European Specialties, LLC DBA Holy Cow! Kosher and Albert Mayzels

Trademark Trial and Appeal Board

Dec 13, 2017

No. 86859900 (T.T.A.B. Dec. 13, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: December 13, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re European Specialties, LLC DBA Holy Cow! Kosher and Albert Mayzels
_____

Serial No. 86859900
_____

Joshua A. Schaul of Sherman IP LLP,
for European Specialties, LLC DBA Holy Cow! Kosher and Albert Mayzels
Jessica (Lauren) Turner, Trademark Examining Attorney, Law Office 123,
Susan Hayash, Managing Attorney.
_____

Before Wellington, Greenbaum and Coggins,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
European Specialties, LLC DBA Holy Cow! Kosher and Albert Mayzels
(“Applicants”) seek registration on the Principal Register of the mark HOLY COW!
KOSHER (in standard characters, KOSHER disclaimed) for
Substitute bacon; substitute bacon bits; beef; beef jerky;
beef patties; substitute charcuterie; chicken; chicken stock;
substitute ham; substitute head cheese; hot dogs; beef
kielbasa, turkey kielbasa, chicken kielbasa; beef, veal,
turkey, chicken knockwurst; liver; liver paste; liver paté;
substitute mortadella; substitute pancetta; substitute
prosciutto; beef and lamb ribs; salami; beef or chicken-
based sausage meat; sausages; turkey; turkey burger
patties; turkey sausages; veal; veal stock; substitute
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braunschweiger; corned beef; corned beef hash; dried beef;
frozen chicken, namely, breast; frozen chicken, namely, leg
quarters; meat-based snack foods; poultry, namely chicken;
poultry, namely, turkey; poultry, namely, duck; poultry,
namely, goose; preserved meats and sausages; processed
lamb; processed meat, namely, beef; processed meat,
namely, turkey; processed meat, namely, duck; processed
meat, namely, veal; processed meat, namely, lamb;
processed meat, namely, elk; processed meat, namely,
chicken; processed meat, namely, bison; roast beef; smoked
sausages; turkey sausages; uncooked sausages; all of the
foregoing is certified Kosher, in International Class 29.1
The Trademark Examining Attorney has refused registration of Applicants’ mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicants’ mark, when applied to Applicants’ goods, so resembles the previously
registered mark HOLY COW (in typed format) for “sandwich spreads, namely, sweet
fruit based spread and savory vegetable based spread” in International Class 29, and
“condiments, namely, ketchup, mustard, and mint; spices; sauces for curry and rice”
in International Class 30, as to be likely to cause confusion, mistake or deception.2

1 Application Serial No. 86859900 was filed on December 29, 2015 based upon Applicants’
claim of first use anywhere and use in commerce since at least as early as February 1, 2014,
with prior use in a different form since at least as early as November 4, 2014. The claimed
date of prior use in a different form appears to be a typographical error, as it postdates
Applicants’ February 1, 2014 claimed date of first use by approximately nine months. The
Board has deleted the stray end parenthesis between the word “chicken” and “knockwurst”
which first appeared in Applicants’ October 18, 2016 Response to Office Action, as it is an
obvious typographical error. See TMEP §§ 707.02(6) and 1402.12 (Oct. 2017).
2 Registration No. 2906127 issued on November 30, 2004, from an application filed April 4,
2001; renewed. Other goods, including “meat, fish, poultry, game and seafood” in
International Class 29, were deleted from the registration before the Examining Attorney
issued her First Office Action. Before November 2, 2003, “standard character” drawings were
known as “typed” drawings. A typed mark is the legal equivalent of a standard character
mark. TMEP § 807.03(i).
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When the refusal was made final, Applicants appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
Applicants submitted evidence with their brief and with their reply brief. Only
evidence filed during examination is timely, Trademark Rule 2.142(d), 37 C.F.R.
§ 2.142(d), and it should not be submitted (or resubmitted) on appeal. See TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 1203.02(e) (June 2017).
The evidence attached to Applicants’ brief consists of listings from the TESS
electronic database and printouts of several third-party applications and
registrations from the TSDR electronic database for marks that contain the word
HOLY or COW for goods in Class 29. The marks of Applicants and Registrant also
appear on each list. We will consider this evidence because Applicants previously
made the same evidence of record with their April 14, 2017 Request for
Reconsideration. The Examining Attorney waived any objection to consideration of
the TSDR lists themselves because when she issued her denial of Applicants’ Request
for Reconsideration, she did not advise Applicants that the listings are insufficient to
make the registrations of record. The listings also have been stipulated into the record
because the Examining Attorney discussed them her brief.3

