Dayton Nut Specialties, Inc.v.Fuqua Pecans, LLC

Trademark Trial and Appeal Board

Mar 30, 2009

No. 91179464 (T.T.A.B. Mar. 30, 2009)

Mailed: March 30, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
_______

Trademark Trial and Appeal Board
_______

Dayton Nut Specialties, Inc.
v.
Fuqua Pecans, LLC
_______

Opposition No. 91179464
to Application No. 77012333
filed on October 3, 2006
_______

M. Scott Alprin of Alprin Law Offices for Dayton Nut
Specialties, Inc.

Dave Fuqua for Fuqua Pecans, LLC, Pro Se.
_______

Before Walters, Kuhlke and Bergsman, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

Dayton Nut Specialties, Inc. filed its opposition to
the application of Fuqua Pecans, LLC to register the
standard character mark REDNECK NUTS for “nut meats; shelled
nuts; snack mix consisting primarily of processed fruits,
processed nuts and/or raisins,” in International Class 29,

THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Opposition No. 91179464
2
and “unprocessed nuts,” in International Class 31.1 The
application includes a disclaimer of NUTS apart from the
mark as a whole.
As grounds for opposition, opposer asserts that
applicant’s mark, when applied to applicant’s goods so
resembles opposer’s previously used mark REDNECK for
“processed nuts” as to be likely to cause confusion, under
Section 2(d) of the Trademark Act.2
Applicant, in its answer, made denials and admissions
of the salient allegations of the claim, as we discuss
below.
The Record
The record consists of the pleadings; the file of the
involved application; various specified responses of
applicant to opposer’s interrogatories and requests for
admissions and numerous third-party registrations, made of
record by opposer’s notice of reliance; and the testimony by
declaration, as stipulated by the parties, of Kyle S.
Maschino, opposer’s vice president, with accompanying
exhibits. Applicant submitted the testimony by declaration

1 Application Serial No. 77012333, filed October 3, 2006, based upon an
allegation of a bona fide intention to use the mark in commerce in
connection with the identified goods.

2 Opposer is the owner of application serial no. 76672188, filed
February 2, 2007, for the mark REDNECK for “processed nuts,” in
International Class 29.

Opposition No. 91179464
3
of its director, Dave Fuqua. Both parties filed briefs on
the case.
Factual Findings
Through the uncontroverted declaration of Mr. Maschino,
opposer’s vice president, and the exhibits thereto, the
following facts have been established:
Opposer was founded in 1923 and produces and sells
primarily edible nut products and candy/chocolate products.
Opposer has used REDNECK in connection with hot and spicy
peanuts that it has produced and sold throughout the United
States since at least 1997. Opposer’s target market for its
peanuts is a wide range of purchasers and its sales have
been continuous. Opposer markets its products, including
its REDNECK peanuts, through catalogs, consisting of a
wholesale catalog that opposer sends to specialty food
retailers and a Yuletide catalog that opposer sends to
holiday gift customers and grocery chain brokers. Opposer
uses REDNECK in the design format shown below on the label
of opposer’s peanut product, in the text of its catalogs,
followed by a “TM,” and on its invoices.
Opposition No. 91179464
4

Through the declaration of its director, Dave Fugua,
applicant has established that owns and operates a pecan
orchard in Leland, Louisiana and that it wholesales and
retails whole and cracked pecans.
The record includes twenty-eight third-party use-based
registrations, each of which includes within the
identification of goods both nuts and peanuts.
Analysis
Inherent or Acquired Distinctiveness of
REDNECK as Used by Opposer

One argument that applicant appears to make is that
REDNECK is not inherently distinctive as a mark as used by
Opposition No. 91179464
5
opposer in connection with peanuts.3 It is correct that an
opposer relying on common law use of its mark must show, as
a threshold matter, that its mark is distinctive.
Under the rule of Otto Roth, a party opposing
registration of a trademark due to a likelihood of
confusion with his own unregistered term cannot prevail
unless he shows that his term is distinctive of his
goods, whether inherently or through the acquisition of
secondary meaning or through “whatever other type of
use may have developed a trade identity.” Otto Roth &
Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ
40, 43 (CCPA 1981).

