Field Fresh Foods, Inc.

Trademark Trial and Appeal Board

Aug 27, 1999

No. 75138629 (T.T.A.B. Aug. 27, 1999)

Paper No. 9
JER
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB AUG. 27,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Field Fresh Foods, Inc.
________
Serial No. 75/138,629
_______
Evan M. Kent and France D. Lemoine of Russ, August & Kabat
for applicant.
Jennifer D. Richard, Trademark Examining Attorney, Law
Office 101 (Christopher Wells, Acting Managing Attorney).
_______
Before Rice, Walters, and Bucher, Administrative Trademark
Judges.
Opinion by Rice, Administrative Trademark Judge:
An intent-to-use application has been filed by Field
Fresh Foods, Inc. to register the mark FIELD FRESH FARMS
(FARMS disclaimed) for fresh pre-cut organic vegetables.1
Registration has been finally refused under Section
2(d) of the Act, 15 U.S.C. §1052(d), on the ground that

1 Application Serial No. 75/138,629, filed July 23, 1996 pursuant
to the provisions of Section 1(b) of the Trademark Act of 1946,
15 U.S.C. §1051(b), based on applicant’s allegation of its bona
fide intention to use the mark in commerce.
Ser. No. 75/138,629
2
applicant’s mark, if used on or in connection with its
specified goods, so resembles the mark FIELD FRESH,
registered on the Supplemental Register for fresh
pineapple, as to be likely to cause confusion, or to cause
mistake, or to deceive.2
Additionally, registration has been refused under
Section 2(e)(1) of the Act, 15 U.S.C. §1052(e)(1), on the
ground that applicant’s mark, if used on or in connection
with fresh pre-cut organic vegetables, is merely
descriptive of them.
Applicant has appealed. Both applicant and the
Examining Attorney have briefed the issues before us. An
oral hearing was not requested.
We turn first to the refusal to register under Section
2(e)(1) of the Act. In support of the refusal, the
Examining Attorney has made of record printouts of portions
of 10 articles, from the NEXIS computerized data base of
publication and newswire information, showing use of the
designation “field fresh” to describe the particular degree
of freshness of produce. Examples of these uses are given
below (emphasis added):
“The Branch Ranch restaurant in Plant City
has been serving fresh vegetables since 1956.

2 Registration No. 1,184,272, issued December 29, 1981; affidavit
Section 8 accepted.
Ser. No. 75/138,629
3
Field-fresh vegetables are its trademark.”—
from a story headlined “Prices Jump Due to
Crop Damage; Frozen Veggies” appearing in the
January 24, 1997 issue of The Ledger
“… Retail Marketing) has announced its summer
locations for selling fresh produce. The
producers harvest daily so their fruits and
vegetables are field fresh.”—from a story
headlined “Smokies Snag a Father-Son Combo $”
appearing in the June 17, 1995 issue of
Knoxville News-Sentinel
“… local producers who have found a lucrative,
new market for their products, as well as
consumers, who are able to buy field-fresh
produce.”—from a story headlined “Store Chains
in Slugfest Over Local Produce; Large ‘Clock’
Tells Shoppers When Next Shipment Arrives”
appearing in the August 25, 1996 issue of
The Buffalo News
“The next time you open a can of Glory black-
eyed peas or field peas and notice how field
fresh and down-home delicious they taste, think
about Irvin Fortune, an African American
farmer in florence [sic], S.C. …”—from a story
headlined “Glory Foods partners with African
American farmers” appearing in the April 9,
1996 issue of Michigan Chronicle
“For those tempted by field-fresh corn and
other local produce, Hicks’ farmstand will be
open in August;…”—from a story headlined
“Bargain Hunter” appearing in the July 25, 1996
Newsday
The Examining Attorney also relies upon the first
definition of the term “farm” appearing in Webster’s II New
Ser. No. 75/138,629
4
College Dictionary (1995).3 That definition reads: “Land
cultivated for agricultural production.”4
A mark is merely descriptive if, as used in connection
with the goods or services in question, it immediately
conveys information about an ingredient, quality,
characteristic, feature, etc. thereof, or if it directly
conveys information regarding the nature, function,
purpose, or use of the goods or services. See In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978);
In re Eden Foods Inc., 24 USPQ2d 1757 (TTAB 1992); and In
re American Screen Process Equipment Co., 175 USPQ 561
(TTAB 1972). In contrast, a mark is suggestive if, when

