Atlas Flowers, Inc. d/b/a Golden Flowersv.Golden Vision Flower Inc.

Trademark Trial and Appeal Board

Dec 19, 2012

No. 92050966 (T.T.A.B. Dec. 19, 2012)

Mailed: December 19, 2012 Hearing: June 13, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Atlas Flowers, Inc. d/b/a Golden Flowers
v.
Golden Vision Flower Inc.
_____

Cancellation No. 92050966
_____

Tal S. Benschar of Kalow & Springut LLP, for Atlas Flowers,
Inc. d/b/a Golden Flowers.

Lori T. Milvain, Esq. (Jeffrey S. Dawson, Esq. filed the
brief and appeared at argument), for Golden Vision Flower
Inc.1
_____

Before Mermelstein, Wellington, and Ritchie, Administrative
Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Atlas Flowers, Inc. d/b/a Golden Flowers (“petitioner”) has
petitioned to cancel Registration No. 3074073 for the mark

1 On October 2, 2012, after the oral hearing was held on this
case, Mr. Dawson filed a request to withdraw as attorney, for the
reason that he is “discontinuing the practice of law.” However,
the motion notices that respondent “requests that proceedings not
be suspended on the basis of this Motion.” We grant Mr. Dawson’s
request to withdraw, and note the appearance of Lori Milvain in
his place. In any regard, as the case was fully briefed, and a
hearing already held, we agree that there would be no reason to
delay our decision based on the withdrawal of counsel.
THIS OPINION IS A NOT
PRECEDENT OF
THE TTAB
Cancellation No. 92050966
2
GOLDEN VISION FLOWERS INC. and design, as shown below, owned
by Golden Vision Flower Inc. (“respondent”)2:

The registration issued on March 28, 2006, on the Principal
Register. The goods are identified therein as “cut flowers,
dried flowers and live flowers; flower bulbs; flower seeds;
live flowering plants; dried plants and live plants; grass
and grass seeds; fresh herbs and raw herbs; live orchids,”
in International Class 31.
In its petition for cancellation, petitioner asserts
that since prior to respondent’s first use of its mark,
petitioner has continuously used in commerce the mark GOLDEN
FLOWERS3 and GOLDEN FLOWERS and design,4 as shown below in
connection with the services listed in its pending trademark

2 Application Serial No. 76594946, which matured into the
registration at issue, was originally filed as an intent to use
application on June 1, 2004, and later amended to claim first use
on June 1, 2004, and first use in commerce on December 1, 2004,
and disclaiming exclusive rights to use the term “FLOWER INC.”
apart from the mark as shown.
3 Application Serial No. 77571430 was filed on September 16,
2008, claiming first use and first use in commerce on December
31, 2000, and disclaiming exclusive rights to use the term
“FLOWERS” apart from the mark as shown.
4 Application Serial No. 77571417 was filed on September 16,
2008, claiming first use and first use in commerce on February 1,
2003, and disclaiming exclusive rights to use the term “FLOWERS”
apart from the mark as shown.
Cancellation No. 92050966
3
applications for: “fresh cut flowers” in International Class
31 (Second Am’d Petition at Para. 3):

Petitioner also asserts ownership of two pending
applications that have been refused registration by the
Trademark Examining Operation under Section 2(d) of the
Trademark Act on the basis of a likelihood of confusion with
the mark in respondent’s Registration No 3074073. (Second
Am’d Petition at Para. 2).
Petitioner alleges that by virtue of its prior use of
its mark GOLDEN FLOWERS and design,5 it has built up
valuable goodwill therein which would be jeopardized by the
continued registration of respondent’s mark given the “high
likelihood of confusion.” (Second Am’d Petition at Para. 3).
Petitioner further brings this cancellation proceeding on
the ground that respondent committed fraud on the PTO on the

