Astra Foods, Inc.

Trademark Trial and Appeal Board

Aug 7, 2000

No. 75265675 (T.T.A.B. Aug. 7, 2000)

Paper No. 13
HRW
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 8/7/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Astra Foods, Inc.
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Serial No. 75/265,675
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Stephen G. Stanton for Astra Foods, Inc.
Tracy Whittaker-Brown, Trademark Examining Attorney, Law
Office 111 (Craig Taylor, Managing Attorney).
_______
Before Walters, Wendel and McLeod, Administrative Trademark
Judges.
Opinion by Wendel, Administrative Trademark Judge:
Astra Foods, Inc. has filed an application to register
the mark SOUTH STREET BRAND for “high quality meat for
steak sandwiches.”1
Registration has been finally refused under Section
2(d) of the Trademark Act, on the ground of likelihood of
confusion with the mark SOUTH STREET, which is registered

1 Serial No. 75/265,675, filed March 28, 1997, claiming first use
dates of April 1992. A disclaimer has been made of the word
BRAND.
Ser No. 75/265,675
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for cheese.2 Applicant and the Examining Attorney have
filed briefs, but an oral hearing was not requested.3
We make our determination of likelihood of confusion
on the basis of those of the du Pont factors4 which are
relevant under the circumstances at hand. Two key
considerations in our analysis are the similarity or
dissimilarity of the respective marks and the similarity or
dissimilarity of the goods in connection with which the
marks are being used. See In re Azteca Restaurant

2 Registration No. 1,583,814, issued February 20, 1990. Section 8
& 15 affidavits accepted and acknowledged, respectively.
3 Applicant argues in its reply brief that the Examining
Attorney’s brief was not timely filed and accordingly should not
be made of record or considered in this appeal. Applicant
maintains that under Trademark Rule 2.142(b) the Examining
Attorney’s brief was due sixty days after applicant’s brief was
received by the Office, namely, sixty days after September 29,
1999. Following this reasoning, the Examining Attorney’s brief
would have been due November 29, 1999. The brief was not mailed
to applicant until December 6, 1999.
Applicant’s interpretation of Trademark Rule 2.142(b) is not
correct. The rule states that “the examiner shall, within sixty
days after the brief of the appellant is sent to the examiner
file with the Trademark Trial and Appeal Board a written
brief...” The brief is sent to the examiner by the Board after
the appellant’s brief is received at the Board and associated
with the application file. The sixty day period begins to run
when the Board sends the application file containing the
appellant’s brief back to the Examining Attorney, not when the
brief is received in the Office or is sent to the Board. See
TMEP § 1501.02. In the present case, there is a Board order
dated October 6, 1999 in the file returning the case to the
Examining Attorney for her brief. Accordingly, the Examining
Attorney’s brief filed (and mailed to applicant) on December 6,
1999 was timely (December 5, 1999 being a Sunday) and has been
given full consideration.
4 In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973).
Ser No. 75/265,675
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Enterprises, Inc., 50 USPQ2d 1209 (TTAB 1999) and the cases
cited therein.
Looking to the marks, we agree with the Examining
Attorney that the dominant portion of applicant’s mark is
SOUTH STREET. While it is true that marks must be
considered in their entireties in determining likelihood of
confusion, it is also well established that there is
nothing improper in giving more or less weight to a
particular portion of a mark. See In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985).
Moreover, although disclaimed matter cannot be ignored, the
fact remains that purchasers are more likely to rely on the
non-descriptive portion of the mark as the indication of
source. See Hilson Research Inc. v. Society for Human
Resource Management, 27 USPQ2d 1423 (TTAB 1993).
Although applicant argues that the additional term
BRAND in its mark creates a difference in appearance,
sound, and connotation, we find any differences resulting
from the presence of this term, which are only in
appearance and sound, to be insignificant in comparison
with the high degree of similarity in connotation and
resultant commercial impression of the two marks. As
pointed out by the Examining Attorney, the term BRAND
merely serves as a indication that this is a product or
Ser No. 75/265,675
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part of a product line identified by the SOUTH STREET mark.5
Its role in the mark itself is minimal. Thus, we find the
overall commercial impressions created by the two marks to
be virtually the same. Applicant’s further argument that
its specimen clearly states the source of the goods is
irrelevant to the issue before us; applicant is seeking
registration of the mark SOUTH STREET BRAND, without any
obligation to use the mark in conjunction with an
additional indication of source.
Turning to the goods, we agree with the Examining
Attorney that applicant’s meat for steak sandwiches and
registrant’s cheese are complementary food items, and as
such, the use of similar marks thereon would be likely to
cause confusion. Even though the meat and cheese products
involved may be distinctly different in type, as argued by
applicant, the complementary nature of the products and the
frequent use of the products together is a relevant factor
in the determination of likelihood of confusion. See In re
Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984). Applicant itself has

