Biowish Technologies International Inc.

Trademark Trial and Appeal Board

Mar 7, 2018

No. 86739178 (T.T.A.B. Mar. 7, 2018)

This Opinion is Not a
Precedent of the TTAB
Mailed: March 7, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Biowish Technologies International Inc.
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Serial No. 86739178
_____
April L. Besl and Michael J. Wheeler of Dinsmore & Shohl LLP
For Biowish Technologies International Inc.

Colleen Dombrow, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____
Before Cataldo, Adlin and Hightower,
Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
Biowish Technologies International Inc. (“Applicant”) seeks a Principal Register
registration of BIOWISH GARD’N FRESH, in standard characters, for “fruit and
vegetable wash.”1 The Examining Attorney refused registration under Section 2(d) of
the Act on the ground that Applicant’s mark so resembles the registered mark
GARDEN FRESH, in standard characters, for “cleaning preparations for household
purposes”2 that use of Applicant’s mark in connection with Applicant’s goods is likely

1 Application Serial No. 86739178, filed August 27, 2015 without a filing basis and later
amended to allege first use dates of November 28, 2016 under Section 1(a) of the Trademark
Act.
2 Registration No. 3999656, issued July 19, 2011 on the Principal Register; Sections 8 and 15
affidavit accepted and acknowledged.
Serial No. 86739178
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to cause confusion. After the refusal became final, Applicant appealed and filed a
request for reconsideration which was denied. Applicant and the Examining Attorney
filed briefs.
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on the likelihood of confusion. In re E.I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth
factors to be considered); see also In re Majestic Distilling Co., 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 goods. 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.”).
Turning first to the goods, the Examining Attorney contends that “registrant’s
goods are written broadly enough to encompass the applicant’s goods.” 9 TTABVUE
7. We disagree. Registrant’s goods are “cleaning preparations for household
purposes,” in other words products used to clean floors, furniture, countertops, etc.
By contrast, Applicant offers “fruit and vegetable wash,” in other words products used
to wash (and thereby clean) fruits and vegetables. While Applicant’s and Registrant’s
goods may perhaps fall within the exceedingly broad and varied category of “cleaning
products,” that does not necessarily mean that Registrant’s goods “encompass”
Applicant’s. To the contrary, it is clear that they do not because Registrant’s cleaning
Serial No. 86739178
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products are expressly limited to “household purposes,” meaning they are for cleaning
a home. That is a separate activity from washing produce, which is not a home
cleaning task, but rather a cooking or perhaps agricultural task which incidentally
involves “cleaning.” Registrant’s goods do not encompass Applicant’s and the goods
are not legally identical.
Moreover, to the extent Applicant and Registrant both offer “cleaning” products,
that is also not enough by itself to establish that the goods are related. Indeed, “a
finding that the goods are similar is not based on whether a general term or
overarching relationship can be found to encompass them both.” Edwards
Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1410 (TTAB 2010) (citing
Harvey Hubbell Inc. v. Tokyo Seimitsu Co., Ltd., 188 USPQ 517, 520 (TTAB 1975));
In re W.W. Henry Co., 82 USPQ2d 1213, 1215 (TTAB 2007) (“to demonstrate that
goods are related, it is not sufficient that a particular term may be found which may
broadly describe the goods”); see also, Bose Corp. v. QSC Audio Products Inc., 293
F.3d 1367, 63 USPQ2d 1303, 1310 (Fed. Cir. 2002) (stating, in dicta, that “a broad
general market category is not a generally reliable test of relatedness of products”).
For example, our primary reviewing court reversed our finding that gloves are
related to barbeque mitts:
The mere fact that “mitt” is defined as a type of glove has
no relevance to whether a consumer would believe that the
two products emanate from the same source … First,
Shen’s product is not a mitt, it is a barbeque mitt. It is
designed to protect the hand from heat while cooking.
While it covers the hand like a glove, it is better understood
as a tool than as an article of clothing. The unrelatedness
of RHL’s and Shen’s products is highlighted by comparing
Serial No. 86739178
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a similar set of goods: hard hats used by construction
workers and fedoras. While both are hats that are used to
cover the head, they have different purposes. The first is
used for protection, just as a barbeque mitt is, while the
second functions to keep the head warm in addition to
adding an air of style, just as ready made or tailored gloves
do. The mere fact that both barbeque mitts and gloves are
worn on the hands simply does not support a finding that
consumers would associate these products with a common
source.