3 See discussion in Examining Attorney’s Brief, 9 TTABVUE 16-19, specifically referencing
(at 9 TTABVUE 18) the evidence submitted on pages 20-108 of Applicants’ Brief.
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On the other hand, we will not consider the exhibits submitted for the first time
with Applicants’ reply brief as the exhibits are untimely, and the Examining Attorney
did not have an opportunity to respond to them.4 In re City of Houston, 101 USPQ2d
1534, 1537 (TTAB 2012) (citing In re Zanova Inc., 59 USPQ2d 1300, 1302 (TTAB
2001) (“By attempting to introduce evidence with its reply brief, applicant has
effectively shielded this material from review and response by the Examining
Attorney.”)), aff’d, 731 F.3d 1326, 108 USPQ2d 1226 (Fed. Cir. 2013).
II. Applicable Law – Likelihood of Confusion
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., 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 or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976). We discuss below these and other relevant factors.
See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947
(Fed. Cir. 2006) (even within du Pont list, only factors that are “relevant and of
record” need be considered).

4 This material consists of a four-page printout from the Amazon website with images of
packaged bacon products and their prices. Applicants’ Reply Brief, 10 TTABVUE 8-12.
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A. The Similarity or Dissimilarity of the Marks
We compare Applicants’ mark HOLY COW! KOSHER and Registrant’s mark
HOLY COW “in their entireties as to appearance, sound, connotation and commercial
impression.” In re Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1908 (quoting du Pont,
177 USPQ at 567). See also Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “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, 668 F.3d 1356, 101 USPQ2d 1713, 1721
(Fed. Cir. 2012) (quotation omitted). Further, marks “‘must be considered … in light
of the fallibility of memory ….’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d
1082, 1085 (Fed. Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs.
Components Corp., 565 F.2d 683, 196 USPQ 1 (CCPA 1977)). The proper focus is on
the recollection of the average purchaser, who normally retains a general rather than
a specific impression of trademarks. In re Binion, 93 USPQ2d 1531 (TTAB 2009);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). “[S]imilarity is not
a binary factor but is a matter of degree.” St. Helena Hosp., 113 USPQ2d at 1085
(quoting In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059 (Fed. Cir. 2003)).
Applicants argue that the differences in the marks in sound and appearance are
sufficient to distinguish them, KOSHER is the dominant element in Applicants’
mark, and the marks have different connotations because HOLY COW! KOSHER
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indicates that unlike Registrant’s products, Applicants’ products are “certified
Kosher,” which consumers would not expect. The Examining Attorney focuses on the
visual, aural, and connotative similarities between the identical wording HOLY
COW, which she contends is the most distinctive portion, and therefore the strongest
source identifying element, of Applicants’ mark.
We find HOLY COW! KOSHER and HOLY COW to be extremely similar.
Applicants’ mark contains Registrant’s mark in its entirety, and adds an exclamation
point and the word KOSHER. Although there is no absolute rule that a likelihood of
confusion is present where an applicant’s mark contains the whole of the registered
mark and additional matter, the fact that Applicants’ mark includes the entirety of
the cited registered mark increases the similarity between the two. See, e.g., Coca-
Cola Bottling Co. of Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc.,
526 F.2d 556, 188 USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for
club soda, quinine water and ginger ale is likely to cause confusion with BENGAL for
gin). The prominence of the term HOLY COW is further enhanced by its placement
at the beginning of Applicants’ mark HOLY COW! KOSHER. See Palm Bay Imps., 73
USPQ2d at 1692; Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897
(TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed
in the mind of a purchaser and remembered”). See also Century 21 Real Estate Corp.
v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon
encountering the marks, consumers must first notice the identical lead word).
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“Holy cow” is a slang interjection “used to express bewilderment, surprise, or
astonishment.”5 There is no evidence that HOLY COW has any significance as
applied to any of the goods identified in the application or registration.6 On the other
hand, “kosher” is highly descriptive, if not generic, of Applicants’ identified goods, all
of which are “certified Kosher,” and appropriately has been disclaimed. See In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997). Descriptive
matter typically is less significant or less dominant when comparing marks. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir.
1985) (the “descriptive component of a mark may be given little weight in reaching a
conclusion on likelihood of confusion”)). See also In re Chatham Int’l Inc., 380 F.3d
1340, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (“Because “ALE has nominal
commercial significance, the Board properly accorded the term less weight in
assessing the similarity of the marks under DuPont. As a generic term, ALE simply
delineates a class of goods.”).
We find that consumers likely will view the term KOSHER in Applicants’ mark
as an indication that the identified products are “certified Kosher,” rather than as a
source-distinguishing element. It is well-settled that marks containing additional
wording may be confusingly similar. Stone Lion Capital Partners, LP v. Lion Capital

