ConAgra Foods RDM, Inc.v.Fresh Start Gourmet, LLC

Trademark Trial and Appeal Board

May 6, 2013

No. 91199770 (T.T.A.B. May. 6, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
May 6, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

ConAgra Foods RDM, Inc.
v.
Fresh Start Gourmet, LLC
_____

Opposition No. 91199768
to application Serial No. 85099130
filed on May 11, 2011

Opposition No. 91199770
to application Serial No. 85099135
filed on May 11, 2011

____

Christopher M. Bikus of Husch Blackell LLP for ConAgra Foods RDM, Inc.

Michael R. Parker of M.R. Parker Law for Fresh Start Gourmet, LLC.
_____

Before Seeherman, Cataldo, and Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:

Fresh Start Gourmet, LLC (applicant) filed applications to register the marks
EGGEEZ (in standard character form) for “frozen and packaged prepared ready-to-
Oppositions 91199768 and 91199770
2

eat meal consisting of primarily cooked eggs, meat and/or cheese and/or vegetables”
in Class 29 1 and EEGEEZ (in stylized form), as set forth below:

for “frozen and packaged prepared ready-to-eat pre-cooked meal consisting of
primarily eggs, meat and/or cheese and/or vegetables” in Class 29.2
ConAgra Foods RDM, Inc. (opposer) opposed both applications on the ground
of likelihood of confusion. Opposer alleges prior use of the mark EGG EZE, and
ownership of Reg. No. 1265159 for the mark EGG EZE for “frozen whole egg
product” in Class 29.
In its answers, applicant admitted that priority is not an issue because
opposer’s date of first use in commerce for its mark is well prior to the filing of
applicant’s application. It denied all other salient allegations in the notices of
opposition. Applicant also made several affirmative allegations as to why there is
no likelihood of confusion. We regard these as explanations for its denial of
likelihood of confusion.
The proceedings were consolidated on July 27, 2012. The consolidated
opposition has been fully briefed.

1 Application Serial No. 85099130, filed August 3, 2010, based on intent to use pursuant to
Section 1(b) of the Trademark Act.
2 Application Serial No. 85099135, filed August 3, 2010, based on intent to use pursuant to
Section 1(b) of the Trademark Act.
Oppositions 91199768 and 91199770
3

The Record and Evidentiary Issues
By rule, the record includes the file of the opposed applications and the
pleadings. Trademark Rule 2.122(b). The record also includes the testimony, with
exhibits, of John Eric Anderson, Director of Category Marketing for opposer.
Opposer introduced by notice of reliance a title and status copy of opposer’s Reg. No.
1254159 for EGG EZE in typed format3 and applicant’s responses to opposer’s
interrogatories.
Applicant did not submit any evidence or take any testimony during its
testimony period. Instead, applicant attached evidence to its appeal brief. Opposer
objected to this evidence as being untimely and requested that the materials not be
given any consideration. As set forth in Life Zone Inc. v. Middleman Group Inc., 87
USPQ2d 1953, 1955 (TTAB 2008):
The Board sets trial periods during which the parties may
submit evidence by filing notices of reliance or by taking
testimony. Evidence submitted outside of the trial periods
— including that attached to briefs – is untimely, and will
not be considered. Conversely, evidence which was timely
filed during the parties’ trial periods need not and should
not be resubmitted. Thus, while exhibits to briefs are not
explicitly prohibited by the Trademark Rules, the Board
will usually ignore them, because they comprise either
untimely evidence or unnecessary copies of timely
evidence.
(internal citations omitted).
Exhibits A – C are documents from the opposed applications. By rule, these
are already of record and while the submission with applicant’s brief was