Shen Mfg. Co. v. Ritz Hotel Ltd., 73 USPQ2d 1350, 1357 (Fed. Cir. 2004); see also In
re Mars, Inc., 741 F.2d 395, 222 USPQ 938 (Fed. Cir. 1984) (reversing refusal to
register CANYON for candy bars based on registration of CANYON for fresh citrus
fruits, namely, oranges, lemons and grapefruit); Curtice-Burns, Inc. v. Northwest
Sanitation Products, Inc., 185 USPQ 61, 62-63 (TTAB 1975), aff’d, 530 F.2d 1396
(CCPA 1976) (“while respondent’s toilet bowl cleaner is sold through the same trade
channels as the canned vegetables, fruits and soft drinks of petitioner, the two
products are non-competitive, differ significantly in utility, and have nothing in
common with respect to their essential characteristics, uses or sales appeal”). This
case is analogous, in that while Applicant and Registrant both offer different types of
“cleaning” products, they perform different functions, with Applicant’s goods being
better understood as a cooking/food/agriculture-related product than as a household
cleaning product. While both products “clean,” they have different purposes,
Applicant’s to wash food for display or, we assume, consumption, and Registrant’s to
clean inside homes. The mere fact that both fruit and vegetable wash and household
cleaners can be used to “clean” does not support a finding that consumers would
associate them with a common source. Edwards Lifesciences, 94 USPQ2d at 1410
Serial No. 86739178
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(finding that computer system which monitors adverse drug events and heart
monitors have only “superficial similarities” and would not be confused); In re W.W.
Henry, 82 USPQ2d at 1214 (finding no relationship between cement patches for
repairing wall and floor surfaces and chemical filler for cosmetic repair of polyolefin
surfaces).
Some of the differences between Applicant’s and Registrant’s products become
apparent when examining the specimens submitted in support of registration.
Applicant’s specimen is on the left and Registrant’s on the right:

Serial No. 86739178
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Office Action response of June 14, 2016. In Applicant’s specimen, under the BIOWISH
GARD’N FRESH mark, the product’s purpose is described as “Organic Fruit &
Vegetable Shelf Life Extension,” and the product’s label includes a picture of tomatoes
and bananas as they typically appear in store displays. Thus, Applicant’s product is
intended to wash or “clean” fruits and vegetables.3 The term GARD’N FRESH
apparently references the product’s ability to keep fruits and vegetables as fresh as
they were in the garden (or wherever they were grown). By contrast, Registrant’s
specimen makes clear that its product is for cleaning, and Registrant’s identification
of goods reveals more specifically that it is for cleaning homes or “households,” with
the term GARDEN FRESH apparently referencing the product’s “powerful scent of
clean.”
The Examining Attorney’s finding of a relationship between the products is
primarily based on several third party uses of a single mark for general purpose
cleaning solution on the one hand and fruit and vegetable wash on the other. For
example, the mark FIT ORGANIC & Design is used for both “fruit & vegetable wash”
and “cleaner and degreaser”:

3 We recognize that the wording “shelf life extension” may refer to another purpose of
Applicant’s product – preserving fruits and vegetables, likely for retail display as well as
consumption. This interpretation is strongly supported by Applicant’s marketing materials
submitted during prosecution. However, in likelihood of confusion cases we focus on the
identification of goods (“fruit and vegetable wash”), which in this case connotes cleaning
rather than preservation or “shelf life extension.” Of course, to the extent Applicant’s goods
are in fact used for preservation or “shelf life extension,” that would further distinguish them
from Registrant’s goods.
Serial No. 86739178
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Serial No. 86739178
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Office Action of February 6, 2017 (printouts from “fitorganic.com”). The Examining
Attorney submitted similar examples from Friendly Organic, The Honest Co., KD
Gold, Rebel Green, Swanson Health Products, Vermont Soap, Better Life and
Biokleen. Id. (printouts from “friendlyorganic.com,” “honest.com,” “kdgoldrtu.com,”
“rebelgreen.com,” “swansonvitamins.com,” “vermontsoap.com,” “cleanhappens.com”
and “biokleenhome.com”).4 This is the type of evidence which often supports a finding
that goods are related.
However, in this case, there is less to the Examining Attorney’s evidence than
meets the eye. Specifically, the fruit and vegetable wash products are promoted as
healthy to ingest, whereas the household cleaning products are promoted as suitable
for cleaning various surfaces in the home:
Fit Organic Fruit & Vegetable Wash is promoted as a
“Certified USDA Food product,” and “Certified Kosher
(Orthodox Union)” while Fit Organic Cleaner & Degreaser
is promoted as having “Over 1,001 uses: Ovens, Grills,
Counter Tops, Sinks, Tile and many more.”