3 The Examining Attorney first mentioned this definition (and
submitted a copy of the relevant dictionary page) in her brief on
the case. Ordinarily, evidence submitted after appeal is
untimely and will not be considered. See Trademark Rule 2.142,
37 CFR §2.142(d). As the Examining Attorney has noted, however,
it is well settled that the Board may take judicial notice of
dictionary definitions. See In re John Harvey & Sons Ltd., 32
USPQ2d 1451 (TTAB 1994), and cases cited therein. Accordingly,
we have considered the definition cited by the Examining
Attorney.
4 Applicant relies upon the first three definitions of the word
“farm” found in Merriam Webster’s Collegiate Dictionary (10th Ed.
1996), but applicant offers these definitions for purposes of its
arguments relating to the issue of likelihood of confusion, not
the issue of mere descriptiveness. The definitions read: “1
obs: a sum or due fixed in amount and payable at fixed intervals
2: a letting out of revenues or taxes for a fixed sum to one
authorized to collect and retain them 3: a district or division
of a country leased out for the collection of government
revenues”. The fourth definition in this dictionary is “a tract
of land devoted to agricultural purposes”. When applicant’s mark
is considered in relation to applicant’s specified goods, as it
must be, it is clearly this latter significnce which is likely to
be conveyed.
Ser. No. 75/138,629
5
the goods or services in question are encountered bearing
the term, the potential purchaser must use thought,
imagination, perception, and/or a multi-stage reasoning
process to reach a conclusion as to the nature thereof.
See In re Mayer Beaton Corp., 223 USPQ 1347 (TTAB 1984),
and In re Tennis in the Round Inc., 199 USPQ 496 (TTAB
1978). A mark does not have to describe every quality,
feature, purpose, function, etc. of the goods or services
in order to be found merely descriptive; it is sufficient
for the purpose if the mark describes a single significant
quality, feature, function, etc. See In re Venture Lending
Associates, 226 USPQ 285 (TTAB 1985). Further, the
question of whether a mark is merely descriptive must be
determined not in the abstract, that is, not by asking
whether one can guess, from the mark itself, considered in
a vacuum, what the goods or services are, but rather in
relation to the goods or services for which registration is
sought, that is, by asking whether, when the mark is seen
on the goods or services, it immediately conveys
information about their nature. See In re Abcor
Development Corp., supra, and In re American Greetings
Corp., 226 USPQ 365 (TTAB 1985).
Applicant specifically agrees with the Examining
Attorney that the issue of mere descriptiveness must be
Ser. No. 75/138,629
6
determined by considering applicant’s mark in relation to
its specified goods. Nevertheless, applicant argues that
its mark is not merely descriptive because “a consumer
would only be able to identify the genre of the product,
that is, vegetables, by using imagination, thought and
perception.” In the same vein, applicant argues that a
consumer would not know whether the particular fresh item
from the field is manure, a flower, pineapple or a
vegetable.
Applicant misunderstands the test. As noted above,
the test is not whether a consumer can guess what the goods
are from the mark, but rather whether, when the consumer
sees the mark on the goods, it immediately conveys
information about their nature. In view of the evidence
made of record by the Examining Attorney, we have no doubt
that when consumers see applicant’s fresh pre-cut
vegetables bearing the mark FIELD FRESH FARMS, the mark
would immediately convey to them the information that these
vegetables come from a farm and are very fresh, i.e., as
fresh as vegetables recently picked from the field.
Accordingly, we conclude that the mark FIELD FRESH FARMS,
when applied to fresh pre-cut organic vegetables, is merely
descriptive of them.
Ser. No. 75/138,629
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We turn then to the refusal to register under Section
2(d) of the Act. Considering first the goods, applicant’s
applicant’s specified goods are “fresh pre-cut organic
vegetables” and registrant’s are “fresh pineapple.”
Although these goods are specifically different, it is not
necessary that the goods be similar or even competitive in
order to support a finding of likelihood of confusion. It
is sufficient for the purpose that the goods are related in
some manner, and/or that the circumstances surrounding
their marketing are such that they would be likely to be
encountered by the same persons under circumstances that
could, because of the marks used thereon, give rise to the
mistaken belief that they originate from or are in some way
associated with the same source. See Hilson Research Inc.
v. Society for Human Resource Management, 27 USPQ2d 1423
(TTAB 1993). Here, the products specified in applicant’s
application and registrant’s registration are closely
related in that both types of goods are items of fresh
produce that would be sold to the same class of purchasers,
i.e., consumers, through grocery stores and supermarkets,
where they would be displayed in the fresh produce section.
Under the circumstances, we are of the opinion that the
contemporaneous marketing of these goods by different
Ser. No. 75/138,629
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entities under the same or similar marks would be likely to
cause confusion.
Applicant’s argument to the effect that registrant’s
pineapple is a relatively expensive luxury specialty item
from Hawaii, purchased with care by fine food gourmets in
exotic fruit boutiques, is unsupported by any evidence.
Moreover, such evidence, even if of record, would be to no
avail since it is well settled that the issue of likelihood
of confusion in a proceeding such as this must be
determined on the basis of the identification of goods set
forth in the application and cited registration. See In re
Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed.
Cir. 1997); Octocom Systems Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir.
1990); and Canadian Imperial Bank v. Wells Fargo Bank, 811
F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987). It is common
knowledge that fresh pineapple is sold in, inter alia, the
fresh produce section of grocery stores and supermarkets.
In view thereof, and inasmuch as registrant’s
identification in this case contains no restrictions as to
geographic origin, channels of trade, or classes of
purchasers, we must presume that registrant’s goods include
ordinary fresh pineapple sold to ordinary consumers in the
fresh produce section of grocery stores and supermarkets.
Ser. No. 75/138,629
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While fresh pineapple may be somewhat more expensive than
fresh vegetables (again, there is no evidence on this
issue), both types of goods are relatively inexpensive.
Accordingly, we find applicant’s argument that fresh
pineapple is purchased with care by discriminating
consumers unpersuasive.
As to the marks, applicant’s mark FIELD FRESH FARMS
includes registrant’s entire mark FIELD FRESH. Applicant
argues, in effect, that registrant’s mark is weak, and that
the inclusion at the end of its mark of the additional word
FARMS results in differences in the marks in sound,
appearance, and meaning sufficient to preclude likelihood
of confusion. We do not agree. Although registrant’s mark
FIELD FRESH is merely descriptive (and hence weak), and the
registration thereof accordingly issued on the Supplemental
Register, the registration nevertheless serves, under
Section 2(d) of the Act, as a bar to the registration of a
mark which so resembles the registered mark as to be likely
to cause confusion. See Towers v. Advent Software Inc.,
913 F.2d 942, 16 USPQ2d 1039 (Fed. Cir. 1990), and In re
Clorox Co., 578 F.2d 305, 198 USPQ 337 (CCPA 1978). We
believe that applicant’s mark FIELD FRESH FARMS is such a
mark.
Ser. No. 75/138,629
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The words FIELD FRESH appear first in applicant’s
mark, where they are most likely to be noticed and
remembered. Further, the descriptive term FARMS, which
names the physical source of goods such as fresh
agricultural products, is extremely weak in trademark
significance.5 Applicant argues that the marks convey
different meanings because the term FRESH takes on a
different significance when it is followed by the word
FARMS in applicant’s mark, than it has in registrant’s
mark. Specifically, applicant, relying upon dictionary

