Compass Coffee, LLC

Trademark Trial and Appeal Board

Apr 1, 2019

EX (T.T.A.B. Apr. 1, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: April 1, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Compass Coffee, LLC
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Serial No. 87419816

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Rebecca Liebowitz of Venable LLP,
for Compass Coffee, LLC.

Jeanine Gagliardi, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
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Before Bergsman, Ritchie, and Goodman,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
Compass Coffee, LLC (“Applicant”) seeks registration on the Principal Register of
the mark REAL GOOD COFFEE, in stylized form, as shown below, for “Coffee,” in
International Class 30.1

1 Serial No. 87419816, filed on April 21, 2017, based upon Section 1(a) of the Trademark Act,
15 U.S.C. § 1051(a), alleging dates of first use and use in commerce on September 21, 2014.
The mark includes the following description: The mark consists of the words "REAL GOOD
COFFEE" in all orange. The color orange is claimed as a feature of the mark.
Serial No. 87419816
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The Examining Attorney refused registration of Applicant’s applied-for mark
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on two prior
registrations owned by two different registrants, and both registered on the
Supplemental Register:
1. REAL GOOD COFFEE, in standard character form, also for “Coffee,” in
International Class 30, as well as for “Coffee cups, tea cups and mugs,” in
International Class 21 (the ‘755 registration);2 and
2. REAL GOOD COFFEE (stylized) shown below

2 Registration No. 3568755, registered January 27, 2009, and disclaiming the exclusive right
to use the term “COFFEE” apart from the mark as shown. Renewed.
Serial No. 87419816
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for “Coffee substitutes; artificial coffee; tea; coffee capsules containing coffee
for brewing; coffee pods; ground coffee beans; roasted coffee beans, in
International Class 30” (the ‘573 registration)3

The Examining Attorney also refused registration on the ground that Applicant’s
applied-for mark is merely descriptive of the identified “coffee” pursuant to Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), and that Applicant’s voluntary
disclaimer of all of the wording in the applied-for mark is not acceptable to overcome
this refusal.
When the refusals were made final, Applicant filed a request for reconsideration
and an appeal. When the request for reconsideration was denied, the appeal was
resumed. The appeal is fully briefed. As discussed herein, we affirm the Section 2(d)
refusal to register based on the ‘755 registration, and for that reason do not find it
necessary to address the Section 2(e)(1) refusal.
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

3 Registration No. 5056573, registered October 4, 2016, and disclaiming the exclusive right
to use the term “COFFEE CO” apart from the mark as shown. The registration contains the
following description of the mark: The mark consists of the words “REAL GOOD” in an arch
on top of the words “COFFEE CO.” Color is not claimed as a feature of the mark.
Serial No. 87419816
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Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
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). “Not all of
the [du Pont] factors are relevant to every case, and only factors of significance to the
particular mark need be considered.” Coach Servs., Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed. Cir. 2012) (quoting In re Mighty Leaf
Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir 2010)).
We find the mark in the ‘755 registration (REAL GOOD COFFEE (in standard
character form for “coffee”), to be the most relevant for our du Pont analysis, and we
proceed accordingly. Since this is the most relevant registration, if we find a
likelihood of confusion, we need not find it as to the ‘573 registration as well. On the
other hand, if we do not reach that conclusion, we would not find it as to the ‘573
registration either. See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB
2010).
A. The Goods, Trade Channels and Purchasers
We consider first the similarities or dissimilarities between the respective goods
as identified in the application and the cited registration. See Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
Serial No. 87419816
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2014) (goods as identified in involved application and cited registration compared).
Both the application and the ‘755 registration identify “coffee.” Applicant argues that
the goods are actually different because they are “of a different character and
quality.”4 In particular, Applicant contends that it “offers premium coffee blends,
espressos and single-origin coffee products” which retail “at about $1.50-$1.58 per
ounce” while “[t]he registrant of the 3568755 registration offers only four varieties of
whole bean coffee and retails for about $0.85 per ounce.”5 It is axiomatic that the
restrictions asserted by Applicant are not listed in either its application or in the ‘755
registration, which both list, simply, “coffee.” See Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“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 the sales
of goods are directed.” (citations omitted)). The goods are identical.
As for the channels of trade, when as here, the respective identifications of goods
are identical, without restrictions as to nature, type, channels of trade, or classes of
purchasers, the identified goods are presumed to travel in the same channels of trade
to the same class of purchasers. In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012); (“[A]bsent restrictions in the application and registration,

4 7 TTABVUE 12.
5 7 TTABVUE 12.
Serial No. 87419816
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goods and services are presumed to travel in the same channels of trade to the same
class of purchasers.”). Thus, without regard to Applicant’s argument and evidence of
marketplace use, we must presume the trade channels and classes of purchasers are
the same for both the coffee sold by Applicant and the coffee sold by the registrant of
the ‘755 registration.
We find that these factors weigh heavily in favor of finding a likelihood of
confusion.
B. Strength of the Cited Mark
Applicant argues that both of the cited marks are “weak” marks that “coexist on
the Supplemental Register meaning neither registrant claims exclusive rights to its
marks.”6 Applicant further argues that “the wording REAL GOOD COFFEE is so
highly descriptive it is incapable of being source identifying.”7
While the degree of descriptiveness of the cited mark may influence whether or
not confusion is likely, it is well recognized that even weak marks are entitled to
protection against a mark that is substantially similar, or even identical, in sight,
sound, and commercial impression and used on identical goods, as here. See In re
Clorox Co., 578 F.2d 305, 198 USPQ 337, 341 (CCPA 1978) (affirming Section 2(d)
refusal of mark on Principal Register based on cited registration on Supplemental
Register).