Friendly Organic Fruit & Vegetable Wash is promoted as
“safe as it is made from the very highest quality all natural
plant-derived cleaners” which “leav[e] no taste or smell on
produce” while the Friendly Organic Furniture Cleaner &
Polish is promoted as “powerful.”

The initial description of Honest Co. fruit + veggie wash
concludes with “Bon appetit!,” and the more specific
description states “No taste or odor left behind” and
“Inhibits browning and helps food last up to 200% longer,”
while the Honest Co. multi-surface cleaner “tackles dirt,
grease, and grime anywhere, anytime!,” and is “Great for

4 We have not considered the evidence regarding enviroCare Earth, which appears to be an
Australian company, as there is no indication that it markets or sells its products in the
United States.
Serial No. 86739178
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cleaning: kitchen countertops, high chairs, toys, walls,
hardwood floors, painted surfaces, furniture, inside ovens,
laminate, granite bathroom fixtures, wood, sealed stone,
electronics, grills, decks, and more!”

KD Gold Fruit & Vegetable Wash is promoted as “Kosher
and Halal Certified,” with “no taste or odor left behind,”
while the KD Gold All Purpose Cleaner is promoted as
having “the power to fight the toughest grease and grime.”

Rebel Green Fruit & Veggie Clean is promoted as leaving
“no residual taste” and “Kosher Certified,” while Rebel
Green All Purpose Spray “works hard on any surface” and
is “great for countertops, appliances, and tile.”

Swanson Healthy Home Fruit & Vegetable Wash is
promoted as having “no odor or aftertaste,” while Swanson
Healthy Home All-Purpose Cleaner “cleans, degreases and
deodorizes all water safe surfaces.”

Vermont Soap claims that Product Magic Fruit & Veggie
Wash “makes food taste better!,” and that Liquid Sunshine
Nontoxic Spray & Wipe Surface Cleaner is used “to clean
counters, floors, woodwork, tile or other household
surfaces.”

Id.
Moreover, the fruit and vegetable wash products are typically offered on different
sections of the websites than the household cleaning products, or the websites offer a
wide variety of products, well beyond those that merely “clean”:
Fit Organic Fruit & Vegetable Wash is sold under the
heading/section “Produce Wash,” while Fit Organic home
cleaning product is sold under the heading/section
“Household Cleaners.” Other headings/sections include
“fabric care,” “dish” and “mosquito repellent.”

The Honest Co. website’s product categories include
“diapering,” “feeding,” “personal care,” “cleaning,”
“vitamins and more” and “gear and more.”

Serial No. 86739178
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The KD Gold website’s product categories include
“bathroom cleaner,” “garden wash & plant nutrition,”
“head lice remover” and “pet shampoo & urine remover.”

Rebel Green Fruit and Veggie Clean is sold under the
heading “fruit & veggie clean” while Rebel Green All
Purpose Spray is sold under the heading “household
cleaners” and the subheading “all purpose cleaner.”

Swanson Healthy Home Fruit & Vegetable Wash is sold
under the heading “produce wash” while Swanson Healthy
Home All-Purpose Cleaner is sold under the heading
“cleaning products.”

The Vermont Soap website’s product categories include
“aromatherapy,” “body foam,” “camping & gardening,”
“gifts,” “natural oral care,” “pet & horse,” “shea butter,”
“travel” and “yoga products.”

Biokleen household cleaners are sold under the website’s
“household” heading and “household cleaners” subheading,
while Biokleen Produce Wash is sold under the website’s
“kitchen” heading and “produce wash” subheading.

