C.H. Belt & Associates, Inc.

Trademark Trial and Appeal Board

Jan 25, 2018

No. 86843035 (T.T.A.B. Jan. 25, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: January 25, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re C.H. Belt & Associates, Inc.
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Serial No. 86843035

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Andrew S. Dallmann of Andrew S. Dallmann, P.C.,
for C.H. Belt & Associates, Inc.

John S. Miranda, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
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Before Zervas, Wellington and Gorowitz,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
C.H. Belt & Associates, Inc. (“Applicant”) seeks registration on the Principal
Register of the standard character mark C.H. BELT for “frozen fruits; frozen
vegetables; preserved fruits; preserved fruits and vegetables; preserved vegetables;
crystallised [sic], frosted, frozen, and preserved fruit” in International Class 29.1

1 Application Serial No. 86843035, filed on December 8, 2015, pursuant to Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), claiming first use and first use in commerce on
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The Examining Attorney refused registration of Applicant’s mark under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on Registration No. 5015694
(“the ‘694 registration”) for the standard character mark BELT (registered August 9,
2016) and Registration No. 5047819 (“the ‘819 registration”) for the mark
(BELT and design) registered September 27, 2016), both for “fresh
citrus fruit” in International Class 31.2 The two registrations issued to the same
owner.
After the Examining Attorney made the refusal final, Applicant appealed to this
Board and requested reconsideration. On remand, the Examining Attorney denied
the request for reconsideration. The appeal resumed and both Applicant and the
Examining Attorney filed briefs. We affirm the refusal to register.
I. Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act is based on an
analysis of the probative facts in evidence that are relevant to the factors bearing on
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 Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re

