Cathie MarksDownload PDFTrademark Trial and Appeal BoardJul 2, 2015No. 86343562 (T.T.A.B. Jul. 2, 2015) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: July 2, 2015 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Marks _____ Serial No. 86343562 _____ Gene Bolmarcich, Esq., for Cathie Marks. Maureen D. Lott, Trademark Examining Attorney, Law Office 105, Susan Hayash, Managing Attorney. _____ Before Quinn, Wellington and Wolfson, Administrative Trademark Judges. Opinion by Quinn, Administrative Trademark Judge: Cathie Marks (“Applicant”) seeks registration on the Principal Register of the mark CEE SALT (in standard characters) for “seasoned salt that is not sea salt” in International Class 30.1 The Trademark Examining Attorney refused registration on two grounds: 1) that Applicant’s mark, when applied to Applicant’s goods, so resembles the previously registered mark shown below 1 Application Serial No. 86343562, filed July 21, 2014 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intention to use the mark in commerce. Application Serial No. 86343562 2 for, inter alia, “sea salts” in International Class 30,2 as to be likely to cause confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d); and 2) that Applicant’s mark, when applied to Applicant’s goods, is deceptively misdescriptive under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1). When the refusals were made final, Applicant filed a request for reconsideration. Upon denial of the request, Applicant appealed. Applicant and the Examining Attorney filed briefs. We affirm the refusals. DECEPTIVE MISDESCRIPTIVENESS Applicant “readily admits that if its mark was, hypothetically, SEA SALT, there would be no question as to whether it is deceptively misdescriptive of salt that is not sea salt.” (5 TTABVUE 3).3 Applicant goes on to assert that “CEE” is not the legal equivalent of “SEA” merely because it has a similar pronunciation, and that no reasonable consumer would understand “CEE” to mean “SEA”; and that, in any event, because Applicant’s goods are seasoned salt, not sea salt, consumers will understand “CEE” in its mark to refer to “seasoned.” 2 Registration No. 3097120, issued May 30, 2006; Sections 8 and 15 affidavit accepted and acknowledged. 3 In this opinion, citations to the briefs are to the TTABVUE docket entry number and the electronic page number where the statement appears. Application Serial No. 86343562 3 Section 2(e)(1) of the Trademark Act prohibits the registration of a mark which, when used on or in connection with the goods of the applicant, is deceptively misdescriptive of them. In determining whether a mark is deceptively misdescriptive, we consider two questions: 1) Is the term misdescriptive of the character, quality, function, composition or use of the goods? and 2) If so, are prospective purchasers likely to believe that the misdescription actually describes the goods? In re Budge Manufacturing Co., Inc., 857 F.2d 773, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988). For a term to misdescribe goods, the term must be merely descriptive of a significant aspect of the goods, one which the goods could plausibly possess but in fact do not. In re White Jasmine LLC, 106 USPQ2d 1385, 1392 (TTAB 2013). See also, Anheuser-Busch Inc. v. Holt, 92 USPQ2d 1101, 1108 (TTAB 2009) (“In order for a mark to be found deceptively misdescriptive ... it must immediately convey an idea about the goods or services, but that idea, though plausible, must be false.”). We therefore consider whether CEE SALT describes a significant feature of seasoned salt. The term “sea salt” is defined as “salt produced by the evaporation of seawater.” () (Office action dated Jan. 26, 2015). The record includes a website stating that sea salt is an “excellent all-purpose salt that’s typically less harsh than rock salt.” (). Id. Sea salt is a well-recognized type of salt. (See, e.g., ; ; ). Id. The following articles highlight the growing popularity and visibility of sea salt among American consumers: Application Serial No. 86343562 4 Why Sea Salt The popularity of sea salt has opened up great opportunities for the food processing industry. In addition, the steady increase in consumer interest means this trend is here to stay. Today, 95% of households surveyed are aware of sea salt and more than half have sea salt in their kitchens. Consumers believe sea salt is more natural, contains less sodium and delivers more taste than table salt. Many consumers will pay a premium price for foods containing sea salt, because these products are perceived to be healthier and have an “artisan” appeal. () Make the most out of the hottest trend right now – sea salt Move over Morton, iodized table salt is losing its popularity as more chefs and food products are using sea salt instead. In fact, in 2010 alone, sea salt has been introduced to nearly 1,350 food products. So what’s so special about sea salt, anyways? Actually, sea salt has many differences in comparison to its table salt counterpart. Harvested from evaporated seawater, sea salt has a coarser and crunchier texture and also is bigger in surface area. Many favor sea salt because they say it is more flavorful. Moreover, because of sea salt’s stronger flavor profile, you may find yourself using less of it than regular table salt, which can result in a lower- sodium diet. () Id. We find, based on the record, that the proposed mark CEE SALT immediately conveys information about a characteristic of the goods, namely that the goods are a particular type of seasoned salt, namely seasoned sea salt. A slight misspelling of a word (in this case, “CEE” versus “SEA”) will not turn a descriptive or generic word into a non-descriptive mark. See In re ING Direct