Id.; Request for Reconsideration (printout from “fitorganic.com”). Based on this
evidence, we agree with Applicant that “[a] consumer would not use a product used
to clean their floors or furniture to also clean food they will consume.” 7 TTABVUE
20. On this record, we do not find these goods related.
As for channels of trade, the mere fact that Applicant’s and Registrant’s goods are
offered on some of the same specialized third party websites is not enough by itself to
establish that the channels of trade overlap, any more than supermarkets constitute
the same channel of trade for all goods they sell.
Appellant urges, we think correctly, that the only link
opposer has established between these goods is that they
might be expected to be found in the same area of a
Serial No. 86739178
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supermarket. We hold that this evidence is not sufficient to
sustain the opposition in classes 2, 14 and 29.
A wide variety of products, not only from different
manufacturers within an industry but also from diverse
industries, have been brought together in the modern
supermarket for the convenience of the customer. The mere
existence of such an environment should not foreclose
further inquiry into the likelihood of confusion arising from
the use of similar marks on any goods so displayed.

Federated Foods, 192 USPQ at 29 (citation omitted); see also Hi-Country Foods Corp.
v. Hi Country Beef Jerky, 4 USPQ2d 1169 (TTAB 1987) (“There is no question but
that applicant’s beef snacks and opposer’s fruit juices could very well be found in
grocery stores, convenience stores, supermarkets and the like … it has often been
stated that there can be no ‘per se’ rule that all food products are related goods by
nature or by virtue of the capability of being sold in the same food markets (i.e. the
modern supermarket environment with its enormous variety of food, cleaning, paper
and other products.”); Nestle Co. v. Nash-Finch Co., 4 USPQ2d 1085, 1090 (TTAB
1987) (“the same availability of different food products in the same stores carrying a
wide variety of food items in (sic) insufficient, in and of itself, to warrant a finding of
likelihood of confusion”).
Moreover, in this case, the evidence that certain websites offer both types of goods
is if anything less persuasive than evidence that two types of goods are offered in the
same supermarkets or grocery stores. Here, all of the websites which offer both
produce wash and household cleaning products are focused not on any specific type
of product, but instead on offering organic or environmentally friendly products.
Specifically, as the names imply, the FIT ORGANIC and FRIENDLY ORGANIC
Serial No. 86739178
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marks are used for organic products; Honest Co. promotes its goods as meeting
certain standards, such as being “cruelty free” and “green;” KD Gold promotes its
goods as “green,” “designed for the environment,” and not containing genetically
modified organisms; Rebel Green promotes its goods as “all natural” and “plant
based;” Swanson Health Products claims its goods are “eco-friendly,” “biodegradable,”
“non-toxic,” and “phosphate, formaldehyde and petrochemical free;” Vermont Soap
promotes its products as “organic” and “non-toxic;” Better Life claims its products are
“non-toxic,” “biodegradable” and “never tested on animals;” and Biokleen touts its
products as environmentally friendly. In other words, the record reveals that to the
extent the goods are offered on the same websites, it is not because of the type of
product (i.e. that both products can be used to “clean”), but because the products share
extraneous characteristics, so much so that the websites feature not only “cleaning”
products but also completely unrelated goods such as insect repellant, diapers,
vitamins and pet, yoga and camping products. Accordingly, while the channels of
trade could be argued to technically “overlap” to the extent that a certain type of
website offers both types of goods in distinct categories, under the circumstances of
this case, this evidence is not sufficient to support a finding of likelihood of confusion.
Turning next to the similarity of the marks and the strength of the cited mark, we
compare Applicant’s and Registrant’s marks “in their entireties as to appearance,
sound, connotation and commercial impression.” Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). Obviously, the marks in this
Serial No. 86739178
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case are partially similar because they both contain variations of the phrase “garden
fresh.”
The marks are different, however, in that Applicant’s mark begins with the
distinctive term BIOWISH, which is absent from Registrant’s mark. Oftentimes the
addition of a house mark such as BIOWISH at the beginning of a registered mark (or,
as in this case, a variation of a registered mark) is found to be an “aggravation rather
than a justification,” and insufficient to avoid confusion. See, e.g., In re Sien
Equipment Co., 189 USPQ 586, 588 (TTAB 1975) (citation omitted). See also In re
Toshiba Medical Systems Corp., 91 USPQ2d 1266, 1271 (TTAB 2009); In re Fiesta
Palms LLC, 85 USPQ2d 1360, 1367 (TTAB 2007); In re Riddle 225 USPQ 630 (TTAB
1985). Other times, however, such as where the registered term is weak, the addition
of a house mark may be sufficient to avoid a likelihood of confusion. See, e.g., Knight
Textile Corp. v. Jones Investment Co., 75 USPQ2d 1313 (TTAB 2005).
Here, the term BIOWISH is the dominant portion of Applicant’s mark, both