6 7 TTABVUE 5.
7 7 TTABVUE 6.
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Applicant also submitted evidence of two websites that include similar wording in
their advertising of coffee, REAL GOOD COFFEE FOR THE PEOPLE, from
Messenger Coffee Co., and REAL.GOOD.COFFEE.DINER MUG, from St. Johns
Coffee Roasters, as well as a third company, Just Real Good Coffee, used as a trade
name for the sale of coffee.8 It is not clear from the evidence presented whether
Messenger Coffee Co. is using REAL GOOD COFFEE FOR THE PEOPLE in a
trademark or a descriptive manner for its coffee. Similarly, it is not clear whether St.
Johns Coffee Roasters is using “REAL.GOOD.COFFEE” as a trademark or as a
description of its diner mugs. Finally, it is not clear whether coffee sold under the
trade name JUST REAL GOOD COFFEE is sold under that mark.9
Applicant also submitted a copy of a third-party registration for TINCAN REAL.
GOOD. COFFEE, and design for “coffee,” registered on the Principal Register on May
30, 2017 (Registration No. 5211597), and disclaiming the exclusive right to use the
term “REAL GOOD COFFEE” apart from the mark as shown. Finally, Applicant
submitted copies of eight registrations from six different third parties with the term
“REAL GOOD” or “REAL (REEL)/GOOD” for various food items. 10 All of the
registrations either contain a disclaimer of this wording, or are registered under
Section 2(f) with a claim of acquired distinctiveness thereto, or are registered on the
Supplemental Register. None contain the exact wording “REAL GOOD COFFEE,” as

8 Attached to December 21, 2017 Response to Office Action, at 8-12.
9 Attached to December 21, 2017 Response to Office Action, at 6.
10 Attached to July 2, 2018 Request for Reconsideration, at 27-34. Applicant also submitted
copies of several applications, to which we give no consideration.
Serial No. 87419816
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registered in standard character form in the ‘755 registration, and sought in stylized
form by Applicant.
Overall, while the mark in the ‘755 registration is weak and registered on the
Supplemental Register, we do not find that the mark, which consists solely of the
term “REAL GOOD COFFEE” is so weak as to allow registration by Applicant of the
identical wording in stylized form for identical goods.
C. The Marks
We next compare the marks in their entireties for similarities and dissimilarities
in appearance, sound, connotation and commercial impression. Palm Bay Imps., 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, 101 USPQ2d at 1721. 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 U.S. Army, 85 USPQ2d 1264, 1268
(TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Here, the average purchaser includes any consumer of coffee.
Serial No. 87419816
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The mark in the ‘755 registration consists solely of the term “REAL GOOD
COFFEE” in standard character form. Applicant’s mark is a stylized version of the
identical wording, . Since the mark in the ‘755 registration is registered in
standard character form, there is no specific limitation as to the display of the size,
font, or color of the wording “REAL GOOD COFFEE.” See Viterra, 101 USPQ2d at
1910-11.
As used on the identically identified “coffee,” both marks have the same
connotation and commercial impression of offering coffee that is really good, or
perhaps is both “real” and “good.” The marks are therefore effectively identical in
sight, sound, connotation, and commercial impression.
Taking into account that the ‘755 registration is registered on the Supplemental
Register, and considering the marks as a whole, we note nevertheless that the marks
use identical wording on identical goods. Where, as here, the marks appear on goods
that are identical, the degree of similarity between the marks necessary to support a
finding of likely confusion declines. Bridgestone Ams. Tire Operations LLC v. Fed.
Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Century 21 Real
Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992).,
The first du Pont factor also favors finding a likelihood of confusion.
Serial No. 87419816
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D. Conditions of Sale
Although Applicant does not specifically refer to the sophistication and degree of
purchaser care likely to be exercised by the relevant consumers, it does refer to price
points for the coffee sold both by Applicant and by the registrant of the ‘755
registration. However, we cannot resort to extrinsic evidence to restrict the prices of
Applicant’s or Registrant’s goods or to distinguish the goods. See In re Bercut-
Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986) (evidence that relevant goods
are expensive wines sold to discriminating purchasers must be disregarded given the
absence of any such restrictions in the application or registration). Also, we must
consider the degree of care that would be exercised by the least sophisticated
consumers, which here includes ordinary consumers of coffee. See Stone Lion Capital
110 USPQ2d at 1163 (affirming that TTAB properly considered all potential
purchasers for recited services, including both sophisticated and unsophisticated
investors, since precedent requires consumer care for likelihood-of-confusion decision
be based “on the least sophisticated potential purchasers”).
We find that despite Applicant’s arguments and evidence that coffee may be
offered at varying prices, as a basic and common beverage. Coffee may also be offered
at low costs and purchased on impulse. This factor also weighs in favor of a likelihood
of confusion.
II. Conclusion
After considering all of the arguments and evidence of record as they pertain to
the relevant du Pont factors, we find that the goods are identical, and presume that
Serial No. 87419816
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they would travel through the same channels of trade to some of the same general
consumers, who may not be expected to exercise appreciable sophistication or care in
their purchases, and may instead purchase coffee on impulse. We further find that
the marks as a whole are highly similar and effectively identical in sight, sound,
connotation, and commercial impression. Accordingly, despite the weakness of the
cited mark, we find a likelihood of confusion between Applicant’s applied-for mark
, and the mark REAL GOOD COFFEE, in the ‘755 registration, both for
coffee.11
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed as to
Registration No. 3568755.

11 As stated supra, in light of our finding of likelihood of confusion, we need not discuss the
alternative 2(e)(1) refusal. See Trademark Trial and Appeal Board Manual of Procedure
(“TBMP”) (2018) § 1217, and cases cited therein.