5 With its brief on the case, applicant submitted the cover
sheet, together with some representative cites found, of a search
done on the Lexis-Nexis system, for trademarks including the word
“farms” in International Class 29. This material was offered to
show that there are 410 such registrations, and thus, in
applicant's words, that the term "farms" is “highly diluted."
Applicant also submitted the cover sheet, and a printout of a
representative sampling of registrations found, of another such
search to show that in 269 registrations of marks containing the
term “farms” in International Class 29, there is a disclaimer of
that term. Applicant argues, at pages 8-9 of its appeal brief,
that disclaimers “are required only when a term is so highly
descriptive as to goods in a certain class that a single entity
cannot be granted exclusive rights therein.” This evidence is
both untimely [Trademark Rule 2.142(d), 37 CFR §2.142(d)] and
insufficient to make the third-party registrations of record [In
re Smith and Mehaffey, 31 USPQ2d 1531 (TTAB 1994)]. However, we
nevertheless agree with applicant’s argument (page 9 of
applicant’s brief) that the term “farms” is weak as applied to
food products.
Applicant’s brief also mentions, for the first time, a third-
party registration assertedly for the mark FIELD FRESH, and a
third-party application assertedly for the mark FIELDFRESH, both
assertedly for food products. As noted by the Examining
Attorney, the registration and application were not made of
record by applicant. Accordingly, we have given them no
consideration in our determination of this case.
Ser. No. 75/138,629
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definitions,6 maintains that in registrant’s mark, the term
FRESH would likely be regarded as meaning “newly or just
come or arrived” to complete the mental image of pineapple
“newly come” from the fields. On the other hand, applicant
believes that its mark suggests superlative quality,
because the term FRESH is placed directly next to the word
FARMS, and the prospective purchaser would therefore
“mentally select the definition of ‘fresh’ most often used
in connection with ‘farms’, namely ‘free from taint’.” The
trouble with this argument is that the NEXIS evidence shows
that the expression FIELD FRESH has a recognized meaning
when it is used in connection with fresh fruits and
vegetables. For that reason, FRESH is likely, even in
applicant’s mark, to be given its recognized meaning as
part of the expression FIELD FRESH. Considered in its
entirety, applicant’s mark suggests that its vegetables
come from a farm and are very fresh, that is, as fresh as
vegetables recently picked from the field. Registrant’s