Towers v. Advent Software Inc., 913 F.2d 942, 16 USPQ2d
1039, 1041 (Fed. Cir. 1990) (full citation added).
We take judicial notice of the definition in Merriam-
Webster’s New Collegiate Dictionary (11th ed. 2003) of
“redneck” as, in part, “1. sometimes disparaging: a white
member of the Southern rural laboring class. 2. often
disparaging: a person whose behavior and opinions are
similar to those attributed to rednecks.” Applicant states
that REDNECK describes the hot and spicy nature of opposer’s
peanuts because opposer uses REDNECK on its label in close
proximity to the words “hot” and “spicy.” However, we find
it more likely that the purchasing public will understand

3 Applicant’s arguments in its brief are sometimes not relevant to the
issues involved in this case and at all times its arguments are unclear.
Throughout this proceeding, opposer has complained of applicant’s lack
of knowledge and understanding of trademark law. Applicant admits this
lack of knowledge, but has chosen to proceed without the benefit of
counsel. While applicant, as well as administrative economy, might have
been better served had applicant sought the advice of counsel, it is a
party’s prerogative to appear without the benefit of counsel in Board
proceedings.

Opposition No. 91179464
6
REDNECK as used by opposer as it is commonly defined. As
such, on this record REDNECK is arbitrary in connection with
peanuts. Therefore, we conclude that opposer’s use of
REDNECK for peanuts is as an inherently distinctive mark.
Standing
Opposer has established its standing to oppose
registration of the involved application. In particular,
opposer has established that it is the owner of the
inherently distinctive mark REDNECK used in connection with
peanuts. As such, opposer is not a mere intermeddler.
Therefore, we find that opposer has standing. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842
(Fed. Cir. 2000).
Priority
Opposer has established its ownership of the mark
REDNECK used in connection with peanuts and that it has so
used the mark since as early as 1997, which precedes the
October 3, 2006, filing date of applicant’s application. In
view thereof, opposer has established its priority. Thus,
the only remaining issue to decide in this case is
likelihood of confusion.
Likelihood of Confusion
Our determination of likelihood of confusion under
Section 2(d) must be based on an analysis of all of the
probative facts in evidence that are relevant to the factors
Opposition No. 91179464
7
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). See also Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005); In re Majestic Distilling Company,
Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); and In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997). Opposer must establish that there is a
likelihood of confusion by a preponderance of the evidence.
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 Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209
(TTAB 1999) and the cases cited therein. The relevant du
Pont factors in the proceeding now before us are discussed
below.
The Goods
It is well established that the goods and/or services
of the parties need not be similar or competitive, or even
offered through the same channels of trade, to support a
holding of likelihood of confusion. It is sufficient that
the respective goods and/or services of the parties are
Opposition No. 91179464
8
related in some manner, and/or that the conditions and
activities surrounding the marketing of the goods and/or
services are such that they would or could be encountered by
the same persons under circumstances that could, because of
the similarity of the marks, give rise to the mistaken
belief that they originate from the same source. See Hilson
Research, Inc. v. Society for Human Resource Management, 27
USPQ2d 1423 (TTAB 1993); and In re International Telephone &
Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). The issue,
of course, is not whether purchasers would confuse the goods
and/or services, but rather whether there is a likelihood of
confusion as to the source of the goods and/or services. In
re Rexel Inc., 223 USPQ 830 (TTAB 1984).
While applicant states that its goods are limited to
pecans and opposer’s goods are limited to peanuts, we note
that the question of likelihood of confusion must be
determined based on an analysis of the goods and/or services
recited in applicant’s application vis-à-vis the goods
and/or services identified in opposer’s pleaded
registration(s). Canadian Imperial Bank v. Wells Fargo
Bank, 811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992).
Applicant’s goods are not limited to either pecans or pecan
products. Rather, as identified, applicant’s products
encompass peanuts.
Opposition No. 91179464
9
Moreover, applicant made the following relevant
responses in its answer4:
Notice of Opposition, para. 8: “The goods
identified in Applicant’s application are
identical and/or closely related to the Opposer’s
goods.”
Answer: “Correct.”