3 Issued on January 24, 1984; Section 8 & 15 affidavits accepted and acknowledged;
renewed.
Oppositions 91199768 and 91199770
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unnecessary, these documents will be considered. Exhibits D – H are not of record
and thus will not be considered.
To succeed in this action, opposer must establish both that it has standing to
bring the action, priority and a likelihood of confusion.
Standing
Opposer has properly made its registration of record. Accordingly, opposer
has established its standing in this proceeding. Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Industries, Inc. v.
Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
Priority
Opposer is the owner of Reg. No. 1254159 for the mark EGG EZE (in typed
format) for frozen whole egg product. Opposer’s ownership of its pleaded
registration removes priority as an issue with respect to the goods covered by the
registration. Top Tobacco LP v. North Atlantic Operating Co., 101 USPQ2d 1163,
1169 (TTAB 2011), citing King Candy, Inc. v. Eunice King's Kitchen, Inc., 496 F.2d
1400, 82 USPQ 108 (CCPA 1974). Opposer’s priority was also admitted by
applicant in its answer to the notice of opposition, ¶ 4.
Likelihood of confusion.
The only ground for opposition is likelihood of confusion. Our determination
of this issue is based on an analysis of all of the probative facts in evidence that are
relevant to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
Oppositions 91199768 and 91199770
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1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic Distilling Co., Inc., 315
F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods and/or
services. See: Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976). See also, In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
As discussed supra, this consolidated proceeding involves Ser. No. 85099130
for the mark EGGEEZ for frozen and packaged prepared ready-to-eat meal
consisting of primarily cooked eggs, meat and/or cheese and/or vegetables; and Ser.
No. 85099135 for the mark EEGEEZ in stylized form, as set forth below

for frozen and packaged prepared ready-to-eat pre-cooked meal consisting of
primarily eggs, meat and/or cheese and/or vegetables. To all intents and purposes,
the only difference between the two applications is that the mark EEGEEZ is in
standard character form in Ser. No. 85099130 and in stylized form in Ser. No.
85099135. While the identifications of goods in the two applications vary slightly,
they are essentially the same.
We start our analysis with the second DuPont factor, the relationship
between the goods. It is well established that in a proceeding such as this, the
Oppositions 91199768 and 91199770
6

question of likelihood of confusion must be determined on the basis of an analysis of
the mark as applied to the goods and/or services recited in the applicant’s
application vis-à-vis the goods and/or services recited in the opposer’s registration.
Canadian Imperial Bank of Commerce v. Wells Fargo Bank, NA, 811 F.2d 1490, 1
USPQ2d 1813, 1814 (Fed. Cir. 1987).
Opposer’s goods are frozen whole eggs. Applicant’s goods are frozen and
packaged prepared ready-to-eat meals consisting of primarily cooked eggs, meat
and/or cheese and/or vegetables. “[T]he goods being compared need not be identical
or directly competitive in order for likelihood of confusion to be found--they need
only be related in some manner, or the conditions surrounding their marketing be
such, that they could be encountered by the same purchasers under circumstances
that, because of the similarities of the marks, could give rise to the mistaken belief
that they come from same source.” In re Southern Belle Frozen Foods Inc., 48
USPQ2d 1849, 1850 (TTAB 1998). Both parties’ goods are frozen food products
consisting of eggs or containing eggs as the main ingredient. Applicant’s Brief, p. 6.
Applicant argues that opposer’s goods are food service items that are “sold in
large quantities specifically aimed at the industrial setting” and that opposer’s
products are purchased by “professionals in the food service industry…[who] are
sophisticated buyers.” Applicant’s Brief, p. 10. Applicant has submitted no evidence
supporting its argument. However, even if it had, since the identifications of goods
contain no limitations to the channels of trade or customers, such evidence would
not affect our decision. “Where the goods in a cited registration are broadly
Oppositions 91199768 and 91199770
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described and there are no limitations in the identification of goods as to their
nature, type, channels of trade or classes of purchasers, it is presumed that the
scope of the registration encompasses all goods of the nature and type described,
that the identified goods move in all channels of trade that would be normal for
such goods, and that the goods would be purchased by all potential customers.” In
re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Further, opposer has testified that its EGG EZE goods are “sold in warehouse
clubs or club stores.” Anderson Dep. at 12:16-17. Accordingly, because of the
nature of the respective goods, we must presume that both parties’ goods may be
sold in the frozen food sections of supermarkets, warehouse clubs, club stores and
grocery stores to the same class of purchasers. See In re Southern Belle Frozen
Foods Inc., 48 USPQ2d at 1850 (finding likelihood of confusions between SHRIMP
ROYALE for “packaged cooked meal consisting of fried shrimp, potatoes, sauce and
a muffin or roll” and SEAFOOD ROYAL for “frozen seafood, namely uncooked crab
based seafood blend in a natural crab shell”). In addition, the goods may be sold to
institutional customers.
Accordingly, we find that the goods are related, and further, that the goods
travel in the same channels of trade and are sold to the same classes of purchasers.
As such, these DuPont factors favor opposer.
Contrary to applicant’s argument that the purchasers of opposer’s products
are “generally professionals in the food service industry … [who] are sophisticated
Oppositions 91199768 and 91199770
8

