in 2001 and is poised to continue strong
growth for the next five years.” A Google search for
“kosher sauces” turned up dozens of different brands of
Kosher sauces including “gourmet barbecue sauces.”
Finally, an article appearing in the September 1, 2003
edition of About Judiasm is entitled “Sauces, Spices and
Condiments.” This article states that “Jewish food doesn’t
have to be bland,” and that there are sauces for various
types of meats.
Given the fact that the marks are extremely similar
and are used on closely related goods, we find that there
exists a likelihood of confusion.
Decision: The refusal to register is affirmed.