No. 86789517 (T.T.A.B. Sep. 28, 2017)

Farmbox Greens LLC

Trademark Trial and Appeal BoardSep 28, 2017

No. 86789517 (T.T.A.B. Sep. 28, 2017)

Mailed: September 28, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Farmbox Greens LLC _____ Serial No. 86789517 _____ Mark W. Hendricksen of Wells St. John P.S. for Farmbox Greens LLC. Amer Raja, Trademark Examining Attorney, Law Office 121, Kevin Mittler, Managing Attorney. _____ Before Ritchie, Wolfson and Masiello, Administrative Trademark Judges. Opinion by Wolfson, Administrative Trademark Judge: Farmbox Greens LLC (“Applicant”) seeks registration on the Principal Register of the mark depicted below for “Fresh microgreens; Fresh vegetables” in International Class 31.1 1 Application Serial No. 86789517 was filed on October 15, 2015, under Section 1(a) of the Trademark Act, 15 U.S.C. §1051(a), based on Applicant’s allegations of first use of the mark on March 1, 2012 and first use of the mark in commerce on March 10, 2012. The application includes a disclaimer to the exclusive right to use “GREENS” apart from the mark as shown. This Opinion is not a Precedent of the TTAB Serial No. 86789517 - 2 - The Trademark Examining Attorney has refused registration of Applicant’s mark under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on Reg. No. 4380241 for the mark FARM BOX (in standard characters) for “On-line retail store services featuring fruits and vegetables; Retail store services featuring fruits and vegetables” in International Class 35.2 After the Trademark Examining Attorney made the refusal final, Applicant appealed to this Board. We affirm the refusal to register. Likelihood of Confusion Our determination of the issue of likelihood of confusion 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 1357, 177 USPQ 563 (CCPA 1973); see also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (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 2 Registered on the Principal Register on August 6, 2013. The registration includes a disclaimer to the exclusive right to use “FARM” apart from the mark as shown. Serial No. 86789517 - 3 - any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods 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 services] and differences in the marks.”); see also In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015). A. The Similarity or Dissimilarity of the Marks. We turn first 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, 177 USPQ at 567. “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) (quoting Leading Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1905 (TTAB 2007); see also San Fernando Elec. Mfg. Co. v. JFD Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks. Geigy Chem. Serial No. 86789517 - 4 - Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012). Here, the average purchaser of Applicant’s goods is an ordinary consumer interested in a diet that includes fresh microgreens and fresh vegetables, while the ordinary consumer of fruits and vegetables is also the average consumer of Registrant’s retail services. Applicant is seeking to register the mark FARMBOX GREENS and design. The mark is stylized; the word FARMBOX appears in large letters above the word GREENS and both words are enclosed within a rectangular frame with rounded edges. The mark in the cited registration is the standard character mark FARM BOX. We are mindful of the fact that, because the similarity or dissimilarity of the marks is determined based on the marks in their entireties, the analysis cannot be predicated on dissecting the marks into their various components. That is, the decision must be based on the entire marks, not just part of the marks. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). See also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion”). On the other hand, 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 a consideration of the marks in their entireties. In re National Data Corp., 224 USPQ at 751. In considering Applicant’s mark as a whole, we find Serial No. 86789517 - 5 - the term FARMBOX to be its dominant element because of the larger size of the term FARMBOX in the mark, compared with the term GREENS, as well as the fact that the term FARMBOX is the first word of the mark. See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers will first notice the identical lead word); Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered”).3 Further reinforcing its dominant position is the fact that the term FARMBOX has not been shown to have a descriptive connotation as applied to the goods; it is at worst suggestive, whereas GREENS, which Applicant has disclaimed, is generic for the goods. The term GREENS is defined by the Collins English dictionary as: “(cookery) the edible leaves and stems of certain plants, eaten as a vegetable,” giving the 3 The term FARMBOX and the composite term FARM BOX are essentially the same; the presence or absence of a space between the words is not a significant difference. See, e.g., In re A La Vieille Russie Inc., 60 USPQ2d 1895, 1897 n. 2 (TTAB 2001) (“the compound term RUSSIANART is as merely descriptive as its constituent words, ‘Russian Art’”); 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”). Serial No. 86789517 - 6 - example: “You must eat your greens.”4 Likewise, the Cambridge American English dictionary defines “greens” as “the leaves of green vegetables such as lettuce or spinach when eaten as food.”5 Because GREENS is generic for the goods, the word does not identify the source of the goods and has virtually no role in distinguishing Applicant’s mark from the cited registration. See Swatch AG (Swatch SA) (Swatch Ltd.) v. M. Z. Berger & Co., Inc., 108 USPQ2d 1463, 1470 (TTAB 2013), appeal dismissed in part, 559 Fed. Appx. 1009 (Fed. Cir. 2014) and aff'd, 787 F.3d 1368, 114 USPQ2d 1892 (Fed. Cir. 2015) (“It is well-settled that descriptive or generic matter may have little or no significance in likelihood of confusion determinations, and the fact that this generic root [WATCH] is common to the parties’ marks does not render them similar.”); see also Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816 (TTAB 2015) (additional generic word WINE in mark WINEBUD insufficient to distinguish it from Opposer’s BUD mark); Uncle Ben’s Inc. v. Stubenberg Int’l Inc., 47 USPQ2d 1310, 1312 (TTAB 1998) (generic term BREAD “does little to distinguish” the marks UNCLE BEN’S and BEN’S BREAD); cf. Cunningham v. Laser Golf Corp., 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has 4 At www.collinsdictionary.com/dictionary/english/greens, February 9, 2016 Office Action, TSDR 10. 