Compassion in World Farming

Trademark Trial and Appeal Board

Feb 14, 2017

No. 86039608 (T.T.A.B. Feb. 14, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: February 14, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Compassion in World Farming
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Serial No. 86039608
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Marina A. Lewis of Procopio, Cory, Hargreaves & Savitch LLP,
for Compassion in World Farming.
April Roach, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____

Before Quinn, Bergsman and Pologeorgis,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Compassion in World Farming (“Applicant”) seeks registration on the Principal
Register of the mark GOOD EGG AWARD COMPASSION IN WORLD FARMING
and design, shown below,

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for the goods listed below:
Meat, poultry and game; meat extracts; preserved, frozen,
dried and cooked fruits and vegetables; jellies, jams
compotes; eggs; milk; edible oils and fats; cheese; prepared
meals and ready meals, namely, prepared meals and ready
meals consisting primarily of eggs, poultry, meat, seafood,
or vegetables, in Class 29.1
Applicant disclaimed the exclusive right to use the words “Award” and “World
Farming.”
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark so resembles the marks listed below, all owned by the same entity,
as to be likely to cause confusion:
• Registration No. 1237533 for the mark THE GOOD EGG PEOPLE (typed
drawing) for “fresh eggs,” in Class 29;2
• Registration No. 2508050 for the mark GOODEGG.COM and design, shown
below, for “eggs and egg products, namely fresh eggs, shell eggs, dried eggs, liquid
eggs, sugared yolks, salted yolks, dried yolks, dried whites, powdered egg,” in Class
29;3

1 Application Serial No. 86039608 was filed on August 15, 2013, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce.

2 Registered May 10, 1983; second renewal. Registrant disclaimed the exclusive right to use
the word “egg.”

3 Registered November 13, 2001; renewed.
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and

• Registration No. 3357896 for the mark GOOD EGG (standard characters) for
“Liquid eggs and liquid egg products, namely, no-cholesterol egg substitute and egg
whites,” in Class 29.4
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. We affirm the refusal to register.
Our determination 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) (“du Pont”) (cited in B&B Hardware, Inc. v. Hargis Ind.,
Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic Distilling
Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each
du Pont factor that is relevant and for which there is evidence of record. See M2
Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir.
2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB
2015) (“While we have considered each factor for which we have evidence, we focus
our analysis on those factors we find to be relevant.”). In any likelihood of confusion

4 Registered December 18, 2007; Sections 8 and 15 affidavits accepted and acknowledged.
Serial No. 86039608
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analysis, two key considerations are the similarities between the marks and the
similarities between the goods and/or services. See In re Chatam Int’l Inc., 380 F.2d
1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); 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.”); see also In re
i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015).
A. The similarity or dissimilarity and nature of the goods and established, likely-
to-continue channels of trade.

The goods are in part identical.5 Where the goods are in part identical, we must
presume that the channels of trade and classes of purchasers are the same. See In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (legally identical
goods are presumed to travel in same channels of trade to same class of purchasers);
In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where
there are legally identical goods, the channels of trade and classes of purchasers are
considered to be the same); United Global Media Grp., Inc. v. Tseng, 112 USPQ2d
1039, 1049 (TTAB 2014); American Lebanese Syrian Associated Charities Inc. v. Child
Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011).
B. The number and nature of similar marks in use on similar goods.
Evidence of extensive registration and use by others of a term on the same or very
similar goods can be “powerful” evidence of weakness. See Jack Wolfskin Ausrustung

5 “Applicant does not dispute that its goods are identical (in the case of eggs) or related to
those included in the Cited Marks.” Applicant’s Brief, p. 6 (9 TTABVUE 7).
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Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363,
116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC,
794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). The purpose of introducing
third-party uses is to show that customers have become so conditioned by a plethora
of such similar marks that they learned to distinguish between different marks on
the basis of minute distinctions. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005).
Applicant contends that “the term ‘good egg’ is widely used in the marketplace by
other sellers and as a result is considered a weak element. Therefore, each seller is
only entitled to a narrow scope of protection.”6 To lend support its contention that the
term “Good Egg” is widely used, Applicant submitted excerpts from numerous third-
party websites using the term “Good Egg,” some as a trademark related to eggs, some
as a trademark for goods and services other than those related to eggs, or some merely
as a synonym for a “good fellow” and unrelated to eggs.7 We focus our analysis on the
third-party websites related to eggs because third-party use unrelated to eggs is
irrelevant. See Nat’l Cable Television Ass’n, Inc. v. Am. Cinema Editors, Inc., 937 F.2d
1572, 19 USPQ2d 1424, 1430 (Fed. Cir. 1991) (discounting the probative value of
third-party use where such uses were unrelated to services at issue); SBS Products