5 The Examining Attorney has made of record the following
dictionary definitions:
brand a. A trademark or distinctive name identifying
a product or a manufacturer.
b. A product line so identified: a popular brand
of soap.
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acknowledged that its product may be “combined with some
cheeses to create, for example, a cheese steak sandwich.”
We find the circumstances here very similar to those in In
re Vienna Sausage Manufacturing Co., 230 USPQ 799 (TTAB
1986), wherein the Board held sausage and cheese to be
related food products in view of their frequent use
together not only in the preparation of main dishes, but
also as sandwich ingredients.
In addition, the Examining Attorney has made of record
several third-party registrations showing that the same
entities have registered a single mark for both meats and
cheese. Although these registrations are admittedly not
evidence of actual use of the marks in commerce, they are
adequate to suggest that these are types of food products
which may emanate from the same source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993); In re Mucky
Duck Mustard Co., 6 USPQ2d 1467 (TTAB 1988). Thus, when
highly similar marks are used on these two food products,
purchasers may well assume a common source.
Applicant places great weight in the fact that its
meat products are sold only through wholesale channels of
trade to sophisticated store owners for use in restaurants,
whereas registrant’s goods are allegedly sold through
retail channels of trade. There are no limitations,
Ser No. 75/265,675
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however, in either the application or the registration as
to the channels of trade, and thus it must be presumed that
the goods of both would travel in all the normal channels
of trade for goods of this type. See Kangol Ltd. v.
KangaROOS U.S.A. Inc., 974 F.2d 161, 23 USPQ2d 1945 (Fed.
Cir. 1992) and the cases cited therein. Accordingly, we
must make our determination of the likelihood of confusion
on the assumption that the food products of both would be
encountered by the same potential purchasers in the same
retail outlets, such as supermarkets and the like. Not
only would these items be purchased in the same retail
outlets but also they might very well be purchased at the
same time for use together in the preparation of
sandwiches. Applicant’s arguments with respect to
sophisticated purchasers or use of its products only in a
restaurant such that the public would never see applicant’s
mark are to no avail.
Finally, applicant argues that we must take into
consideration the lack of any evidence of actual confusion
since applicant began using its mark in 1992 and the five
declarations by wholesale purchasers which applicant has
made of record supporting this lack of actual confusion.
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In the first place, there has been no opportunity to
hear from the registrant on this point and, accordingly,
applicant’s assertions of no confusion can only be given
limited probative weight. See In re National Novice Hockey
League, Inc., 222 USPQ 638 (TTAB 1984). Furthermore, the
declarations are limited to the wholesale level of sales,
whereas the application is not so restricted. We have no
evidence with respect to the lack of actual confusion on
the retail level.
Accordingly, upon consideration of the relevant du
Pont factors, and, particularly, the high degree of
similarity of the respective marks and the related nature
of the food products upon which these marks are being used,
we find confusion likely.
Decision: The refusal to register under Section 2(d)
is affirmed.
C. E. Walters
H. R. Wendel
L. K. McLeod
Administrative Trademark Judges,
Trademark Trial and Appeal Board
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