January 6, 2006. The name shown in the mark does not identify a particular living
individual.
2 The mark which is the subject of the registration is described as consisting of a design of a
round citrus fruit with a five-point star at the top and with a belt strap overlapping; the word
BELT appears in the belt strap. Color is not claimed as a feature of the mark.
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Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In
considering the evidence of record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and differences in the marks.”
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976); see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014).
A. The Marks
We compare the marks for similarities and dissimilarities in appearance, sound,
connotation and commercial impression. Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692. 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 that confusion as to the source of the goods offered under the respective
marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1721 (Fed. Cir. 2012). Under actual marketing conditions,
consumers do not necessarily have the luxury of making side-by-side comparisons
between marks, and must rely upon their imperfect recollections. Dassler KG v. Roller
Derby Skate Corp., 206 USPQ 255, 259 (TTAB 1980). The focus is on the recollection
of the average purchaser, who normally retains a general rather than a specific
impression of trademarks. In re Assoc. of the United States Army, 85 USPQ2d 1264
(TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
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Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. Vv. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). On the other hand, different features may be
analyzed to determine whether the marks are similar. Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013) (citing Price Candy Co.
v. Gold Medal Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955)). In fact,
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 a consideration of the marks in their entireties. In re Nat’l Data Corp., 224
USPQ at 751.
We focus our analysis on the ‘694 registration for the standard character mark,
because if we find confusion likely between that cited mark and Applicant’s mark, we
need not consider the likelihood of confusion between Applicant’s mark and the
combination word and design mark of the ‘819 registration, while if we find no
likelihood of confusion between Applicant’s mark and the mark in the ‘694
registration, we would not find confusion between Applicant’s mark and the mark in
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the ‘819 registration. In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB
2010).
Here, both marks are presented in standard character form, which encompasses
use of the respective marks in any typeface or stylization and Applicant has merely
added the initials “C.H.” to registrant’s mark. Likelihood of confusion has been found
where a term is added to a registered mark. In re Mighty Leaf Tea, 601 F.3d 1342, 94
USPQ2d 1257, 1260 (Fed. Cir. 2010) (finding ML in standard character form for use
with personal care and skin care products similar to ML MARK LEES (stylized)); In
re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (applicant’s mark
VANTAGE TITAN for medical magnetic resonance imaging diagnostic apparatus
confusingly similar to TITAN for medical ultrasound diagnostic apparatus); In re El
Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988) (applicant’s mark MACHO
COMBOS for food items confusingly similar to MACHO for restaurant entrees).
We find the identical word “BELT” to be the clearly dominant portion of both
marks. The term “C.F.” in “C.F. BELT” is not entirely devoid of source-identifying
capacity, but it is clearly subordinate to BELT in Applicant’s mark. In the context of
Applicant’s goods, the initials convey the impression that they are the initials of a
particular member of the Belt family. They are thus subordinate to the term BELT
both in connotation and visual appearance. Cf. In re I. Lewis Cigar Mfg. Co., 205 F.2d
204, 98 USPQ 265 (CCPA 1953) (use of initial did not significantly detract from
surname significance of S. SEIDENBERG & CO’S); In re Taverniti, SARL, 225 USPQ
1263 (TTAB 1985). In addition, “it is well known that it is more difficult to remember
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a series of arbitrarily arranged letters than it is to remember … words, or phrases.”
Crystal Corp. v. Manhattan Chemical Mfg. Co., Inc., 25 USPQ 5, 6 (CCPA, 1935).
As we have previously held, “[i]f the dominant portion of both marks is the same
… confusion may be likely notwithstanding peripheral differences.” In re Jump
Designs LLC, 80 USPQ2d 1370, 1375 (TTAB 2006) (internal quotations and citations
omitted). Here, because the dominant feature of both marks (“Belt”) is identical, the
commercial impressions of the marks as a whole are substantially similar,
notwithstanding the small differences between them.
Finally, while the entire marks have minor differences in pronunciation, it is
likely that consumers would often refer to both Applicant’s and registrant’s goods as
“Belt” goods. We note that in many instances, the public abbreviates long names and
may refer to Applicant’s products by the name Belt. “[C]ompanies are frequently
called by shortened names, such as Penney’s for J.C. Penney’s, Sears for Sears and
Roebuck (even before it officially changed its name to Sears alone), Ward’s for
Montgomery Ward’s, and Bloomies for Bloomingdale’s.” Marshall Field & Co. v. Mrs.
Fields Cookies, 25 UPSQ2d 1321, 1333 (TTAB 1992). But even if the entire mark is
pronounced, the additional matter in Applicant’s mark is clearly subordinate to the
identical term “BELT,” and thus BELT is the dominant feature of Applicant’s mark.
The du Pont factor regarding the similarity of the marks therefore favors a finding
of likelihood of confusion.
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B. The Goods, Trade Channels and Purchasers
We now turn to the relationship between the respective goods, trade channels and
purchasers. With regard to the relationship between the goods, we consider the goods
as they are identified in the application and the ‘819 registration. See Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161
(Fed. Cir. 2014) (goods as identified in involved application and cited registration
compared); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990). The goods of the parties need not be identical
or even competitive to find a likelihood of confusion. See On-line Careline Inc. v. Am.
Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v.
Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven if the goods
in question are different from, and thus not related to, one another in kind, the same
goods can be related in the mind of the consuming public as to the origin of the
goods.”). The goods need only be “related in some manner and/or if the circumstances
surrounding their marketing are such that they could give rise to the mistaken belief
that [the goods] emanate from the same source.” Coach Servs., Inc. v. Triumph
Learning LLC, 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d
1715, 1724 (TTAB 2007)).
The goods listed in the involved application include “frozen fruit” and “preserved
fruit,” and the cited registration identifies “fresh citrus fruit.” The Examining
Attorney submitted webpages demonstrating both frozen fruit and fresh citrus fruit
being offered by the same entities under the same mark:
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● foodservicedirect.com and dole.com, showing DOLE frozen and fresh
strawberries.3

● nwwildfoods.com offering fresh berries and what appear to be frozen
berries in photographs.4

● welchfrozenfoods.com offering “the vibrant flavors of frozen fruits” and
welchs.com offering “Fresh Grapes” both under the mark WELCH’S.5