Bancorp, 100 USPQ2d 1681, 1690 Application Serial No. 86343562 5 (TTAB 2011) (holding PERSON2PERSON PAYMENT generic for direct electronic funds transfers including electronic payment services between individuals); In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009) (holding URBANHOUZING, in standard character form, would be perceived by consumers as the equivalent of the descriptive term URBAN HOUSING, rather than as including the separate word ZING). No imagination is required by a prospective purchaser or user to discern that a characteristic of seasoned salt sold under the designation CEE SALT is that the goods are sea salt. The terminology CEE SALT immediately describes, without conjecture or speculation, a significant feature of the goods. Purchasers will clearly understand that the goods are seasoned sea salt. Applicant “does not deny that sea salt is a well-known type of salt.” (5 TTABVUE 3). But, Applicant argues, the record is devoid of evidence showing that sea salt is more well-known than seasoned salt or that “sea salt is ever also seasoned salt (or in other words that there exists a product that can be called ‘seasoned sea salt’).” Id. Further, as indicated above, Applicant contends that consumers will perceive its mark as suggestive of “seasoned” salt, not “sea” salt. The record is devoid of any evidence to establish that consumers are more likely to perceive Applicant’s mark as suggestive of “seasoned” salt rather than “sea” salt. The “CEE” portion of Applicant’s mark does not look like “SEASONED,” nor are the terms phonetic equivalents. As shown above, sea salt is very popular in this country. Contrary to Applicant’s argument, consumers are likely to view “CEE” as an alternative spelling for or a play on “SEA,” especially when viewed in the context Application Serial No. 86343562 6 of salt. Moreover, Applicant’s arguments are belied by other evidence in the record. The record includes Applicant’s Facebook® page, which shows the following exchange between a customer and Applicant: (C) I’m assuming its SEA SALT with a cutsie name? If so I’ve been using Sea Salt for YEARS…of COURSE it’s Salt…made from SALT WATER at “what ever” source! What else could it be?? (A) You know that old saying about assuming…Cee Salt is a handcrafted seasoned salt…not just “SEA SALT” Cee Salt contains Kosher salt… (Office action dated December 4, 2014). The record also shows that third parties in fact sell seasoned sea salt: Organic Celery Seasoned Celtic Sea Salt Blend, Organic Rosemary Seasoned Celtic Sea Salt Blend (); Applewood Smoked Sea Salt, Hickory Smoked Sea Salt, Thai Ginger Sea Salt (); 4/S Special Seasoned Sea Salt (). (Office action dated December 4, 2014). Because CEE SALT plausibly describes a significant characteristic (indeed a type of salt) that Applicant’s seasoned salt does not possess, the mark misdescribes the goods, and the mark is deceptively misdescriptive under Section 2(e)(1). If a customer purchases seasoned salt under the mark CEE SALT, he or she will believe that the goods are sea salt that has been seasoned with additional ingredients. Because Applicant’s goods are not sea salt, the proposed mark misrepresents a characteristic of the goods. The refusal under Section 2(e)(1) on the ground of deceptive misdescriptiveness is affirmed. Application Serial No. 86343562 7 LIKELIHOOD OF CONFUSION Our determination under Section 2(d) is based on an analysis of all of the facts in evidence that are relevant to the factors bearing on the likelihood of confusion issue. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). 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). As to the second du Pont factor regarding the similarity between the goods, there can be no dispute that Applicant’s “seasoned salt that is not sea salt” and Registrant’s “sea salts” are both types of salt, and thus would be considered closely related goods. Because the goods identified in the cited registration have no limitations or restrictions, it is presumed that as recited the goods encompass all goods of the types identified. See Paula Payne Products Co. v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76 (CCPA 1973); Kalart Co. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958); In re Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992). Thus, we must presume that Registrant’s goods encompass all types of sea salts, including seasoned sea salts. Further, the evidence shows, as referenced above, that sea salt in fact may be made and sold as seasoned sea salt. As shown by the record, different types of salts, including sea salt and seasoned salt (whether table, sea or kosher salt) are sold under the same mark through the same online retailers. (see, e.g., ). Further, the goods are offered to Application Serial No. 86343562 8 the same classes of purchasers, including ordinary consumers who would not exercise a high degree of care when purchasing these goods. Products of the type involved herein may be relatively inexpensive and subject to impulse purchase and frequent replacement. See Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293, 184 USPQ 35, 37 (CCPA 1974) (garlic powder and minced onion are spices “in direct competition with one another, are of low cost and presumably purchased without great reflection, and, finally, are purchased by the same class of purchasers”). “When products are relatively low-priced and subject to impulse buying, the risk of likelihood of confusion is increased because purchasers of such products are held to a lesser standard of purchasing care.” Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000). The close relationship between the goods, the identity in trade channels and purchasers, and the conditions of sale are du Pont factors that weigh heavily in favor of a finding of likelihood of confusion. With respect to the first du Pont factor, we must compare the marks in their entireties as to appearance, sound, connotation and commercial impression to determine the similarity or dissimilarity between them. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005), quoting In re E. I. du Pont de Nemours & Co., 177 USPQ at 567. “The proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a Application Serial No. 86343562 9 connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation omitted). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). Although marks must be considered in their entireties, it is settled that one feature of a mark may be more significant than another, and it is not improper to give more weight to this dominant feature in determining the commercial impression created by the mark. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“There is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable.”). With respect to Applicant’s mark CEE SALT, the generic term “SALT” plays no source-indicating function in the mark. See, e.g., In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (“DELTA,” not the disclaimed generic term “CAFE,” is the dominant portion of the mark THE DELTA CAFE). Further, purchasers in general are inclined to focus on the first word or portion in a trademark; in Applicant’s mark, “CEE” is the first portion. Presto Products, Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is likely to be impressed upon the mind of a purchaser and Application Serial No. 86343562 10 remembered”). See Palm Bay Imports, Inc., 73 USPQ2d at 1692. In view of the above, the dominant portion of Applicant’s mark is “CEE.” The marks are similar in sound; the “CEE” portion of Applicant’s mark sounds the same as the entire mark of Registrant, the stylized letter “C.” Similarity in any one of the elements of sound, appearance or meaning is sufficient to support a determination of likelihood of confusion. See Krim-Ko Corp. v. The Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”); In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988) (“In appropriate cases, a finding of similarity as to any one factor (sight, sound or meaning) alone ‘may be sufficient to support a holding that the marks are confusingly similar.’”) (citations omitted)). This is especially true in this case, where the goods may be ordered, referred to or recommended by word of mouth. Further, both marks convey the same meaning, namely that the goods are sea salt, with or without added seasonings.4 4 The Federal Circuit and the Board have recognized that weak designations may be entitled to a narrower scope of protection than an entirely arbitrary or coined word. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005); Giersch v. Scripps Networks, Inc., 90 USPQ2d 1020, 1026 (TTAB 2009); In re Box Solutions Corp., 79 USPQ2d 1953, 1957-58 (TTAB 2006); In re Cent. Soya Co., 220 USPQ 914, 916 (TTAB 1984). However, even a weak mark is entitled to protection against the registration of a similar mark for closely related goods. See King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1401 182 USPQ 108, 109 (CCPA 1974). Although the letter “C” may be weak when used in connection with sea salt, even shared weak terms can create a likelihood of confusion if their use creates a similar overall commercial impression between the marks in their entireties. Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 223 USPQ 1281, 1283 (Fed. Cir. 1984) (quoting Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293, 184 USPQ 35, 37 (CCPA 1974). In that case, the Federal Circuit stated, in finding a likelihood of confusion between the Application Serial No. 86343562 11 We recognize that the marks do not look alike. However, although the marks have different appearances, this does not mandate a finding that there can be no likelihood of confusion, given the similarities in sound and meaning between Applicant's CEE SALT mark and Registrant’s stylized C mark. Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d 1511 (2009); In re 1st USA Realty Professionals Inc., 84 USPQ2d 1581 (TTAB 2007). That is to say, the similarities in sound and meaning outweigh the differences in appearance. Given that the marks are more similar than dissimilar, they engender similar overall commercial impressions. Further, a mark in standard characters may be displayed in any lettering style; the rights reside in the wording or other literal element and not in any particular display or rendition. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); Trademark Rule 2.52(a); TMEP § 1207.01(c)(iii) (2015). Thus, it must be presumed that Applicant’s mark may be displayed in the same font and style as Registrant’s mark. In re Viterra, 101 USPQ2d at 1910 (a standard character mark may be used in all depictions regardless of the font style, size, or color, and not merely “reasonable manners” of depicting such mark). We conclude that purchasers familiar with Registrant’s “sea salts” sold under the stylized C mark would be likely to mistakenly believe, upon encountering marks SPICE VALLEY and SPICE ISLANDS for tea, that “[o]f paramount interest is not the descriptive nature of SPICE, but the overall commercial impression derived by viewing the marks in their entireties.” Id. Application Serial No. 86343562 12 Applicant’s mark CEE SALT for “seasoned salt that is not sea salt,” that the goods originate from or are associated with or sponsored by the same entity. DECISION The refusal under Section 2(e)(1) is affirmed. The refusal under Section 2(d) is affirmed. Copy with citationCopy as parenthetical citation