buyers” (discussed supra),4 opposer argues that both its goods and applicant’s goods
are inexpensive and can be impulse purchases.5 Opposer points to applicant’s
interrogatory response that the intended retail price of its EGGEEZ product will be
$3.99 for a 10 oz. retail pack.6 Since the price of applicant’s goods are quite low, the
products are not likely to be purchased with a great deal of deliberation, and may be
the subject of impulse purchases. Moreover, as discussed above, since the
identification of goods in opposer’s registration does not restrict the channels of
trade or the purchasers of the goods, we must assume that opposer’s goods can also
be sold to the public at large, which would include ordinary and unsophisticated
purchasers.
Accordingly, we treat this Du Pont factor as favoring a finding of likelihood of
confusion.
Opposer has asserted that its mark is a famous mark. However, although
opposer’s registration issued in 1984, the sales figures that are of record are modest,
particularly when compared to its more popular egg products.7 Accordingly, we find
that opposer has not established that the mark EGG EZE is famous. As we have
stated in previous decisions, in view of the extreme deference that is accorded to a

4 Applicant’s brief, p. 10.
5 Opposer’s brief, p. 12.
6 Applicant’s response to opposer’s interrogatory number 17 (opposer’s second notice of
reliance).
7 Because opposer has designated its sales figures as confidential, we refer to them in
general terms. However, the sales of opposer’s EGG EEZ branded products are a small
fraction of the sales of its more popular egg products, including EGG BEATERS.

Oppositions 91199768 and 91199770
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famous mark in terms of the wide latitude of legal protection it receives, and the
dominant role fame plays in the likelihood of confusion analysis, we think that it is
the duty of a plaintiff asserting that its mark is famous to prove it definitively.
Research in Motion Ltd. v. Defining Presence Marketing Group Inc., 102 USPQ2d
1187, 1192 (TTAB 2012).
We turn next to the first DuPont factor, the similarity of the marks. In
comparing the marks we must consider the appearance, sound, connotation and
commercial impression of the marks at issue. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005). In evaluating the similarities between marks, the emphasis must
be on the recollection of the average purchaser who normally retains a general,
rather than specific, impression of trademarks. In re Cynosure, Inc., 90 USPQ2d
1644, 1645 (TTAB 2009), citing Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
108 (TTAB 1975).
Applicant argues that the marks are not similar because images used on the
parties’ packaging and web pages are different. This argument is unavailing. The
issue of likelihood of confusion must be decided based upon a comparison of
applicant’s marks as set forth in the applications and the mark in opposer’s
registration, and not upon a comparison of applicant’s marks and opposer’s mark as
they may appear on the goods or websites. See Nike Inc. v. Maher, 100 USPQ2d
1018, 1023 (TTAB 2011). See also Ultracashmere House Ltd. v. Springs Mills Inc.,
828 F.2d 1580, 4 USPQ2d 1252, 1254 (Fed. Cir. 1987).
Oppositions 91199768 and 91199770
10