In addition, Applicant’s recitation of goods includes “preserved fruit” and it is
common knowledge that preserves may be made from fresh fruit, including citrus
fruit, e.g., orange preserve.6
We therefore find that “frozen fruit” and “preserved fruit” on one hand, and “fresh
citrus fruit” on the other, are related goods.7 As for the remaining goods in Applicant’s
identification of goods, in view of our findings with respect to “frozen fruit” and
“preserved fruit,” we need not discuss such goods. See Tuxedo Monopoly, Inc. v.
General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (likelihood
of confusion must be found with respect to a class of goods or services in an application
if there is likely to be confusion with respect to any item that comes within the

3 November 14, 2016 Office Action, TSDR 5, 12 – 14.
4 Id., TTABVUE 22-23. Applicant does not dispute that the photographs depict frozen berries
or the Examining Attorney’s representation that nwwildfoods.com offers both fresh and
frozen berries.
5 July 5, 2017 Office Action, TSDR 31-32.
6 See definition of “preserve” from Random House Dictionary (Random House, Inc. 2018),
“[u]sually, preserves[,] fruit, vegetables, etc., prepared by cooking with sugar.” The Board
may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet
Food Imp. Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed.
Cir. 1983), including online dictionaries that exist in printed format or regular fixed editions.
In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
7 Even though the noted Internet evidence does not concern citrus fruit, because fresh and
frozen berries and grapes are sold under the same marks, consumers would expect the source
of fresh and frozen citrus fruit sold under similar marks to be the same.
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identification of the goods or services in that class); In re i.am.symbolic, llc, 116
USPQ2d 1406, 1409 (TTAB 2015) (“Likelihood of confusion must be found if there is
likely to be confusion with respect to any item in a class that comes within the
identification of goods in the application and cited registration.”).
Applicant argues,
[T]he parties’ respective products are distinct and offered … to
sophisticated businesses that are not encountering these products at a
grocery store but rather are purchasing them directly from each parties’
sales agents. The realities of the marketplace here compel the conclusion
that sophisticate[d] commercial purchasers would not believe that
frozen and preserved fruits and vegetables distributed by Applicant
would be associated with fresh fruit distributed by Registrant. Thus,
Applicant’s products cannot be considered “related” to the Cited Marks’
products for likelihood of consumer confusion purposes.8

Because the scope of the registration Applicant seeks is defined by its application
(and not by its actual use), it is the identification of goods recited in the application
(and not actual use) that we must look to in determining Applicant’s right to register:
The authority is legion that the question of registrability of an
applicant’s mark must be decided on the basis of the identification of
goods set forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which sales of the goods
are directed.

Octocom Syst., 16 USPQ2d at 1787. Thus, Applicant’s argument regarding the goods,
as well as the trade channels and purchasers, is not one which we can accept. Rather,
we find that purchasers of both Applicant’s and registrant’s goods include members
of the general public, and, because neither the application nor the cited registration

8 Applicant’s brief at 9, 8 TABVUE 10.
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includes any restrictions regarding channels of trade, we must presume that the
recited goods are sold in the ordinary or normal trade channels for such goods,
including in supermarkets and grocery stores. See also Packard Press, Inc. v. Hewlett-
Packard Co., 227 F.3d 1352, 56 USPQ2d 1351, 1354 (Fed. Cir. 2000) (“When the
registration does not contain limitations describing a particular channel of trade or
class of customer, the goods or services are assumed to travel in all normal channels
of trade.”).
We therefore find the goods to be related, and the purchasers and trade channels
to be the same.
C. Conclusion
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. The goods at issue
are related, and move through the same trade channels to the same classes of
customers. Applicant’s and registrant’s marks are similar and Applicant has not
established any weakness in registrant’s mark. We therefore find that Applicant’s
mark C.H. BELT for “frozen fruits; frozen vegetables; preserved fruits; preserved
fruits and vegetables; preserved vegetables; crystallised [sic], frosted, frozen, and
preserved fruit” is likely to cause confusion with the registrant’s mark BELT for
“fresh citrus fruit.”
Decision: The refusal to register under Section 2(d) is affirmed.