5 Dictionary.com Unabridged, based on the Random House Dictionary (2016). Attached to
October 31, 2016 Final Office Action, TSDR p. 2.
6 We discuss below Applicants’ evidence of third-party uses of the individual terms HOLY
and COW for goods similar to those identified in the application and registration.
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LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (STONE LION
CAPITAL incorporated entirety of registered marks LION CAPITAL and LION). The
addition of the word KOSHER in Applicants’ mark does not change the meaning or
commercial impression of the interjection HOLY COW. Cf. In re P. Ferrero & C.S.p.A.,
479 F.2d 1395, 178 USPQ 167 (CCPA 1973) (TIC TAC and TIC TAC TOE); Lever
Bros. Co. v. Barcolene Co., 463 F.2d 1107, 174 USPQ 392 (CCPA 1972) (ALL and ALL
CLEAR); Colgate-Palmolive Co. v. Carter-Wallace, Inc., 432 F.2d 1400, 167 USPQ 529
(CCPA 1970) (PEAK and PEAK PERIOD). Rather, HOLY COW has the same
meaning in both marks in connection with the respective goods, i.e., as an interjection
expressing surprise, and it engenders the same commercial impression in each mark.
In addition, the exclamation point following HOLY COW in Applicants’ mark
underscores the meaning of HOLY COW as an interjection, and thus does not serve
to distinguish the marks. See St. Helena Hosp., 113 USPQ2d at 1085 (TAKETEN and
TAKE 10! engender similar commercial impressions despite addition of exclamation
point); Bond v. Taylor, 119 USPQ2d 1049 (TTAB 2016) (BLACK MEN ROCK
confusingly similar to BLACK GIRLS ROCK!); Cf. In re Promo Ink, 78 USPQ23 1301,
1305 (TTAB 2006) (finding proposed mark merely descriptive, Board stated
punctuation mark in PARTY AT A DISCOUNT! does not significantly change the
commercial impression of the mark); In re Burlington Indus., Inc., 196 USPQ 718,
719 (TTAB 1979) (“[A]n exclamation point does not serve to identify the source of the
goods.”). In fact, recent articles posted on the websites for Inside Philanthropy,7

7 February 23, 2016 article by Alyssa Ochs titled Holy Cow, This Community Foundation is
Exploding. Why is That? discusses the surge in a foundation’s annual grantmaking.
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Chicago Magazine,8 The Seattle Times,9 and CNN Money U.S.10 demonstrate recent
usage of the term HOLY COW as an interjection with and without an exclamation
point.
We further find that purchasers who are familiar with both marks likely would
perceive Applicants’ mark HOLY COW! KOSHER as a subset, product line extension,
or variant of Registrant’s mark HOLY COW, with both marks identifying products
made by HOLY COW. See, e.g., In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271
(TTAB 2009) (holding VANTAGE TITAN for MRI diagnostic apparatus, and TITAN
for medical ultrasound device, likely to cause confusion, noting that the marks are
more similar than they are different and that the addition of applicant’s “product
mark,” VANTAGE, to the registered mark would not avoid confusion).
Finally, Applicants’ standard character mark and Registrant’s typed mark are not
limited to any particular depiction. The rights associated with a standard character