Turning to the specific marks at issue, we will discuss the EGGEEZ standard
character mark first. The proper comparison is solely of the mark in the
application, which is EGGEEZ, and the mark in opposer’s registration, which is
EGG EZE. These marks are similar in appearance, both beginning with the word
EGG followed by the identical letters E, E and Z. Although the final two letters of
the marks are reversed, this does not make a noticeable difference in the
appearance of the marks. Moreover, the fact that applicant’s mark consists of one
word and opposer’s mark consists of two words is not sufficient to avoid likelihood of
confusion. The presence or absence of a space between virtually the same words is
not a significant difference. Stockpot, Inc. v. Stock Pot Restaurant, Inc., 220 USPQ
52, 54 (TTAB 1983), aff’d, 737 F.2d 1576, 222 USPQ 665 (Fed. Cir. 1984) (“There is
no question that the marks of the parties [STOCKPOT and STOCK POT] are
confusingly similar. The word marks are phonetically identical and visually almost
identical”); In re Best Western Family Steak House, Inc., 222 USPQ 827, 827 (TTAB
1984) (“There can be little doubt that the marks [BEEFMASTER and BEEF
MASTER] are practically identical”).
Applicant argues that the marks are different in sound, since applicant
intends the suffix “EEZ” to be pronounced “ies” and the suffix of opposer’s mark
would be pronounced “ease.” This argument is also unavailing. “There is no correct
pronunciation of a trademark, and consumers may pronounce a mark differently
than intended by the brand owner.” In re Viterra Inc., 101 USPQ2d 1905, 1912
(Fed. Cir. 2012). See Interlego AG v. Abrams/Gentile Entm't Inc., 63 USPQ2d 1862,
Oppositions 91199768 and 91199770
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1863 (TTAB 2002) (finding similarity between LEGO and MEGO, despite the
applicant's contention that consumers would pronounce MEGO as “me go”). Under
normal pronunciation rules for EEZ and EZE, they are likely to be pronounced the
same, as will the marks EGGEEZ and EGG EZE.
The marks are also similar in connotation and commercial impression in that
each mark suggests “easy to prepare egg dishes.” Both parties created their marks
to convey the “the ease” of preparing/cooking egg dishes. Opposer’s brief, p.21 and
Applicant’s response to opposer’s interrogatory number 19 (opposer’s second notice
of reliance).
Accordingly, we find that the mark EGGEEZ, which is the subject of Ser. No.
85099130 (Opp. No. 91199768) is similar to opposer’s mark EGG EZE, and that this
du Pont factor favors opposer.
The only difference between the typed format mark EEGEEZ and the mark
in the other opposed application (Ser. No. 85099135) is the stylization of the term
EEGEEZ, which is set forth below
.
For the same reasons discussed above, the stylized mark EGGEEZ is
virtually identical to opposer’s mark in sound. The mark is also similar in
appearance to opposer’s mark. Opposer’s mark is in typed form (now called
“standard character format”). “’Standard character’ or ‘typed’ registrations are
Oppositions 91199768 and 91199770
12

federal mark registrations that make no claim to any particular font style, color, or
size of display and, thus, are not limited to any particular presentation.” Citigroup
Inc. v. Capital City Bank Group Inc., 637 F3d 1344, 98 USPQ2d 1253, 1256 (Fed.
Cir. 2011). Since opposer’s mark is unrestricted as to presentation, we must
consider that opposer’s mark could be used in the same stylization as applicant’s
mark. Id., at 1259. Thus, the stylization of applicant’s mark is not sufficient to
distinguish it from opposer’s mark.
Further, as with EGGEEZ in standard characters, EGGEEZ in stylized font
and opposer’s mark have the same connotation and convey the same commercial
impression. Accordingly, we find that the mark EGGEEZ (in stylized form) which is
the subject of Ser. No. 85099135 (Opp. No. 91199770) is similar to opposer’s mark
EGG EZE.
Having considered all the evidence and argument on the relevant DuPont
factors, whether specifically discussed herein or not, we conclude that applicant’s
use of the marks EEGEEZ and EEGEEZ in stylized form for its goods is likely to
cause confusion with opposer’s mark for its goods.
Decision: Opposition Nos. 91199768 and 91199770 are sustained on the
ground of likelihood of confusion under Section 2(d) of the Trademark Act and
registration to applications Ser. Nos. 85099130 and 85099135 is refused.