5 In its brief, petitioner only argued as to its rights in its
design mark, and respondent followed suit. Accordingly we only
address that mark and not the standard character mark in this
decision, and we consider any arguments by petitioner regarding
the standard character mark to be waived.
Cancellation No. 92050966
4
two alternative grounds that respondent filed a Statement of
Use which 1) was signed by “Li Yin Chuang, President” when
Ms. Chuang was “not the President of Registrant at that time
or at any other time.” (Second Am’d Petition at Para. 14);
and 2) contained false information that respondent was using
the mark GOLDEN VISION FLOWER INC. and design on all of the
goods in respondent’s registration, specifically, “cut
flowers, dried flowers and live flowers; flower bulbs;
flower seeds; live flowering plants; dried plants and live
plants; grass and grass seeds; fresh herbs and raw herbs;
live orchids,” when in fact respondent “has never used its
mark (or indeed engaged in any commerce) with respect to any
of the products listed other than Live Orchids.” (Id. at
Para. 11; emphasis in original). On the same basis as the
latter lack of use of all the goods, petitioner further
brings this cancellation proceeding on a third ground, which
is “lack of use in commerce.” Id. at Paras. 7-9.
Respondent’s answer denied the salient allegations of
the petition, and asserted various affirmative defenses,
including that third party use and registrations render the
shared term “GOLDEN” and “FLOWER/S” highly suggestive and
render petitioner’s rights “narrow in scope”; that the
commercial impression of the marks is “distinctly
different”; that “the parties have harmoniously used their
marks simultaneously for over seven years” without actual
Cancellation No. 92050966
5
confusion resulting; that petitioner “was constructively
aware of Registrant’s registration and use of its marks and
failed to take any action to prevent said use;” and that
respondent had “no intent to deceive. . . . at most [any
mistake resulted from] a language barrier.”
Both parties filed trial briefs, and petitioner filed a
reply brief. At the request of petitioner a hearing was
held and presided over by this panel on June 13, 2012.
The Record
The record in this case includes the pleadings and the
file of the involved registration. In addition, during its
assigned testimony period, petitioner submitted:
1. Discovery deposition6 of Shih Wen Huang, dated
December 9, 2009.
2. Discovery deposition of Shun Chi Huang, dated March
14, 2010.
3. Discovery deposition of Li Ying Chuang, dated May
14, 2010.
4. Petitioner’s Notice of Reliance, including
a. registrant’s corporate filings;

6 This discovery deposition was submitted with a stipulation to
use the testimony at trial. The parties apparently agreed to
this for the other discovery depositions as well. They both
treated the discovery as though it was testimony of record. We
do the same.
Cancellation No. 92050966
6
b. the Statement of Use for the application that
matured into the subject registration;
c. registrant’s answers to interrogatories.
Respondent submitted:
1. Rule 30(b)(6) discovery deposition, with
accompanying exhibits, of Alejandro Bayona, dated
June 3, 2010.
2. Notice of Reliance including:
a. Petitioner’s answers to discovery requests.
b. Corporate filings with the state of Florida.
c. Deposition exhibits.
Standing
As discussed below, Petitioner has established its
common-law rights in the mark GOLDEN FLOWERS, and design,
and has thereby established its standing to bring this
proceeding. Furthermore, petitioner’s witness has attested
that its applications were refused based on the subject
registration. (Bayona deposition at 27). Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185, 189 (CCPA 1982) (standing is established by a
party who has “a reasonable belief of damage” and a “real
interest in the proceeding.”) Accordingly, we find that
petitioner has established its standing to bring this
cancellation proceeding.

Cancellation No. 92050966
7
Priority of Use
To establish priority on a likelihood of confusion
claim brought under Trademark Act §2(d), a party must prove
that, vis-à-vis the other party, it owns “a mark or trade
name previously used in the United States … and not
abandoned….” Trademark Act Section 2, 15 U.S.C. §1052. A
party may establish its own prior proprietary rights in a
mark through ownership of a prior registration, actual use
or through use analogous to trademark use, such as use in
advertising brochures, trade publications, catalogues,
newspaper advertisements and Internet websites which create
a public awareness of the designation as a trademark
identifying the party as a source. See Trademark Act §§2(d)
and 45, 15 U.S.C. §§1052(d) and 1127. See also T.A.B.
Systems v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879
(Fed. Cir. 1996), vacating Pactel Teletrac v. T.A.B.
Systems, 32 USPQ2d 1668 (TTAB 1994).
It is well settled that in the absence of any evidence
of earlier use, the earliest date upon which respondent may
rely is the filing date of its underlying application. See
Trademark Act Section 7(c), 15 U.S.C. §1057(c). See also
Larami Corp. v. Talk to Me Programs, Inc., 36 USPQ2d 1840
(TTAB 1995). In this case, and as noted above, the
application that matured into the registration at issue
herein was accorded a filing date of June 1, 2004.
Cancellation No. 92050966
8
Respondent’s witnesses testified that its actual first date
of use in commerce of the GOLDEN VISIONS FLOWER INC. and
design mark in connection with its identified services was,
as stated in the Statement of Use, June 1, 2004. (Shun Chi
Huang depo. at 25; Chuong depo at 39). This date comports
with the one alleged in the underlying application, and is
the earliest date upon which respondent is entitled to rely
for purposes of priority.
Inasmuch as petitioner has not pleaded ownership of any
registered trademark, petitioner must rely on its common-law
use of a mark to prove priority.7 In order for a plaintiff
to prevail on a claim of likelihood of confusion based on
its ownership of common-law rights in a mark, the mark must
be distinctive, inherently or otherwise, and plaintiff must
show priority of use. See Otto Roth & Co. v. Universal
Foods Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA 1981). We
find no issue as to the distinctiveness of petitioner's mark
as a whole.
In order to establish priority, petitioner must show
that it made use of its GOLDEN FLOWERS and design mark in
connection with its alleged services prior to January 1,
2004. In a case involving common-law rights, “the decision