http://www.insidephilanthropy.com/home/2016/2/23/holy-cow-this-community-foundation-is-
exploding-why-is-that_html. Attached to October 31, 2016 Final Office Action, TSDR p. 3-4.
8 December 2015 article by James Hughes titled Holy Cow! Home Alone is 25! Celebrates the
25th anniversary of the movie Home Alone with interviews with some of its main cast and
crew members. http://www.chicagomag.com/Chicago-Magazine/December-2015/Home-
alone/. Attached to October 31, 2016 Final Office Action, TSDR pp. 5-25.
9 September 8, 2016 Associated Press article titled Holy cow! California steer view for world’s
tallest bovine leads with “Holy cow! A giant, 1-ton Holstein steer who loves to eat bread and
romps like a puppy at a Northern California zoo is vying for the title of world’s tallest bovine.”
http://www.seattletimes.com/nation-world/holy-cow-california-steer-vies-for-worlds-tallest-
bovine/. Attached to October 31, 2016 Final Office Action, TSDR pp. 26-28.
10 August 5, 2015 article by Virginia Harrison titled Holy cow! India is the world’s largest beef
exporter leads with “A country where cows are sacred is exporting a record amount of red
meat,” and discusses India’s exportation of large quantities of water buffalo meat.
http://money.cnn.com/2015/08/05/news/economy/india-beef-exports-buffalo/. Attached to
October 31, 2016 Final Office Action, TSDR pp. 29-31.
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mark reside in the wording and not in any particular display. In re RSI Sys., LLC, 88
USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy Prods. Corp., 8 USPQ2d 2012,
2015 (TTAB 1988); TMEP § 1207.01(c)(iii) (October 2017). We must consider
Applicants’ and Registrant’s marks “regardless of font style, size, or color.” Citigroup
Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-59 (Fed.
Cir. 2011), including iterations minimizing the highly descriptive, if not generic, word
KOSHER in Applicants’ mark.
For these reasons, we find that HOLY COW is the dominant and sole distinctive
element in Applicants’ mark HOLY COW! KOSHER. HOLY COW thus is entitled to
more weight in our analysis of these marks. In coming to this conclusion, we do not
ignore the presence of the additional wording or punctuation in Applicants’ mark.
However, for the reasons discussed above, we find that consumers are more likely to
remember the term HOLY COW than the other elements of Applicants’ mark.
While there are some specific differences between the two marks, we find that in
their entireties, Applicants’ mark HOLY COW! KOSHER and Registrant’s mark
HOLY COW are extremely similar in appearance, sound, and connotation due to the
shared term HOLY COW, and they convey similar commercial impressions. The
factor of the similarity of the marks thus favors a finding of likelihood of confusion.
B. The Number and Nature of Similar Marks in Use on Similar Goods
The Federal Circuit has held that evidence of the extensive registration and use
of a term by others can be “powerful” evidence of weakness. Jack Wolfskin Ausrustung
Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
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1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
115 USPQ2d 1671, 1674 (Fed. Cir. 2015). To this end, Applicants contend that the
cited mark HOLY COW deserves only a narrow scope of protection in view of ten
third-party registrations containing the term HOLY and two third-party
registrations containing the term COW for “goods such as meat in International Class
029.”11 However, the third-party registrations have minimal probative value because
none of them includes both HOLY and COW, either separately or, more importantly,
as the unitary interjection HOLY COW. This results in marks that look and sound
different from Registrant’s mark HOLY COW.
The additional matter in each of the registrations arguably provides additional
points of difference as compared to Registrant’s mark. For example, BROWN &
WHITE COW, COWAMONGUS, HOLY LAND (and two other HOLY LAND-
inclusive marks, all owned by one registrant), and HOLY HOTS convey different
commercial impressions than does HOLY COW. The remaining third-party
registrations, all owned by different registrants, are either different plays on the
interjection HOLY COW or plays on other interjections, with additional humorous
meanings specific to their identified goods resulting in different commercial

