Food Processing Equipment Co.

Trademark Trial and Appeal Board

May 7, 2003

No. 75909666 (T.T.A.B. May. 7, 2003)

Hearing: Mailed:
March 4, 2003 May 7, 2003
Bottorff
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Food Processing Equipment Co.
________
Serial No. 75/909,661
Serial No. 75/909,662
Serial No. 75/909,664
Serial No. 75/909,666
Serial No. 75/909,667
Serial No. 75/909,668
Serial No. 75/917,250
_______
Ronald P. Kananen of Rader, Fishman & Grauer, PLLC for Food
Processing Equipment Co.
Mary Boagni, Trademark Examining Attorney, Law Office 114
(K. Margaret Le, Managing Attorney).
_______
Before Cissel, Seeherman and Bottorff, Administrative
Trademark Judges.
Opinion by Bottorff, Administrative Trademark Judge:
Applicant has appealed the Trademark Examining
Attorney’s final refusals of registration in the seven
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. Nos. 75/909,661, et al.
2
above-captioned applications. Because each of the appeals
involves the same refusals and common issues of law and
fact, the appeals have been consolidated. A single oral
hearing was held, and we shall decide all of the appeals in
this single opinion.
Applicant’s seven applications (all of which are based
on intent-to-use) are summarized as follows:
- Serial No. 75/909,661, for registration of the mark
MEGA TUMBLER (in typed form, TUMBLER disclaimed) for “food
processing machines, namely machines for tumbling meat and
chicken products during manufacturing in order to blend,
cure, treat, massage, chill, freeze and/or process the meat
and chicken parts,” in Class 7;
- Serial No. 75/909,662, for registration of the mark
MEGA SYSTEMS (in typed form, SYSTEMS disclaimed) for “food
processing machines, namely machines for blending meat and
chicken food products; machines for processing meat,
poultry and pet food; and machines for blending, mixing,
massaging and handling meat, poultry and pet food,” in
Class 7, and “food processing machines, namely machines for
chilling and freezing meat, poultry and pet food; chilling
and freezing machines used in food processing which mix,
Ser. Nos. 75/909,661, et al.
3
blend, and massage meat, poultry, and pet food,” in Class
11;1
- Serial No. 75/909,664, for registration of the mark
MEGA LIFT (in typed form, LIFT disclaimed) for “food
processing machines, namely power operated lifts for moving
food products, namely meat, poultry and pet food, during
manufacturing,” in Class 7;
- Serial No. 75/909,666, for registration of the mark
MEGA METERING SYSTEM (in typed form, METERING SYSTEM
disclaimed) for “food processing machines, namely machines
for conveying food products, namely, meat, poultry and dog
food during processing,” in Class 7, and “food processing
machines, namely machines for measuring and weighing food
products, namely meat, poultry and dog food during
processing; food processing machines, namely a measuring
and weighing machine for meat, poultry and dog food which
features a conveyor,” in Class 9;2
1 This amended identification of goods was suggested/required by
the Trademark Examining Attorney in her final Office action.
Applicant adopted the amended identification of goods in its
appeal brief, and the amendment was accepted by the Trademark
Examining Attorney during the oral hearing. The Board has
entered the amendment, and applicant’s attorney’s deposit account
shall be charged the application filing fee for the additional
class.
2 This amended identification of goods was suggested/required by
the Trademark Examining Attorney in her final Office action. At
the oral hearing, applicant agreed to adopt the amendment and the
Trademark Examining Attorney indicated that she would accept the
Ser. Nos. 75/909,661, et al.
4
- Serial No. 75/909,667, for registration of the mark
MEGA MEAT PRESS (in typed form, MEAT PRESS disclaimed) for
“food processing machines, namely machines for pressing
meat and poultry, during manufacture,” in Class 7;
- Serial No. 75/909,668, for registration of the mark
MEGA DUMPER (in typed form, DUMPER disclaimed) for “food
processing machines, namely pivotable machines for
transporting, loading, and unloading meat and chicken
products to or from other food processing machines during
manufacturing in order to blend, cure, treat, massage,
chill, freeze and/or process the meat and chicken
products,” in Class 7; and
- Serial No. 75/917,250, for registration of the mark
MEGACOOKER (in typed form) for “food processing machines,
namely machines for cooking meat, poultry and pet food,” in
Class 7.
In each of the seven applications, the Trademark
Examining Attorney has issued two refusals to register
under Trademark Act Section 2(d), 15 U.S.C. §1052(d). The
Section 2(d) refusals in each of the applications are based
