Amway Corp.

Trademark Trial and Appeal Board

Jun 1, 2000

No. 75334733 (T.T.A.B. Jun. 1, 2000)

Paper No. 9
BAC
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JUNE 1, 00
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Amway Corporation
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Serial No. 75/334,733
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Terence J. Linn of Van Dyke, Gardner, Linn & Burkhart, LLP
for Amway Corporation.
Teresa A. Lee, Trademark Examining Attorney, Law Office 111
(Craig Taylor, Managing Attorney)
_______
Before Walters, Chapman and Wendel, Administrative
Trademark Judges.
Opinion by Chapman, Administrative Trademark Judge:
Applicant has filed an application to register the
mark BANANA BOUNTY for “breakfast cereal.”1
The Examining Attorney has finally refused
registration under Section 2(d) of the Trademark Act, 15
U.S.C. §1052(d), on the ground that applicant’s mark, when
applied to its goods, so resembles the registered mark,

1 Application Serial No. 75/334,733, filed August 1, 1997. The
application is based on applicant’s claimed date of first use and
first use in commerce of February 1996. Applicant disclaimed the
term “banana.”
Ser. No. 75/334733
2
GOLDEN BOUNTY for “breakfast cereal,” as to be likely to
cause confusion, mistake or deception.2
Applicant appealed, and briefs have been filed.
Applicant did not request an oral hearing.
It is obvious that the goods are identical, as are the
channels of trade and the purchasers.
This case turns on a consideration of the similarity
or dissimilarity of the marks. See In re E. I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). It
is well settled that marks are considered in their
entireties, even if one feature may have more significance
than another. It is the impression created by the marks as
a whole that is important. See Opryland USA Inc. v. The
Great American Music Show Inc., 970 F.2d 847, 23 USPQ2d
1471 (Fed. Cir. 1992); and Kangol Ltd. v. KangaROOS U.S.A.
Inc., 974 F.2d 161, 23 USPQ2d 1945 (Fed. Cir. 1992). See
also, 3 J. Thomas McCarthy, McCarthy on Trademarks and
Unfair Competition, §23:41 (4th ed. 2000).
In the case before us, when considered in their
entireties, we find that applicant’s mark BANANA BOUNTY
presents a different commercial impression from that of the
cited registrant’s mark GOLDEN BOUNTY, in relation to the

2 Registration No. 2,100,172, issued September 23, 1997. The
claimed date of first use is August 15, 1996.
Ser. No. 75/334733
3
involved goods. Specifically, applicant’s mark connotes
“bounty” in the sense of a generous or large portion of
fruit (bananas) included in the breakfast cereal.
Moreover, this meaning or commercial impression of
applicant’s mark is augmented inasmuch as the record shows
that applicant owns Registration No. 2,107,010 issued
October 21, 1997, for the mark CRANBERRY APPLE BOUNTY for
“breakfast cereal,” with a disclaimer of the words
“cranberry apple.” The cited mark, on the other hand,
connotes “bounty” in the sense of an abundant yield from a
grain harvest.3
Applicant submitted with its brief photocopies of
eight third-party registrations which consist of or include
the word BOUNTY.4 We agree with the Examining Attorney that
these third-party registrations are not persuasive of
applicant’s position in this case. This is because third-

3 Applicant submitted Merriam-Webster’s Collegiate Dictionary
(10th ed.) definitions of the term “bounty” as follows: “1.
something that is given generously 2. liberality in giving:
generosity 3. yield esp. of a crop....”
4 Normally materials filed for the first time with the brief are
untimely and cannot be considered. However, we note that in its
brief (footnotes 1 and 2, as well as in the “certificate of
mailing” page) applicant refers to a request for suspension of
the appeal and remand to the Examining Attorney. There is no
request to suspend and/or to remand of record herein. In any
event, the Examining Attorney objected to the untimely evidence
and further argued that even if considered, she is not persuaded
thereby. Thus, even though the application was not formally
remanded to the Examining Attorney, her position is clear, and
the Board has considered the third-party registrations for
whatever, if any, probative value they have.
Ser. No. 75/334733
4
party registrations are of little weight in determining
likelihood of confusion as they are not evidence of use of
the marks shown therein and they are not proof that
consumers are familiar with them so as to be accustomed to
the existence of similar marks in the marketplace.
Moreover, none of the third-party registrations are for
breakfast cereal; rather they are for items such as candy,
seafood, stews and wine. See Helene Curtis Industries Inc.
v. Suave Shoe Corp., 13 USPQ2d 1618 (TTAB 1989).
Based on the ex-parte record before us, when the marks
are considered in their entireties as the purchasing public
views them, we find that the sound, appearance, and
commercial impressions created by the two involved marks
are dissimilar.
Decision: The refusal to register under Section 2(d)
is reversed.
C. E. Walters
B. A. Chapman
H. R. Wendel
Administrative Trademark Judges,
Trademark Trial and Appeal Board