Bashas’ Inc.

Trademark Trial and Appeal Board

Aug 16, 2012

No. 85329119 (T.T.A.B. Aug. 16, 2012)

Mailed:
August 16, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re Bashas’ Inc.
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Serial No. 85329119
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Jordan M. Meschkow of Meschkow & Gresham, P.L.C. for
Bashas’ Inc.

Michael A. Wiener, Trademark Examining Attorney, Law Office
108 (Andrew Lawrence, Managing Attorney).
_______

Before Bucher, Grendel and Bergsman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Bashas’ Inc. (“applicant”) filed an intent-to-use
application to register the mark SAVINGS LOCK, in standard
character form, for “retail grocery services,” in Class 35.
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. § 1052(d), on the ground that applicant’s
mark is likely to cause confusion with the previously
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 85329119
2
registered mark LOCKED-IN SAVINGS, in typed drawing form,
for “retail grocery store services,” in Class 35.1
Preliminary Issue
Applicant attached to its brief the search result
summaries from three trademark searches it conducted on the
USPTO electronic database. The examining attorney objected
to this evidence on the ground that it was not timely.
Applicant did not address the objection in its reply brief.
Trademark Rule 2.142(d) provides in relevant part that
the record in the application should be complete prior to
filing of an appeal, and that, after an appeal is filed, if
the applicant or examining attorney wishes to introduce
additional evidence, a request for remand should be filed.
Applicant did not file a request for remand. Accordingly,
the objection to evidence attached to applicant’s brief is
sustained and we have not considered it.
Likelihood of Confusion
Our determination of likelihood of confusion under
Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the
factors bearing on the issue of likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic

1 Registration No. 2542165, issued February 26, 2002; renewed.
Serial No. 85329119
3
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the
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”).
A. The similarity or dissimilarity and nature of the
services described in the application and
registration, the likely-to-continue channels of trade
and classes of consumers.

Applicant’s “retail grocery services” and registrant’s
“retail grocery store services” are legally identical.
Because the services described in the application and cited
registration are legally identical, we must presume that the
channels of trade and classes of purchasers are the same.
See American Lebanese Syrian Associated Charities Inc. v.
Child Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB
2011); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB
1994) (“Because the goods are legally identical, they must
be presumed to travel in the same channels of trade, and be
sold to the same class of purchasers.”). See also In re
Serial No. 85329119
4
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed.
Cir. 2012) (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).
In its reply brief, applicant argues that applicant
and registrant offer their services in geographically
remote trade areas.2 The fact that applicant and registrant
may presently perform their services in different trading
areas has no effect on our deliberations. The Section 7(b)
presumptions that registrant is owner of the registered
mark, that the registration is valid and subsisting, and
that registrant has the exclusive right to use the subject
mark in commerce, are not limited to the areas of actual
use of the mark, but extend to all parts of the United
States. We cannot limit our consideration of likelihood of
confusion to the trading areas presently occupied by
applicant and registrant. We are required to decide the
question of likelihood of confusion as if applicant's mark
and registrant’s mark are in use throughout the entire