6 In Merriam Webster’s Collegiate Dictionary (10th Ed. 1996), the
adjective “fresh” is defined as “1 a: having its original
qualities unimpaired: as (1): full of or renewed in vigor:
REFRESHED … (2): not stale, sour, or decayed … (3): not faded …
(4): not worn or rumpled … b: not altered by processing (~
vegetables) 2 a: not salt b (1): free from taint: PURE … (2) of
wind: moderately strong 3 a (1): experienced, made, or received
newly or anew … (2): ADDITIONAL, ANOTHER … b: ORIGINAL, VIVID …
c: lacking experience: RAW d: newly or just come or arrived (~
from school) e: having the milk flow recently established … 4 …:
disposed to take liberties: IMPUDENT.”
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mark likewise conveys the significance that registrant’s
pineapple is very fresh, i.e., as fresh as produce recently
picked from the field.
Because of the similarities in the marks, the weakness
of the term FARMS in applicant’s mark, its placement as the
final word of the mark, the relatively inexpensive nature
of the goods, their closely related nature, their similar
sales environment, and the fact that they are sold to
ordinary consumers, we conclude that confusion is likely to
result from the contemporaneous use by applicant and
registrant of their respective marks on their specified
goods. We are of the opinion that customers who encounter
applicant’s FIELD FRESH FARMS fresh pre-cut organic
vegetables in the fresh produce section of their grocery
store on one shopping expedition, and then encounter
registrant’s FIELD FRESH fresh pineapple on a later
expedition, or vice versa, are likely to believe that it is
the same mark, or, if they remember the difference in the
marks, to assume that the marks are simply slight
variations of one another used by a single source.
Accordingly, we find that the refusal to register under
Section 2(d) of the Act is well taken.
Ser. No. 75/138,629
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Decision: The refusal to register is affirmed on both
grounds.
J. E. Rice
C. E. Walters
D. E. Bucher
Administrative Trademark
Judges, Trademark Trial
And Appeal Board
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