7 We also note that petitioner's pleaded applications were filed
subsequent to the filing date of the application that matured
into respondent’s registration, both having been filed on
September 16, 2008, over four years after applicant’s filing
date.
Cancellation No. 92050966
9
as to priority is made in accordance with the preponderance
of the evidence.” Hydro-Dynamics Inc. v. George Putnam &
Company Inc., 811 F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir.
1987). In support of its claim of priority, petitioner’s
witness testified that it has been doing business under the
name GOLDEN FLOWERS since prior to 2002, when it developed
this design mark. (Bayona depo. at 45). An interrogatory
response from petitioner also states it has been using the
word mark GOLDEN FLOWERS since “at least as early as
December 2000.” (Response to Interrogatory #4). This was
used in connection with a different flower design, for which
petitioner had a prior registration, now abandoned,
Registration No. 2642650. (Bayona depo. at 12). The prior,
now-abandoned, mark is as shown below:

Petitioner developed the design for its pleaded common-
law mark shown below, and began to use the mark, in late
2002 (Bayona depo. at 12):
Cancellation No. 92050966
10

Petitioner’s price lists and advertisements collected
over the years display the pleaded mark on invoices since at
least 2003, and show use of petitioner’s pleaded mark in
commerce. (Bayona depo. at 21, Ex. 8 and 9). Petitioner
sells flowers. Id. at 13. The GOLDEN FLOWERS and design
mark is displayed on the boxes in which the flowers are
transported to the wholesalers which are petitioner’s
customer base. Id. at 45, 22-24.
Based on the entire record, including the
aforementioned testimony and evidence, we find that
petitioner has established common-law rights to the mark
GOLDEN FLOWERS and design for “fresh cut flowers,” with a
date of first use at least as early as Spring 2003, and
prior to respondent’s earliest priority date of June 1,
2004. We turn then to the likelihood of confusion analysis.
Likelihood of Confusion
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence that are relevant
Cancellation No. 92050966
11
to a likelihood of confusion. See In re E. I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See
also Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005); In re Majestic Distilling Company, Inc., 315
F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and
the similarities between the goods or services. 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
differences in the essential characteristics of the goods
and differences in the marks”).
We have considered all of the du Pont factors for which
there is evidence and argument. The others, we consider to
be neutral.
The Goods and Channels of Trade
Petitioner has shown common-law rights in its GOLDEN
FLOWERS and design mark for “fresh cut flowers.” The
identification of goods in the subject registration is for
“cut flowers, dried flowers and live flowers; flower bulbs;
flower seeds; live flowering plants; dried plants and live
plants; grass and grass seeds; fresh herbs and raw herbs;
Cancellation No. 92050966
12
live orchids.” Accordingly, since both identify “cut
flowers,” the goods are identical-in-part. Furthermore, as
to the other goods, petitioner’s witness has testified as to
the similarity of the orchids sold by respondent and the
various flowers sold by petitioner. (Bayona depo. at 54, 60
and Ex. 15).
Regarding the channels of trade, petitioner’s witness
has testified that petitioner distributes its “fresh cut
flowers” exclusively through wholesalers and retail outlets
rather than direct to consumers.
Q: Who are your customers?
A: Our customers are wholesalers across the United
States and Canada. Fresh cut flower
wholesalers. Floral wholesalers across the
United States and Canada and retailers, retail
outlets, like supermarkets and e-commerce
companies, like the likes of pro flowers dot
com.
(Bayona depo. at 22-23)