6 Applicant’s Brief, p. 15 (9 TTABVUE 16).
7 Applicant’s October 5, 2015 Response. The term “Good Egg” is defined as “Slang A fellow; a
person: He’s a good egg.” Credo Reference website (credoreference.com) based on The
American Heritage Dictionary of the English Language attached to the December 4,
2013 Office Action, pp. 25-26; see also Vocabulary.com (“a good chap or a decent fellow”)
attached to the Applicant’s August 5, 2014 Response, p. 14.
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Inc. v. Sterling Plastic & Rubber Products Inc., 8 USPQ2d 1147, 1149 n.6 (TTAB
1988) (“[E]ven if evidence of such third-party use were submitted, it would be of no
aid to respondent herein where the third-party usage was for goods unrelated to
either petitioner's skin care products or respondent's stuffing box sealant”).
Applicant submitted only one relevant third-party website. The Egg Nutrition
Center (eggnutritioncenter.org) uses the mark GOOD EGG PROJECT and GOOD
EGG PROJECT and design, shown below,

to identify an association service promoting the interests of farmers and educational
services in field of eggs.8
Applicant also submitted an excerpt from The Western Montana Growers
Cooperative (no Uniform Resource Locator “URL” provided) that has a web page
entitled “Good Egg Farm”; but the webpage is otherwise without any information.9
Because there is so little information on this web page, we are unable to draw any
relevant conclusions from it.

8 October 5, 2015 Response, p. 22; see also the IncredibleEgg.org which appears to refer to the
same services. October 5, 2015 Response, p. 8.
9 October 5, 2015 Response, p. 29.
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Applicant submitted several websites which use the term “Good Egg” related to
eggs or farming but not as a trademark. Those websites are discussed below:
• The American Humane Association website (humaneheartland.org) has a
webpage entitled “Be a good egg … buy a good egg!”10

Through this webpage, the American Humane Association promotes “humanely
raised eggs from hens raised on farms that meet our rigorous humane animal welfare
standards.” The American Humane Association uses the phrase “Be a good egg … buy
a good egg!” as an informational phrase or title of a webpage rather than as a
trademark or service mark related to eggs.
• Likewise, an article by Cheryl Long and Umut Newbury posted
August/September 2005 on an unidentified website is entitled “Free-Range Eggs: The
Good Egg.”11 The term “good egg” is used as part of the book title, not as a trademark.
• Good Egg Marketing (goodeggmarketing.com) “is a Massachusetts-based
business that specializes in promoting good food and good causes.”12 Good Egg
Marketing works with “businesses and organizations that produce, provide or

10 October 5, 2015 Response, p. 6.
11 October 5, 2015 Response, p. 36.
12 October 5, 2015 Response, p. 15.
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promote delicious, healthy, sustainable food for all.” Good Egg Marketing is a
marketing firm, not directly involved in selling eggs.
• The American Egg Board and SixDegrees.org organized “The Good Egg
Challenge” to battle hunger.13
•The Marie Simmons website (no URL provided) advertises the “the good egg”
cookbook.14
•The Oro Valley, Arizona website (no URL provided) promotes The Good Egg
restaurant.15
In this case, Applicant’s evidence does not rise to the level of demonstrating that
the third-party use of “Good Egg” in connection with eggs is so widespread as to
“condition” the consuming public. In other words, Applicant’s evidence is insufficient
for us to find that consumers are so used to seeing marks containing the term GOOD
EGG used in connection with eggs that such use undermines the strength of
Registrant’s mark.
Applicant also argues that the descriptive meaning of “Good Egg” cannot be
ignored when Registrant’s goods are eggs.16 However, because the term “Good Egg”
has multiple meanings (i.e., a high quality egg or a good fellow), one of which is not
merely descriptive, the term “Good Egg” in Registrant’s marks is not merely
descriptive or it does not need to be disclaimed. See In re Symbra’ette, Inc., 189 USPQ