11 7 TTABVUE 18, referencing Exhibits A and B attached to Applicants’ April 14, 2017
Request for Reconsideration. Each list also includes a number of third-party applications.
There is no evidence that any of the applications ever registered and, in any event, a pending
application is evidence only that the application was filed on a certain date; it is not evidence
of use of the mark. In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016). In addition,
although 17 marks appear on each list, which brings the total to 34 marks, as previously
mentioned, each list includes Applicants’ mark and Registrant’s mark. Further, the third-
party registration for HOLY COCONUT covers coconut oil, body spray, and supplements,
goods that are unrelated to those here at issue.
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impressions from Registrant’s mark: HOLYPENO (beef jerky), HOLY SCHNITZEL
(meats and processed foods including poultry and beef), HOLY SMOKE (smoked olive
oil), HOLY MOLE CHICKEN FRIJOLE (prepared ready-to-eat entrees consisting
primarily of meat), and HOLY POSOLE (soup).
The third-party registrations for different marks do not persuade us that the
interjection HOLY COW “has a normally understood and well-recognized descriptive
or suggestive meaning, leading to the conclusion that the [term] is relatively weak.”
Juice Generation, 115 USPQ2d at 1675 (citation omitted). That is to say, the existence
of the aforementioned third-party registrations does not demonstrate that the
interjection HOLY COW carries a suggestive or descriptive connotation for the
products identified in the application and registration such that we can conclude that
the cited mark is so weak that the public would be able to distinguish the source of
Applicants’ goods from those of Registrant’s by the slight differences in the marks.
We find this factor neutral.
C. Goods and Channels of Trade
With regard to the goods and channels of trade, we must make our determinations
under these factors based on the goods as they are identified in the application and
registration. Dixie Rests., 41 USPQ2d at 1534. See also Stone Lion, 110 USPQ2d at
1161-62; Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001
(Fed. Cir. 2002); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937,
16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
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1. Relatedness of Goods
The second du Pont factor “considers whether the consuming public may perceive
[the respective goods and services of the parties] as related enough to cause confusion
about the source or origin of the goods and services.” St. Helena Hosp., 113 USPQ2d
at 1086 (quoting Hewlett-Packard, 62 USPQ2d at 1004). When analyzing the
relatedness of the goods, “it is not necessary that the products of the parties be similar
or even competitive to support a finding of likelihood of confusion.” Coach Servs., 101
USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB
2007)). See also On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d
1471, 1475 (Fed. Cir. 2000) (The products need not be identical or even competitive
to find a likelihood of confusion). Rather, “likelihood of confusion can be found ‘if the
respective products are related in some manner and/or if the circumstances
surrounding their marketing are such that they could give rise to the mistaken belief
that they emanate from the same source.’” Coach Servs., 101 USPQ2d at 1722
(quoting 7-Eleven, 83 USPQ2d at 1724). The issue is whether there is a likelihood of
confusion as to the source of the goods, not whether purchasers would confuse the
goods. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc.,
223 USPQ 830 (TTAB 1984).
In addition, under this du Pont factor, the Examining Attorney need not prove,
and we need not find, similarity as to each and every product listed in the description
of goods. It is sufficient for a refusal based on likelihood of confusion that relatedness
is established for any item encompassed by the identification of goods in a particular
class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335,
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209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409
(TTAB 2015), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017).
The goods identified in the application include various meat and processed meat
products, all of which are “certified Kosher,” and the registration identifies sandwich
spreads, condiments, spices, and sauces. The goods are related on their face as
complementary products intended to be used and consumed together, and Applicants
do not dispute this relationship.12 Instead, Applicants argue that the goods are not
commercially related because Applicants’ goods are certified Kosher and prepared
under strict rabbinical supervision, while Registrant’s goods are not kosher. However,
we are bound by the identification of goods set forth in the application and
registration. See Dixie Rests., 41 USPQ2d at 1534. The registration is not limited to
kosher or non-kosher items, and therefore encompasses both kosher and non-kosher
sandwich spreads, condiments, spices, and sauces. See In re Jump Designs, LLC, 80
USPQ2d 1370, 1374 (TTAB 2006) (citing In re Elbaum, 211 USPQ 639, 640 (TTAB
1981) (if services are unrestricted and broadly described, they are presumed to
encompass all services of the type described).
In addition, a trademark registration on the Principal Register is prima facie
evidence of the validity of the registration and the registrant’s exclusive right to use
the mark in commerce in connection with the specified goods. 15 U.S.C. § 1057(b).
Consequently, Applicants’ argument that Registrant offers only non-kosher products