because it is significantly more distinctive than GARD’N FRESH and because it
appears first. Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB
1988) (“it is often the first part of a mark which is most likely to be impressed upon
the mind of a purchaser and remembered”). See also, Palm Bay Imps., Inc., 73
USPQ2d at 1692; Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
In fact, the remaining portion of Applicant’s mark, which is similar to Registrant’s
mark, is quite weak. Indeed, it is laudatory, describing the produce wash’s ability to
Serial No. 86739178
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keep produce fresh or to make it appear fresh, such as it was in the garden where it
was grown. See generally In re Boston Beer Co., L.P., 198 F.2d 1370, 53 USPQ2d 1056,
1058 (Fed. Cir. 1999)) (finding THE BEST BEER IN AMERICA for beer to be “a
common, laudatory advertising phrase which is merely descriptive of Boston Beer’s
goods. Indeed, it is so highly laudatory and descriptive of the qualities of its product
that the slogan does not and could not function as a trademark to distinguish Boston
Beer’s goods and serve as an indication of origin.”). Similarly, the term GARDEN
FRESH is laudatory of Registrant’s goods, suggesting Registrant’s household
cleaner’s “fresh” smell (or, as Registrant otherwise refers to it, the “powerful scent of
clean”). See Faultless Starch Co. v. Sales Producers Associates, Inc., 530 F.2d 1400,
189 USPQ 141, 142 (CCPA 1976) (finding FAULTLESS laudatory and weak); David
Crystal, Inc. v. Soo Valley Co., 471 F.2d 1245, 176 USPQ 326, (CCPA 1973) (finding
no likelihood of confusion between WONDERTHREAD for industrial thread and
WONDERCORD for clothing, in part because the marks are both “laudatory in
nature”); Nestle Co., 4 USPQ2d at 1090 (finding no likelihood of confusion between
DELI QUIK for salads, sandwiches and the like and QUIK or NESTLE QUIK for
cocoa and fruit flavored preparations for making milk drinks, in part because DELI
QUIK suggests “products designed for fast or quick preparation and consumption”).
In this case, we find that because Registrant’s mark consists only of the laudatory
term GARDEN FRESH, which is so similar to GARD’N FRESH in sight and sound,
the marks are more similar than dissimilar in their entireties, notwithstanding that
BIOWISH is the dominant portion of Applicant’s mark. However, the similarity is
Serial No. 86739178
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minimal given Applicant’s significant addition of its distinctive house mark
BIOWISH and the conceptual weakness of the term GARDEN FRESH and variations
thereof. Cf. New England Fish Co. v. Hervin Co., 511 F.2d 562, 184 USPQ 817 (CCPA
1975) (finding no likelihood of confusion between KITTY and BLUE MOUNTAIN
kitty O’s (stylized), both for cat food, based on BLUE MOUNTAIN house mark and
descriptiveness of “kitty”); Knight Textile, 75 USPQ2d at 1315-16 (finding no
likelihood of confusion between ESSENTIALS and NORTON MCNAUGHTON
ESSENTIALS for identical goods due to “highly suggestive” nature of ESSENTIALS,
and that “applicant’s addition of its house mark therefore suffices to distinguish the
two marks”).
In addition to being laudatory and, at best, highly suggestive of the goods for the
reasons stated, Applicant’s modification of the term to GARD’N FRESH makes it
conceptually weak for another reason. By displaying the term as GARD’N FRESH,
Applicant has apparently created a double entendre, with one meaning being “garden
fresh” and the other being “guard and fresh.” See In re W.W. Henry, 82 USPQ2d at
1214 (finding that PATCH & GO and PATCH ‘N GO “would appear to have the same
connotation”). That is, according to the printout from Applicant’s website reproduced
below on the left, Applicant’s produce wash is used for “food quality & pathogen
control.” And according to Applicant’s promotional material reproduced below on the
right, Applicant’s produce wash extends the shelf life of produce. Therefore, one
meaning of GARD’N FRESH could be that it “guards” the quality of the food,
including by “guarding” it from pathogens, thus keeping the food “fresh”:
Serial No. 86739178
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Office Action responses of June 14, 2016 and January 13, 2017.
Moreover, Applicant has introduced a number of third-party registrations which
establish that GARDEN FRESH is commonly registered for food products including
produce and related goods and services:
Mark Reg. No. Goods/Services
GARDEN FRESH (standard
characters)
3664075 “mesh produce bags for washing or
draining vegetables, fruits or salad”
GARDEN FRESH & Design 4556163 “cooking oil; edible oils; margarine;
shortening” and “mayonnaise; mustard;
vinegars; salad dressings”
GARDEN FRESH (typed) 2862656 “restaurant, carry out and catering
services”
GARDEN FRESH FARMS
Disclaimers of “GARDEN
FRESH” for Class 31
goods and
“GARDEN” and
“FARMS” for Class 11
goods
5084566 “agricultural equipment, namely indoor
plant growing systems …” (Class 11)
“fresh produce, in particular vegetables
and herbs” (Class 31)
Serial No. 86739178
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GARDEN FRESH
VEGETABLES & Design
Disclaimer of “GARDEN
FRESH VEGETABLES”
4188390 “fresh fruit and unprocessed
vegetables”
BLUE RIBBON GARDEN
FRESH (standard
characters)
Disclaimer of “GARDEN
FRESH”
3909300 “cut fresh beans; vegetables, namely,
packaged fresh beans, peppers, and
eggplant” and
“fresh vegetables; raw vegetables;
unprocessed vegetables; fresh beans;
fresh peppers; fresh eggplant”
FRESH GARDEN V-E-G-E-
T-A-B-L-E-S & Design
Disclaimer of “FRESH
GARDEN VEGETABLES”
4789136 “fresh fruit and vegetables”5

