AOG Investments, LLC

Trademark Trial and Appeal Board

Oct 5, 2017

No. 86864638 (T.T.A.B. Oct. 5, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: October 5, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re AOG Investments, LLC
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Serial No. 86864638
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Phillip Thomas Horton, Esq.,
for AOG Investments, LLC.

Kim Saito, Law Office 124,
Lydia Belzer, Managing Attorney.
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Before Kuhlke, Ritchie, and Adlin,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
AOG Investments, LLC (“Applicant”) seeks registration on the Principal Register
of the mark SORELLA,1 in standard character format, for “coffee,” in International
Class 30. The mark contains a translation statement that “The English translation
of SORELLA in the mark is SISTERS.”

1 Application Serial No. 86864638 was filed on January 4, 2016, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), asserting applicant’s bona fide intent to use in
commerce. The Application also covers goods in International Class 34 which were not subject
to the refusal.

Serial No. 86864638
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
when applied to the identified goods, it so resembles the previously registered mark
SISTERS,2 in standard character format, for “coffee; salad dressings,” in
International Class 30, as to be likely to cause confusion, mistake, or to deceive. When
the refusal was made final, Applicant filed this appeal, which is fully briefed. For the
reasons discussed below, we affirm the refusal to register.
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence that are relevant to the factors set forth in In re
E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also
In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201 (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 (CCPA 1976). See
also In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
We consider the du Pont factors for which arguments or evidence were presented. The
other factors, we consider to be neutral.

2 Registration No. 3786174 issued May 4, 2010. Sections 8 and 15 affidavits have been
accepted and acknowledged.
Serial No. 86864638
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Goods/Channels of Trade
Both the application and the cited registration identify “coffee.” The goods are
therefore identical. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1912
(Fed. Cir. 2012).
Because the goods are identical, we must presume that the channels of trade and
classes of purchasers are also the same. See In re Viterra Inc., 101 USPQ2d at 1908
(even though there was no evidence regarding channels of trade and classes of
consumers, the Board was entitled to rely on this legal presumption in determining
likelihood of confusion). Applicant concedes “the similarity” of the goods and the
channels of trade.3 We find that these du Pont factors weigh heavily in favor of finding
a likelihood of consumer confusion.
The Similarity/Dissimilarity of the Marks
We consider and compare the appearance, sound, connotation and commercial
impression of the marks in their entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). In comparing the marks, we are mindful that the test is not whether they 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 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

3 4 TTABVUE 12.
Serial No. 86864638
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USPQ2d 1735, 1741 (TTAB 1991), aff'd mem., No. 92-1086 (Fed. Cir. June 5, 1992).
The proper focus is on the recollection of the average 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). When, as here, the goods are identical, the degree
of similarity between the marks which is required to support a finding of likelihood
of confusion is less than if the goods were not identical. In re Viterra Inc., 101 USPQ2d
at 1912.
Applicant’s mark is SORELLA, which according to the application itself means
“sisters.” The Examining Attorney also submitted an Italian to English translation of
“SORELLA” as “sisters.”4 The mark in the cited registration is SISTERS. The
doctrine of foreign equivalents applies when the “ordinary American purchaser”
would “stop and translate” a foreign mark into its English equivalent. Palm Bay
Imps, Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1377,
73 USPQ2d 1689, 1696 (Fed. Cir. 2005). The doctrine applies only where the English
translation is “literal and direct” with no contradictory evidence of other relevant
meanings or shades of meaning. TMEP 1207.01(b)(vi)(B) (April 2017). It is not an
absolute rule, and does not include dead or obscure languages. In re Spirits Int’l, N.V.,
563 F.3d 1347, 1351, 90 USPQ2d 1489, 1491 (Fed. Cir. 2009).

4 http://translation.babylon-software.com. Attached to the November 14, 2016 Final Office
Action, at 8.
Serial No. 86864638
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The doctrine of foreign equivalents has been applied to Italian words that have
English equivalents. In re Ithaca Indus., Inc., 230 USPQ 702 (TTAB 1986) (finding
similarity and likelihood of confusion between the arbitrary Italian term “LUPO” and
its English equivalent “WOLF” for items of clothing). In that case, the Board held
that “it does not require any authority to conclude that Italian is a common, major
language in the world and is spoken by many people in the United States.” Id. at 704-
705.
In that regard, the Examining Attorney here submitted Wikipedia evidence
stating that Italian is “the eighth most spoken language in the country” with “the 2nd
largest ethnic market in the US behind only the Hispanic market.”5 While the
Examining Attorney also submitted evidence that less than 1% of American
households speak Italian at home,6 and Applicant argues that this is insufficient to
apply the doctrine, we disagree. Italian is a relatively common, modern language.
Thus the doctrine of foreign equivalents is appropriate, and the commercial
impression and connotation of the marks, used on the same goods, is the same.
We find that the marks’ essentially identical commercial impressions and
connotations outweighs differences between their sight and sound, and this factor
also weighs in favor of finding a likelihood of confusion.

5 https://en.wikipedia.org. Attached to the November 14, 2016 Final Office Action, at 2.
6 Infoplease.com. Attached to the November 14, 2016 Final Office Action, at 5.
Serial No. 86864638
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Consumer Sophistication and Degree of Purchaser Care
Applicant urges us to consider consumers’ sophistication and degree of purchasing
care, asserting: “Traditionally, consumers of these goods are sophisticated insofar as
coffee goes, because consumers are picky about the company they choose to buy from
and the type of coffee they purchase.”7 Applicant has not presented any evidence,
however, that the consumers of coffee will necessarily have a particular level of
sophistication, or that the goods are necessarily of a particular price range as to
indicate a likelihood of elevated purchaser care. We must make our determination
based on the least sophisticated consumer, and we assume that coffee may be sold at
varying qualities and prices. Stone Lion Capital Partners, L.P. v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014) (affirming that TTAB
properly considered all potential investors for recited services, which included
sophisticated investors, but that precedent requires consumer care for likelihood-of-
confusion decision to be based “on the least sophisticated potential purchasers”).
Since we have to consider that coffee, sold at varying price levels, may be an impulse
purchase to the general public or at best is purchased with ordinary care for such
goods, we find this factor to favor finding a likelihood of confusion.
Actual Confusion and Potential for Confusion
Finally, Applicant urges us to consider the lack of actual confusion. The lack of
evidence of actual confusion carries little weight in an ex parte analysis, however. In
re Majestic Distilling Co., Inc., 65 USPQ2d at 1205. This is particularly so where, as

7 4 TTABVUE 13.
Serial No. 86864638
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here, the application is based on an intent-to-use and there has not yet been an
opportunity for confusion to occur. Accordingly, this factor is neutral.
II. Conclusion
On balance, after considering all of the arguments and evidence of record as they
pertain to the relevant du Pont factors, we find that the goods are legally identical
and presume they would travel through the same channels of trade to some of the
same general consumers, including as an impulse purchase. Furthermore, the
identical meaning of the marks, which have the same commercial impression, also
weighs in favor of finding a likelihood of confusion. Accordingly, we find a likelihood
of confusion between the mark SORELLA for “coffee” and the mark in the cited
registration, SISTERS, for “coffee, salad dressings.”
Decision: The refusal to register Applicant’s mark in International Class 30 is
affirmed. The application will proceed to publication in International Class 34.