12 Applicants’ arguments concerning the differences between the goods mainly focus on meat
and shellfish products that were deleted from the identification of goods in the cited
registration.
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constitutes an impermissible collateral attack on the cited registration, and may not
be considered in an ex parte proceeding. See Dixie Rests., 41 USPQ2d at 1534-35.
The record also confirms the close relationship between the goods identified in the
application and registration. In particular, the Examining Attorney submitted
marketplace evidence that the identified goods are related, and that customers are
accustomed to encountering both types of goods together on the same retail websites.
In particular, she submitted screenshots from the websites of third-parties Sabrett
(sabrett.com) and Nathan’s (nathansfamous.com), both of which sell hot dogs,
sausages, and condiments under their respective marks.13 She also submitted
screenshots from the Rockland Kosher Supermarket (rocklandkosher.com), Shalom
Kosher (theshalomgroup.com), and Aarons Gourmet (aaronsgourmet.com) websites
demonstrating that there are kosher versions of at least some spices, sauces, and
condiments, and they are sold together with kosher meat and processed meat.14 See
Hewlett-Packard, 62 USPQ2d at 1004 (evidence that “a single company sells the
goods and services of both parties, if presented, is relevant to the relatedness
analysis”).
The Examining Attorney also submitted a number of use-based, third-party
registrations from the USPTO’s electronic database which cover meat and processed

13 April 18, 2016 First Office Action, TSDR pp. 41 (Sabrett) and 44 (Nathan’s).
14 October 31, 2016 Final Office Action, TSDR pp. 32-35 (Rockland), 36-38 (Shalom Kosher),
and 39-49 (Aarons Gourmet).
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meat products as well as sauces, spices, and condiments under a single mark.
Representative examples15 are depicted in the following table:
Reg. No. Mark Relevant Goods
Reg. No. 4358459 NEWTON FARMS Various types of chicken
sausage; marinades,
honey mustard, and
chipotle ketchup
Reg. No. 4384574 LYFE KITCHEN LOVE
YOUR FOOD
EVERYDAY
Processed meat, namely
bacon, beef, chicken, ham,
sausage links, and turkey;
fruit sauces, namely,
applesauce and cranberry
sauce, gravies, processed
herbs, spices and
seasonings, cooking
sauces, mayonnaise,
ketchup, mustard, relish,
hot sauce, spices
Reg. No. 4274887 LIPARI LF SINCE 1963 Preserved meats and
sausages, pastrami, beef;
barbeque sauce,
mayonnaise, and mustard
Reg. No. 4568225 ZAXBY’S Cooked chicken;
condiments, namely,
dipping sauce, teriyaki
sauce, barbecue sauce,
honey mustard sauce,
sweet and spicy sauce

Third-party registrations which individually cover a number of different goods
that are based on use in commerce may have some probative value to the extent that
they serve to suggest that the listed goods are of a type which may emanate from the
same source. In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015); In re

15 Attached to April 18, 2016 First Office Action, TSDR pp. 4-6, 7-10, 11-13, and 17-19,
respectively.
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Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). See also In re
Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012); In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993).
Applicants question the probative value of the third-party registrations because
unlike the goods identified in the application, none of the goods identified in the third-
party registrations are limited to kosher products. The absence of such a restriction
does not affect the probative value of this evidence, however, as we presume that the
broadly worded registrations include both kosher and non-kosher products. C.f. Jump
Designs, 80 USPQ2d at 1374 (The cited registrant’s furniture goods were not limited
in any way as to nature, type, use or purpose and, thus, were broad enough to
encompass the type of furniture sold by the applicant). Moreover, in light of the
marketplace evidence from Rockland, Shalom Kosher, and Aarons Gourmet
mentioned above, Applicants’ argument is a red herring.
We find the evidence of record sufficient to establish that meat and processed meat
products and condiments, sauces, and spreads, whether kosher or not, are closely
related in that they are complementary items that routinely are sold and used
together. In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984) (holding MARTIN’S for wheat bran and honey bread, and MARTIN’S
for cheese, likely to cause confusion).
2. Channels of Trade
Considering the channels of trade and classes of purchasers, Applicants argue
that their “certified kosher” products are directed to a very specific market. However,
because there are no limitations as to channels of trade or classes of purchasers in
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either the application or registration, we must presume that the goods identified in
the application and registration travel through all normal and usual trade channels
for such goods and are sold to all classes of prospective purchasers for those goods.
Stone Lion, 110 USPQ2d at 1161. See also Coach Servs., 101 USPQ2d at 1723 (absent
limitation “goods are presumed to travel in all normal channels … for the relevant
goods.”). The ordinary channels of trade for kosher meat and processed meat products
on the one hand, and condiments, spices, and sauces on the other hand, include the
same online and brick and mortar grocery stores of all sizes and varieties. In fact, the
record includes evidence that specialty supermarkets that feature only kosher
products, such as Rockland Kosher Supermarket and Shalom Kosher, also sell
sauces, condiments and meat, and Aarons Gourmet sells various kosher meats and
kosher spices.16
Applicants point to photographs of Applicants’ goods on a grocery store shelf amid
signs that read “kosher” to support their argument that their goods are marketed and
sold in different channels of trade from Registrant’s goods. However, there is no
evidence that Applicants’ goods always are displayed in this manner in all grocery
stores, or that Registrant’s goods are not also displayed in this manner. More
importantly, such evidence, if it existed, would not support a finding that Applicants’
goods and Registrant’s goods move in distinct trade channels. We must assess this
du Pont factor according to the identifications of the respective goods in the