Based on applicant’s identification of goods and the
goods upon which opposer has established use of its mark, as
well as applicant’s answer to paragraph no. 8 of the notice
of opposition, we find that applicant’s identified goods
encompass and/or are closely related to opposer’s goods.
This du Pont factor weighs in favor of opposer.
Trade Channels, Purchasers and Conditions of Sale
Applicant’s identification of goods is broadly worded,
without any limitations as to channels of trade or classes
of purchasers. Similarly, opposer has established that the
trade channels and class of purchasers of its REDNECK
peanuts are not limited. Therefore, we presume that the
goods and services of the applicant and opposer are sold in

4 Applicant submitted two answers to the notice of opposition. On
October 25, 2007, applicant submitted a document entitled “Answer to
Notice of Opposition” in which it presented arguments against the
opposition in four numbered paragraphs. On November 29, 2007, applicant
submitted a document entitled “Response to Notice of Opposition” which
specifically answers the notice of opposition paragraph by paragraph.
We have considered these documents together as applicant’s answer, with
the latter document properly responding to the notice of opposition and
the earlier document considered in the nature of amplifications of
applicant’s position.
Additionally, Applicant neither admits nor denies notice of
opposition paragraphs 1 – 3; rather, applicant asserts a wholly
unrelated statement. However, it is unnecessary to construe these
responses as admissions of these paragraphs in the notice of opposition.
Opposition No. 91179464
10
all of the normal channels of trade to all of the usual
purchasers for the involved goods. See Canadian Imperial
Bank v. Wells Fargo, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir.
1987).
Moreover, applicant made the following relevant
responses in its answer and in its responses to opposer’s
request for admissions:
Notice of Opposition, para. 9: “Upon information
and belief, Applicant’s goods would be offered for
sale and promoted through the same channels of
trade and to the same general class of purchasers
as Opposer’s goods.”
Answer: “Correct.”

First Request for Admissions, No. 11: Applicant’s
goods and Opposer’s goods are sold, or would be
sold, through similar trade channels.”
Answer: “Applicant acknowledges.”

Based on applicant’s unrestricted identification of
goods and the nature of opposer’s established use of its
mark in connection with peanuts, as well as applicant’s
answer to paragraph no. 9 of the notice of opposition and
its response to request for admission no. 11, we find that
applicant’s goods will travel in the same trade channels to
the same general class of purchasers as opposer’s goods.
These du Pont factors weigh in favor of opposer.
The Marks
With respect to the involved marks, we examine the
similarities and dissimilarities of the marks in their

Opposition No. 91179464
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appearance, sound, meaning, and commercial impression. Palm
Bay Imports 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 their entireties that confusion as to the source
of the services offered under the respective marks is likely
to result. The focus is on the recollection of the average
purchaser, who normally retains a general rather than a
specific impression of trademarks. Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
In comparing the marks, it is well established
principle that, in articulating reasons for reaching a
conclusion on the issue of confusion, “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.” In re National Data Corp.,
732 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Applicant’s mark consists of two words, REDNECK NUTS. The
word REDNECK is both prominent and arbitrary in connection
with the identified goods and prominent as the first term in
the mark. The word NUTS is merely descriptive, if not
generic, in connection with the identified nuts, as
evidenced by the disclaimer in the record. We find that
Opposition No. 91179464
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REDNECK is the dominant portion of applicant’s mark and that
it is identical to opposer’s mark in its entirety.
Thus, we find that applicant’s mark is substantially
similar to opposer’s mark in sound, appearance, connotation
and overall commercial impression.
This du Pont factor weighs in opposer’s favor.
Conclusion
When we consider the record and the relevant likelihood
of confusion factors, and all of opposer’s and applicant's
arguments relating thereto, including those arguments not
specifically addressed herein,5 we conclude that the du Pont
factors, on balance, weigh in favor of a finding of
likelihood of confusion. In other words, in view of the
substantial similarity in the commercial impressions of
applicant’s mark, REDNECK NUTS, and opposer’s mark, REDNECK,
their contemporaneous use on the overlapping and/or closely
related goods involved in this case is likely to cause
confusion as to the source or sponsorship of such goods.

5 As indicated above, applicant has made a number of statements that are
either inaccurate or not relevant to the issues in this case. For
example, applicant contends that its mark has acquired distinctiveness
and opposer has not met its burden to show otherwise. There has been no
question raised in this proceeding as to the distinctiveness of
applicant’s proposed trademark. Opposer’s burden in this proceeding is
to establish its standing, priority, and that there is a likelihood of
confusion. Opposer has met this burden. Applicant also seems to
suggest that because the application was allowed for publication by the
examining attorney, that opposer is somehow estopped from asserting its
claim. This is inaccurate. An inter partes proceeding before the Board
is unrelated to the determination made by the examining attorney during
the ex parte examination of an application.

Opposition No. 91179464
13
Decision: The opposition is sustained on the ground of
likelihood of confusion, and registration to applicant is
refused.