These third-party registrations “show the meaning of a mark in the same way that
dictionaries are used.” Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ
693, 694-95; Couch/Braunsdorf, 110 USPQ2d at 1471. Here, they establish that
GARDEN FRESH and variations thereof, such as Applicant’s GARD’N FRESH, has
a particular meaning when used in connection with produce, namely that the produce
is as fresh as when it was in the garden.
Thus, while Applicant’s and Registrant’s marks are similar in appearance and
sound because they share variations of the term GARDEN FRESH, they convey
different meanings. Applicant’s mark conveys that its product keeps produce fresh
(or “garden fresh”), while Registrant’s mark conveys that its household cleaners have
a “powerful scent of clean,” or otherwise leave household surfaces “garden fresh,” in
reference to a smell rather than a biological state. This is an important difference

5 While this registration issued under section 44(e) and there is no assertion of use in United
States commerce, it is relevant for the disclaimer of “FRESH GARDEN VEGETABLES.”
Serial No. 86739178
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between the marks which reduces the degree of similarity between them.
Accordingly, the marks are only slightly more similar than dissimilar in their
entireties.6
On balance, we find there is no likelihood of confusion. While the marks are
slightly similar overall, the goods have not been shown to be related. To the extent
that they can be referred to broadly as “cleaning” products, this is simply not enough.7
In fact, the record demonstrates that this superficial “relationship” will not result in
consumer confusion because in reality Applicant’s goods are for agricultural and food
preparation purposes, while Registrant’s are for household cleaning, and the websites
which offer a wide variety of environmentally friendly products and offer both types
of goods categorize and promote those goods differently. The question we are faced
with here is whether consumers “would consider the goods to emanate from the same

6 As Applicant points out, the cited registration already coexists on the Principal Register
with the third-party identical mark in Registration No. 3664075 (GARDEN FRESH in
standard characters) for “mesh produce bags for washing or draining vegetables, fruits or
salad.”
7 The mere fact that some consumers of Registrant’s household cleaning products might at
some point also purchase Applicant’s produce wash, or vice versa, is not a basis upon which
to find that the channels of trade or classes of consumers are the same. Coach Services. Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1723 (Fed. Cir. 2012); Sports
Authority Michigan Inc. v. PC Authority Inc., 63 USPQ2d 1782, 1794 (TTAB 2002) (“We think
it a fit subject for judicial notice that purchasers of computer hardware and software also
would be purchasers of, at least, footwear and apparel, and perhaps sporting goods and
equipment. There is nothing in the record, however, to suggest that merely because the same
consumer may purchase these items, such consumer would consider the goods as likely to
emanate from the same source or have the same sponsorship.”).
Serial No. 86739178
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source.” Coach Services, 101 USPQ2d at 1723; 7-Eleven, Inc. v. Wechsler, 83 USPQ2d
1715, 1724 (TTAB 2007). The evidence reveals they would not.

Decision: The Section 2(d) refusal to register Applicant’s mark is reversed.