16 Attached to October 31, 2016 Final Office Action, TSDR pp. 32-35 (Rocklands), pp. 36-38
(Shalom Kosher), and pp. 39-49 (Aarons Gourmet).
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application and registration at issue, neither of which is so limited, not on extrinsic
evidence of actual use. See, e.g., Coach Servs., 101 USPQ2d at 1722; Octocom, 16
USPQ2d at 1787.
In view of the foregoing, we find that the goods identified in the application and
registration are closely related complementary products that are sold through the
same channels of trade to the same class of purchasers. These factors weigh in favor
of likely confusion.
D. Purchasing Conditions
Finally, we address Applicants’ contention that their customers are sophisticated.
This argument concerns the fourth du Pont factor, the “conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
du Pont, 177 USPQ at 567. Applicants argue that they target a narrow class of
customers, namely, those who seek premium kosher products. Applicants emphasize
the importance of the kosher standard to those who adhere to a kosher diet, due to
their need for products based on their religious beliefs and cultural identity, and
contend that the sophistication of these consumers mitigates the likelihood of
confusion.
We do not find the record evidence sufficient to establish that the goods identified
in the subject application are expensive and necessarily sold only to discriminating
customers. Even if Applicants target self-selecting purchasers who would only buy
“certified kosher” products, the record does not support a finding that other
purchasers who do not follow such dietary restrictions would not also buy “certified
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kosher products.” Moreover, because there are no limitations in the cited registration,
we presume that Registrant’s goods are available to all potential classes of ordinary
consumers, including those who purchase only “certified kosher products,” and that
kosher products include inexpensive as well as expensive items. See Citigroup, 98
USPQ2d at 1261; In re Integrated Embedded, 120 USPQ2d 1504, 1515 (TTAB 2016).
When relevant consumers include both discerning purchasers and the general public,
precedent requires that we base our decision on the least sophisticated potential
purchasers. Stone Lion, 110 USPQ2d at 1163.
However, even if we were to assume that purchasers of Applicants’ kosher meat
and meat products are discriminating, it is settled that even sophisticated purchasers
are not immune from source confusion, especially where the marks are so similar and
the goods are closely related. See In re Research Trading Corp., 793 F.2d 1276, 230
USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v. Hardman & Holden
Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of
discriminating purchasers … are not infallible.”)).
This du Pont factor is neutral.
III. Conclusion
When we consider the record and the relevant likelihood of confusion factors, and
all of Applicants’ arguments relating thereto, including those arguments not
specifically addressed herein, we conclude that consumers familiar with Registrant’s
sandwich spreads, condiments, spices, and sauces offered under the mark HOLY
COW would be likely to believe, upon encountering Applicants’ mark HOLY COW!
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KOSHER for kosher meat and meat products, that the goods originated with or are
associated with or sponsored by the same entity.
Decision: The refusal to register Applicants’ mark HOLY COW! KOSHER is
AFFIRMED.