5 At dictionary.cambridge.org/us/dictionary/English/greens, February 9, 2016 Office Action, TSDR 11. We take judicial notice that the meaning of the term “micro” is “very small” or “involving minute quantities or variations”; the term “microgreens” thus refers to small greens or small quantities of greens. At https://www.merriam-webster.com/dictionary/micro, accessed September 27, 2017. The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). Serial No. 86789517 - 7 - noted that the ‘descriptive component of a mark may be given little weight in reaching a conclusion on the likelihood of confusion.’”) (quoting In re Nat’l Data Corp., 224 USPQ at 752). Likewise, the simple rectangular carrier design is clearly subordinate to the wording FARMBOX GREENS that comprises the literal portion of Applicant’s mark. The design is an ordinary geometric shape that serves as a background for the word mark. See, e.g., B.V.D. Licensing Corp. v. Rodriguez, 83 USPQ2d 1500, 1508 n.23 (TTAB 2007) (“plain geometric designs” are not seen by consumers as particularly distinctive); In re Benetton Grp. S.p.A., 48 USPQ2d 1214, 1215-16 (TTAB 1998) (“In particular, common geometric shapes such as circles, squares, rectangles, triangles and ovals, when used as backgrounds for the display of word marks, are not regarded as trademarks for the goods to which they are applied absent evidence of distinctiveness of the background design alone.”). In any event, when a mark comprises both a word and a design, the word is normally accorded greater weight because it would be used by purchasers to request the goods or services. See In re Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987). For these reasons, consumers are more likely to focus on the word FARMBOX in Applicant’s mark when comparing it to Registrant’s mark. Moreover, because the registered mark is in standard characters, it may be depicted in any font style, color or size, including that in which the term FARMBOX is displayed in Applicant’s mark. Trademark Rule 2.52(a), 37 CFR § 2.52(a); In re RSI Systems, LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy Products Corp., 8 USPQ2d 2012, 2015 (TTAB Serial No. 86789517 - 8 - 1988). Given the shared term in the marks, and the fact that this term is the dominant term in Applicant’s mark and the entirety of Registrant’s mark, we find them similar in appearance, pronunciation, connotation and overall commercial impression. While there is no explicit rule that likelihood of confusion automatically applies where an applicant’s mark contains in part the whole of another mark, the fact that a cited registered mark is subsumed by an applicant’s mark increases the similarity between the two. In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1090 (TTAB 2016); see also In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (applicant’s mark VANTAGE TITAN for medical magnetic resonance imaging diagnostic apparatus confusingly similar to TITAN for medical ultrasound diagnostic apparatus); In re El Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988) (applicant’s mark MACHO COMBOS for food items confusingly similar to MACHO for restaurant entrees). Finally, there is no evidence in the record, nor did Applicant argue, that the term FARM BOX in the cited registration has been weakened or diluted as a source identifier by third-party uses or registrations of marks for retail store services. Cf. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (“evidence of third-party use of similar marks on similar goods ‘can show that customers have been educated to distinguish between different marks on the basis of minute distinctions.”’) (quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015)). Although Applicant mentions Reg. No. 4774280 Serial No. 86789517 - 9 - in its brief (allegedly for the mark FARM BOX for beer), the registration has not properly been made of record, but even if it had been, our decision would not change as a result. The existence of a single registration for an unrelated product is of no probative value in demonstrating that a mark is weak or diluted. When considered in their entireties, the marks and FARM BOX are quite similar, and this du Pont factor strongly supports a finding of a likelihood of confusion. B. The Relatedness of the Goods and Services and their Channels of Trade We turn next to a comparison of Applicant’s goods with Registrant’s services. In making our determination under the second du Pont factor, we look to the goods and services as identified in the involved application and cited registration. We also make our determination regarding the channels of trade and classes of purchasers based on the goods and services as they are identified in the application and registration, respectively. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys. Inc. v. Houston Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 17893, 1787 (Fed. Cir. 1990). See also Hewlett- Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). It has often been recognized that likelihood of confusion may arise where confusingly similar marks are used on goods, on the one hand, and in connection with sales of such goods, on the other. In re House Beer, LLC, 114 USPQ2d 1073, 1078 (TTAB 2015); In re Wet Seal, Inc. v. FD Management, Inc., 82 USPQ2d 1629, 1640 (TTAB 2006); J. Thomas McCarthy, TRADEMARKS AND UNFAIR COMPETITION § 24:25 (4th ed. 2014). As our primary reviewing court has noted, “trademarks for goods find Serial No. 86789517 - 10 - their principal use in connection with selling the goods” and accordingly marks for goods and marks for the service of selling such goods will have their impact on the purchasing public in the same marketplace. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988). In this case, the marks are confusingly similar and the goods and services at issue are commonplace goods and services with which most consumers would be familiar. The Examining Attorney has submitted evidence in support of a finding that the goods and services are related. For example, copies of pages from the Giant grocery store chain’s website show that Giant offers “Our Own Brand Produce,” including fresh vegetables under its house mark GIANT:6 At another online store operating under the service mark FRESHDIRECT, Fresh Direct, LLC offers fresh, ready-prepared vegetables, such as broccoli, as well as packaged, microwavable, vegetables under the brand name FRESHDIRECT.7 6 At http://www.peapod.com/shop/index.jhtml*!/pages/own_brand, attached to August 24, 2016 Office Action, TSDR 38. 7 At https://www.freshdirect.com, attached to August 24, 2016 Office Action, TSDR 13-28. Serial No. 86789517 - 11 - The Examining Attorney also introduced copies of third-party registrations for marks that include, in their list of goods and services, fresh vegetables and services related to fresh vegetables, such as distributorship, delivery, and retail and online retail store services. For example, • Reg. No. 3917191 for the mark for “organic fresh fruits and vegetables” in International Class 31; “wholesale distributorships featuring organic foods, fruits and vegetables; retail store services featuring organic foods, fruits and vegetables” in International Class 35; and “delivery of goods, namely, organic fruits and vegetables in International Class 39.8 • Reg. No. 4570972 for the mark SHILOH FARMS for, inter alia, “fresh bean sprouts; fresh beans; fresh peas” in International Class 31 and “on-line retail store services featuring a wide variety of prepared and raw food products; retail markets featuring a wide variety of prepared and raw food products; retail store services featuring green and eco- friendly products in the nature of various prepared and raw food products” in International Class 35.9 • Reg. No. 4793048 for the mark GREAT EAST BUTCHER CO. for, inter alia, “fresh fruit and vegetables” in 8 Registered February 8, 2011; a Sections 8 and 15 combined declaration has been accepted and acknowledged. Attached to February 9, 2016 Office Action, TSDR 15-7. 9 Registered July 22, 2014. Attached to February 9, 2016 Office Action, TSDR 21-5. Serial No. 86789517 - 12 - International Class 31 and “butcher shops; retail grocery stores” in International Class 35.10 Third-party registrations which individually cover a number of different items and which are based on use in commerce may have some probative value to the extent that they serve to suggest that the listed goods and/or services are of a type which may emanate from a single source. See In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.6 (TTAB 2015); See also In re RiseSmart Inc., 104 USPQ2d 1931, 1934-1935 (TTAB 2012); In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); and In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). The evidence is sufficient to persuade us that consumers commonly encounter fresh vegetables at retail store services featuring vegetables and online through the same channels of trade and under the same mark. If customers were to encounter fresh microgreens and fresh vegetables under a mark that is confusingly similar to the mark of a brick-and-mortar or online retail store that features fruits and vegetables, they would likely believe the products and the services are related. Consumers would be likely to mistakenly believe that Applicant’s “fresh microgreens; fresh vegetables” sold under the mark FARMBOX GREENS emanate from the same source as Registrant’s FARM BOX retail outlets “featuring fruits and vegetables.” See, e.g., In re United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985) (finding CAREER IMAGE for women’s clothing stores and women’s clothing likely to cause confusion with CREST CAREER IMAGES for uniforms including items of women’s clothing); House Beer, 114 USPQ2d at 1078 (beer and retail store services featuring 10 Registered August 18, 2015. Attached to February 9, 2016 Office Action, TSDR 32-4. Serial No. 86789517 - 13 - beer, related); Saks & Co. v. TFM Industries Inc., 5 USPQ2d 1762, 1764 (TTAB 1987) (women’s sportswear and retail department store and mail order services, related). Accordingly, we find that the du Pont factors of the similarity or dissimilarity of the goods and services and their trade channels favor a finding of likelihood of confusion. Summary We have considered all of the arguments and evidence of record as they pertain to the du Pont likelihood of confusion factors. To the extent that any other du Pont factors for which no evidence was presented by Applicant or the Examining Attorney may nonetheless be applicable, we treat them as neutral. In light of the foregoing, we conclude that consumers familiar with Registrant’s retail and online store services featuring fruits and vegetables, offered under the mark FARM BOX, would be likely to believe, upon encountering Applicant’s “fresh microgreens; fresh vegetables” offered under its mark that the goods and services originated with, are associated with, or are sponsored by the same entity. Decision: The refusal to register is affirmed.