The channels of trade for respondent are not limited in
its identification of goods, and would also be presumed to
include wholesalers and retail outlets. As such, the
channels of trade will at the very least, overlap.
Indeed, respondent’s witnesses have testified that
respondent sells to “wholesale customers.” (Shih Wen Huang
depo. at 20).
In other words, there is nothing that prevents the cut
flower and floral wholesalers who carry petitioner’s “fresh
Cancellation No. 92050966
13
cut flowers” from carrying respondent’s “cut flowers” and
other items, including “orchids,” as well. Petitioner’s
witness has testified that wholesaler chains such as DWF
Omaha and Green Leaf carry both flowers of the type sold by
petitioner and the orchids of the type sold by respondent,
thereby evidencing that they are sold through the same
channels of trade. (Bayona depo. at 40, 41, 48)
Accordingly, with in-part identical goods and overlapping
channels of trade, we find that these du Pont factors weigh
heavily in favor of finding a likelihood of consumer
confusion.
The Marks
The test, under this du Pont factor, 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 that
confusion as to the source of the goods or services offered
under the respective marks is likely to result. See Palm
Bay Imports, Inc. v. Veuve Clicquot, supra.
Petitioner’s mark consists of the words “GOLDEN
FLOWERS” underneath a design of a flower in a circle:
Cancellation No. 92050966
14

The term “FLOWERS” is descriptive if not generic for “fresh
cut flowers” and thus has little or no source-identifying
significance. In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 750 (Fed. Cir. 1985) (descriptive or disclaimed
matter is generally considered a less dominant portion of a
mark). Meanwhile, the drawing of the flower, while
certainly relevant to the commercial impression, serves to
emphasize the literal portion of the mark since it is,
indeed, a drawing of a flower. Moreover, it is, of course,
the words which consumers will use to call for, or refer to,
the design. CBS Inc. v. Morrow, 708 F.2d 1579, 1581-82
(Fed. Cir. 1983); In re Dakin’s Miniatures Inc., 59 UPSQ2d
1593, 1596 (TTAB 2001); In re Appetito Provisions Co., Inc.,
3 USPQ2d 1553, 1554 (TTAB 1987).
Accordingly, we find the term “GOLDEN,” which is also
in slightly larger font, to be the dominant portion of the
mark.
Cancellation No. 92050966
15
Similarly, respondent’s mark comprises the words
“GOLDEN VISION FLOWER INC.” alongside a design of a simple,
curled flower:

Again, the term “FLOWER INC.” is a descriptive or generic
term for the identified goods and an abbreviation for an
entity designation. This information is not distinctive and
does little or nothing to distinguish the mark. Akin to the
same manner employed in petitioner’s mark, the respondent’s
mark depicts a simple, curled flower which serves to
emphasize the literal portion of the mark and goods being
sold under the mark. Thus, with respondent’s mark, we find
the term “GOLDEN VISION” to be the dominant portion of the
mark.
In this regard, we note that while the two marks are
not the same number of words, they have a different design,
and one contains the word “VISION,” they are similar in that
they both contain a simple flower design, and, moreover,
they both begin with the identical word, “GOLDEN,” followed
by the descriptive/generic term “FLOWER/S” In re Denisi,
225 USPQ 624, 626 (TTAB 1985) (“the fact that [applicant’s]
Cancellation No. 92050966
16
mark herein [PERRY’S PIZZA] incorporates the descriptive
term ‘pizza’ as part of the mark presented for registration
does not obviate the likelihood of confusion with the mark
of the cited registration [PERRY’S]”); Johnson Publishing
Co. v. International Development Ltd., 221 USPQ 155, 156
(TTAB 1982) (EBONY for cosmetics and EBONY DRUM for
hairdressing and conditioner); In re South Bend Toy
Manufacturing Company, Inc., 218 USPQ 479, 480 (TTAB 1983)
(LIL’ LADY BUGGY for toy doll carriages is likely to cause
confusion with LITTLE LADY for doll clothing because “the
word ‘buggy’ is clearly descriptive of applicant’s doll
carriage products” and “would fail to alter the perceived
identity of the dominant and more arbitrary ‘LITTLE LADY’
and ‘LIL’ LADY’ elements of these marks”). We do not find
the addition of the word “VISION” to significantly change
the commercial impression of respondent’s mark, as it merely
indicates it is the “vision” of the flower that is golden as
compared with the flower itself. Nevertheless, with the
shared words, including the shared first term, it is likely
that consumers will not parse through these meanings.
On the balance, we find the commercial impressions of
the marks in their entireties to be similar and to outweigh
dissimilarities in sight and sound. Accordingly, we find
this du Pont factor to also weigh in favor of finding a
likelihood of consumer confusion.
Cancellation No. 92050966
17
Number and Nature of Third Party Uses
Next, we consider the number and nature of third-party
uses of the shared term “golden.” Respondent referred in
its brief to various registrations by mark and
identification (but not registration number) that include
either GOLD or GOLDEN for flowers or retail flower services.
In its reply brief, petitioner objected that the referenced
registrations are not of record. The objection is
sustained, and we have not considered this information.
Spirits Int’l B.V. v. S.S. Taris Zeytin Ve Zeytinyagi Tarim
Satis Kooperatifleri Birligi, 99 USPQ2d 1545, 1548 n.6 (TTAB
2011) (evidence attached to trial brief untimely); Trademark
Rule 2.122(e) (proper means of submitting official records).
We further note that the two “fictitious name”
registrations for “Golden Flowers” that respondent submitted
with its Notice of Reliance for the purpose of showing that
term is ubiquitous or highly suggestive hardly serve that
purpose. There is no evidence of their use, and
petitioner’s witness testified that he had never heard of
these businesses. (Bayona depo. at 35, 36). While we have
already indicated that the term “FLOWERS” is a generic/
descriptive term for petitioner’s “fresh cut flowers,” there
is simply insufficient evidence to make any assessment as to
the relative strength or weakness of the term “GOLDEN.”
Accordingly, we find this du Pont factor to be neutral.
Cancellation No. 92050966
18
Conditions of Sale and Consumer Sophistication
Respondent urges us to consider the sophistication of
its consumers. There is nothing in the record that would
give us insight as to the possible sophistication of
consumers of the relevant goods, however. See Alfacell
Corp. v. Anticancer, Inc., 71 USPQ2d 1301, 1306 (TTAB 2004)
(the applicable standard of care is that of the least
sophisticated consumer). Testimony indicates that
petitioner markets to wholesalers, but even assuming some
level of sophistication or knowledge, the evidence also
shows that the prices of the goods at issue, fresh cut
flowers, at the wholesale level, can be in the measure of
cents for boxes of flowers, which in turn indicates
conditions of sale wherein customers may be less inclined to
exercise a high degree of care. (Bayona depo, and Ex. 8).
Accordingly, we consider this du Pont factor to weigh
slightly in favor of finding a likelihood of confusion.
Actual Confusion
The final du Pont factor discussed by the parties is
the lack of verifiable instances of actual confusion.
Although respondent asserts that the absence of actual
confusion suggests no likelihood of confusion, it is well-
established that it is not necessary to show actual
confusion in order to establish likelihood of confusion.
See Weiss Associates Inc. v. HRL Associates Inc. 902 F.2d
Cancellation No. 92050966
19
1546, 223 USPQ 1025 (Fed. Cir. 1990). Thus, while evidence
of actual confusion, if it exists, would strongly support a
finding of likelihood of confusion, the absence thereof does
not necessarily overcome a finding of likelihood of
confusion. Accordingly, we find this du Pont factor also to
be neutral.
Conclusion
We have carefully considered all of the testimony and
evidence pertaining to priority of use and the relevant du
Pont factors, as well as all of the parties’ arguments with
respect thereto. We conclude that petitioner has
established priority of use of a mark on goods that are
identical-in-part and travel through overlapping trade
channels to generally unsophisticated consumers. We also
find the marks to have rather similar commercial
impressions. Accordingly, we find a likelihood of confusion
between the pleaded mark as to which petitioner has
established common-law rights, GOLDEN FLOWERS and design,
for “fresh cut flowers,” and the mark in the subject
registration, GOLDEN VISION FLOWER INC. and design, for “cut
flowers, dried flowers and live flowers; flower bulbs;
flower seeds; live flowering plants; dried plants and live
plants; grass and grass seeds; fresh herbs and raw herbs;
live orchids.”
Cancellation No. 92050966
20
DECISION: The petition to cancel is granted.8

8 In light of our decision, we find it unnecessary to consider
petitioner’s claims of nonuse in commerce and fraud.