2 To support its argument, applicant attached to its reply brief
the declaration of its Vice President attesting that applicant
and registrant render their services in different geographic
trading areas. However, as indicated above, the record in the
application should be complete prior to the filing of an appeal.
Accordingly, we have not considered the declaration in our
analysis.
Serial No. 85329119
5
United States. Giant Food Inc. v. Nations Foodservice,
Inc., 214 USPQ 641, 644 (TTAB 1982), reversed for other
reasons, 710 F.2d 1565, 218 USPQ 390 (Fed. Cir. 1983).
B. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We now turn to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
de Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd.,
8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co.,
6 USPQ2d 1041, 1042 (TTAB 1987). In comparing the marks,
we are mindful that where, as here, the services are
legally identical, the degree of similarity necessary to
find likelihood of confusion need not be as great as where
there is a recognizable disparity between the services.
Century 21 Real Estate Corp. v. Century Life of America,
970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen
Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007);
Schering-Plough HealthCare Products Inc. v. Ing-Jing Huang,
84 USPQ2d 1323, 1325 (TTAB 2007).
Serial No. 85329119
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Moreover, in comparing the marks, the test 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 so that confusion as to the source of the
services 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 USPQ2d 1735,
1741 (TTAB 1991), aff’d unpublished, 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). Since the services at issue are grocery
store services, we are dealing with average consumers.
The marks are similar in appearance and sound because
they share the words “Savings” and “Lock/Locked.” They
differ in that applicant’s mark SAVINGS LOCK is essentially
a transposition of registrant’s mark LOCKED-IN SAVINGS.
When the marks at issue comprise “reverse combinations of
the same elements, the primary concern is that ordinary
prospective purchasers, not being infallible in their
Serial No. 85329119
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ability to recall trade designations, may transpose the
elements in their minds and, as a result, mistakenly
purchase the wrong products or engage the wrong service.”
In re Best Products Co., Inc., 231 USPQ 988, 989 (TTAB
1986). Such transposition may lead to confusion where the
marks evoke the same or substantially the same commercial
impression. Id. See also Carlisle Chemical Works, Inc. v.
Hardman & Holden Limited, 434 F.2d 1403, 168 USPQ 110 (CCPA
1970) (COZIRC driers for paints and varnishes v. ZIRCO
catalytic agents used in the manufacture of drier
compositions; thought to be complementary products composed
of cobalt and zirconium); Royal Crown Cola Co. v. Bakers
Franchise Corp., 150 USPQ 698 (TTAB 1966), aff'd, 404 F.2d
985, 160 USPQ 192 (CCPA 1969) (RITE DIET for low fat milk
v. DIET-RITE for low calorie soft drinks; identical
commercial impressions suggesting the same characteristic
of the related goods); compare, e.g., In re Mavest, Inc.,
130 USPQ 40 (TTAB 1961) (SQUIRETOWN for men's sport clothes
v. TOWN SQUIRES for men's shoes; different commercial
impressions, albeit resulting from the reversal of nearly
identical elements); McCallum-Legaz Fish Co. v. Frozen Food
Forum, Inc., 118 USPQ 178 (Com'r Pats. 1958) (FROSTY SEAS
for frozen sea food products, including deviled crabs, fish
sticks, shrimp, skinless haddock, cod, flounder, ocean
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perch and ocean catfish v. SEAFROST for frozen salmon and
halibut and frozen whole halibut, whole salmon, and steaks
and fillets therefrom; different commercial impressions --
cold sea water versus white frost crystals).
Conceding the case before us is a close one, we find
that the comparison of SAVINGS LOCK and LOCKED-IN SAVINGS
falls in the former category. SAVINGS LOCK means and
engenders the commercial impression of sure savings, a
certainty.3 LOCKED-IN SAVINGS means and engenders the
commercial impression of secured savings, not subject to
change.4 Both marks indicate that prospective consumers can
be sure that they will receive savings. Thus, the marks
have similar meanings and engender similar commercial
impressions and, therefore, the reversal of the words is
not sufficient to distinguish them.
Applicant argues, without any evidentiary support,
that “[i]n the retail and retail grocery services field,
LOCK normally suggests shop-at-me-ability.”5 There is

3 The word “lock” is defined as, inter alia, “a sure thing, a
certainty: His promotion is a lock.” Yahoo!Education website
(yahoo.com) attached to the Examining Attorney’s Brief. The
Board may take judicial notice of dictionary evidence.
University of Notre Dame du Lac v. J. C. Gourmet Food Imports
Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
4 The term “locked-in” is defined as “not subject to adjustment:
Fixed ‘locked-in interest rates.’” Merriam-Webster website
(Merriam-webster.com) attached to the Examining Attorney’s Brief.
5 Applicant’s Brief, unnumbered page 3.
Serial No. 85329119
9
nothing in the record or in the definition of the word
“lock” or the term “locked-in” that supports this argument.
Moreover, since the marks at issue are SAVINGS LOCK and
LOCKED-IN SAVINGS, we do not see how applicant’s focus on
the words “lock” and “locked,” to the exclusion of the word
“savings,” is relevant.
With respect to the meaning and commercial impression
engendered by the marks, applicant makes the following
argument:
Thus, considering “SAVINGS LOCK,” it is
clear that an absolute lock is put on
pricing and savings, especially for
Retail Grocery [sic] services as
intended. The noun of the phrase is
LOCK. In the prior cited registration,
the mark demonstrated a LOCKED-IN
SAVINGS and SAVINGS is the mark’s noun.
The marks mean different events or
things.6

As discussed above, while the marks may not mean
exactly the same thing, we find that the differences
between the marks are not sufficient to distinguish them.
In this regard, we are not persuaded by applicant’s attempt
to articulate how and why those differences distinguish the
marks.
Thus, although the marks have certain differences,
when we compare them in their entireties we find that on

6 Applicant’s Brief, unnumbered page 4.
Serial No. 85329119
10
the whole they are similar in appearance, sound,
connotation and commercial impression, and that the
reversal of the elements in the marks is not sufficient to
distinguish them when used on legally identical services.
C. Balancing the factors.
In view of the facts that the marks are similar, the
services are legally identical and there is a presumption
that the services move in the same channels of trade and
are sold to the same classes of consumers, we find that
applicant’s mark SAVINGS LOCK for “retail grocery services”
is likely to cause confusion with the mark LOCKED-IN
SAVINGS for “retail grocery store services.”
To the extent that any doubts may remain, that doubt
is required to be resolved in favor of the registrant. In
re Hyper Shoppes (Ohio), Inc., 837 F.2d 840, 6 USPQ2d 1025
(Fed. Cir. 1988); and In re Martin's Famous Pastry Shoppe,
Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984).
Decision: The refusal to register is affirmed.