13 October 5, 2015 Response, p. 20.
14 October 5, 2015 Response, p. 24.
15 October 5, 2015 Response, p. 27.
16 Applicant’s Brief, pp. 9-10 (9TTABVUE 10-11).
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448 (TTAB 1975) (holding SHEER ELEGANCE for panty hose to be a registrable
unitary expression; thus, no disclaimer of "SHEER" considered necessary); see also
In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968) (SUGAR &
SPICE for bakery products); In re Tea and Sympathy, Inc., 88 USPQ2d 1062 (TTAB
2008) (holding THE FARMACY registrable for retail store services featuring natural
herbs and organic products and related health and information services relating to
dietary supplements and nutrition); In re Simmons Co., 189 USPQ 352 (TTAB 1976)
(THE HARD LINE for mattresses and bed springs); In re Del. Punch Co., 186 USPQ
63 (TTAB 1975) (THE SOFT PUNCH for noncarbonated soft drink); In re National
Tea Co., 144 USPQ 286 (TTAB 1965) (NO BONES ABOUT IT for fresh pre-cooked
ham). Even if the term “Good Egg” is suggestive, it is still entitled to protection
against the registration of a similar mark for identical or closely related goods. See
King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109
(CCPA 1974) (“The likelihood thereof is to be avoided, as much between “weak” marks
as between “strong” marks, or as between a “weak” and a “strong” mark.”); Top
Tobacco LP v. North Atlantic Operating Co., 101 USPQ2d 1163, 1173 (TTAB 2011).
C. The similarity or dissimilarity of the marks.
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 comparing the marks, we are mindful that where, as here, the goods are in part
identical, the degree of similarity necessary to find likelihood of confusion need not
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be as great as where there is a recognizable disparity between the goods. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); 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 Prod. Inc. v. Ing-Jing Huang,
84 USPQ2d 1323, 1325 (TTAB 2007).
“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 connection
between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 101 USPQ2d at
1721; see also 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 mem., 972 F.2d 1353 (Fed. Cir. 1992).
The marks are similar in that they share the term “Good Egg.” They differ most
noticeably in that Applicant’s mark includes the design element of an egg with a halo
and the advertising legend “Compassion in World Farming” next to a goat design.
Nevertheless, we find that the dominant part of Applicant’s mark is the wording
“Good Egg Award” because those words are the most significant part of Applicant’s
mark and catch the consumer’s eye due to their size and location in the mark. In
addition, “Good Egg Award” is the portion of the mark that consumers will use to
refer to Applicant’s products. In the case of marks consisting of words and a design,
the words are normally accorded greater weight because the words are likely to make
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an impression upon purchasers, would be remembered by them, and would be used
by them to request the services. See In re Viterra Inc., 671 F.3d 1358, 1362, 101
USPQ2d 1905, 1908, 1911 (Fed. Cir. 2012) (citing CBS Inc. v. Morrow, 708 F. 2d 1579,
1581-82, 218 USPQ 198, 200 (Fed. Cir 1983)); Sweats Fashions Inc. v. Pannill
Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987). There is nothing
improper in stating that, for rational reasons, more or less weight has been given to
a particular feature of a mark, such as a common dominant element, provided the
ultimate conclusion rests on a consideration of the marks in their entireties. In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Further reinforcing the significance of the term “Good Egg Award” as the
dominant part of Applicant’s mark is the fact that the egg design with the halo
engenders the commercial impression of a “good fellow” or “good citizen,” thus,
emphasizing that meaning of the term “Good Egg.”
Finally, the phrase “Compassion in World Farming” and the goat design has less
prominence because of its small size and location at the bottom of the mark.
The marks have similar meanings and engender similar commercial impressions.
As noted above, Applicant’s mark engenders the commercial impression of the good
citizen award because of the egg design with a halo. It also carries the meaning and
commercial impression of a high quality egg product award. Likewise, Registrant’s
marks, THE GOOD EGG PEOPLE, GOODEGG.COM and design, and GOOD EGG,
carry both similar meanings and commercial impressions.17

17 Suffice it to say, we disagree with Applicant’s argument that the Registrant’s marks “can
only indicate a quality or feature of the products themselves.” Applicant’s Brief, p. 9 (9
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Applicant argues that the “Award” in Applicant’s mark GOOD EGG AWARD
“suggests the philanthropic efforts associated with Applicant’s goods and services.”18
First, the term “Good Egg Award” also engenders the commercial impression of a
commendation for high quality products. Second, Applicant’s description of goods
does not include any reference to philanthropic efforts. Because we are required to
consider Applicant’s goods as described in its application, Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-62 (Fed.
Cir. 2014); Octocom Sys. Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990), we may not consider extrinsic evidence
regarding the goods in determining the commercial impression engendered by the
mark. See Coach Servs., Inc. v. Triumph Learning LLC, 96 USPQ2d 1600, 1609
(TTAB 2010), aff’d., 101 USPQ2d at 1721 (“we are compelled to consider the nature
of the respective goods and services.”); cf. 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). In any event, we have already found
that the egg design with a halo engenders the commercial impression of a good citizen
award.

TTABVUE 10). The “Good Egg” double entendre is clearly applicable to Registrant’s mark
THE GOOD EGG PEOPLE.
We also disagree with Applicant’s argument that the additional elements in Applicant’s
marks create a commercial impression that is different than Registrant’s marks. Applicant’s
Brief, p. 11 (9 TTABVUE 12).
18 Applicant’s Brief, pp. 8-9 (9TTABVUE 9-10).
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In view of the foregoing, we find that the marks are similar in their entireties in
terms of appearance, sound, connotation and commercial impression.
D. Balancing the factors.
Because the marks are similar, the goods are in part identical and we must
presume that they move in the same channels of trade, we find that Applicant’s mark
GOOD EGG AWARD COMPASSION IN WORLD FARMING and design for, inter
alia, eggs, is likely to cause confusion with the registered marks THE GOOD EGG
PEOPLE, GOODEGG.COM and design, and GOOD EGG, all for eggs.
Decision: The refusal to register Applicant’s mark GOOD EGG AWARD
COMPASSION IN WORLD FARMING and design is affirmed.