on the following two registrations (which are owned by
amendment. After oral hearing, applicant filed a paper
requesting entry of the amendment. The Board has entered the
amendment, and applicant’s attorney’s deposit account shall be
charged the application filing fee for the additional class.
Ser. Nos. 75/909,661, et al.
5
different registrants): Registration No. 2,150,050, of the
mark MEGGA (in typed form) for “machine for loading eggs
into egg trays in the nature of flats and into cartons,” in
Class 7;3 and Registration No. 2,245,284, of the mark MEGA
SERIES (in typed form, with a disclaimer of SERIES) for
“food machinery for commercial manufacture of corn
products, pizzas, tortillas and tortilla chips,” in Class
7.4
After careful consideration of the evidence of record
and the arguments of counsel, and for the reasons discussed
below, we affirm the Section 2(d) refusal in each of the
seven applications as to Registration No. 2,245,284 (the
MEGA SERIES mark), but we reverse the Section 2(d) refusal
in each of the seven applications as to Registration No.
2,150,050 (the MEGGA mark).
We turn first to the Section 2(d) refusals based on
the previously-registered MEGA SERIES mark for “food
machinery for commercial manufacture of corn products,
pizzas, tortillas and tortilla chips.” Our likelihood of
confusion determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
3 Issued on April 14, 1998, pursuant to Trademark Act Section 44,
15 U.S.C. §1126.
4 Issued on May 18, 1999.
Ser. Nos. 75/909,661, et al.
6
relevant to the likelihood of confusion factors set forth
in In re E.I. du Pont de Nemours and Co., 476 F.2d 1357,
177 USPQ 563 (CCPA 1973). In considering the evidence of
record on these factors, we keep in mind that “[t]he
fundamental inquiry mandated by §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).
As to each of applicant’s applications, we must
determine whether applicant’s mark and the cited registered
mark, when compared in their entireties in terms of
appearance, sound and connotation, are similar or
dissimilar in their overall commercial impressions. 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 terms of their
overall commercial impression that confusion as to the
source of the goods 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. See Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Furthermore, although the marks at issue must be considered
Ser. Nos. 75/909,661, et al.
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in their entireties, it is well-settled that one feature of
a mark may be more significant than another, and it is not
improper to give more weight to this dominant feature in
determining the commercial impression created by the mark.
See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749
(Fed. Cir. 1985).
Initially, we find that the word MEGA is the dominant
feature in registrant’s MEGA SERIES mark and in each of
applicant’s seven marks, i.e., MEGA TUMBLER, MEGA SYSTEMS,
MEGA LIFT, MEGA METERING SYSTEM, MEGA MEAT PRESS, MEGA
DUMPER and MEGACOOKER. MEGA, although perhaps slightly
laudatory, nonetheless is a suggestive and therefore
inherently distinctive term as applied to the goods at
issue here. The other wording in each of these marks is
descriptive or generic matter which would have little or no
source-indicating significance to purchasers, and it
therefore is entitled to less weight in our comparison of
the marks’ respective commercial impressions.
For example, purchasers are likely to view the term
MEAT PRESS in applicant’s MEGA MEAT PRESS mark not as a
source indicator but merely as an indication that the goods
sold under the mark are meat presses. The same is true for
the generic words LIFT, METERING SYSTEM, TUMBLER, DUMPER
and COOKER in applicant’s other marks; in each case, these
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words function more as a means of indicating the nature of
the goods themselves than as a means by which purchasers
would identify and distinguish the source of the goods.
Purchasers will look primarily, if not exclusively, to the
term MEGA in each of these marks in order to identify and
distinguish the source of these goods.
Similarly, the word SYSTEMS in applicant’s MEGA
SYSTEMS mark, and the word SERIES in the cited MEGA SERIES
mark, have less source-indicating significance than does
the word MEGA in each mark. The word SYSTEMS in
applicant’s MEGA SYSTEMS mark primarily informs purchasers
that applicant’s food processing machinery sold under the
mark functions as, or as part of, a system. Purchasers
will look to and rely on the word MEGA in their efforts to
ascertain the source of the goods comprising that system.
Likewise, the word SERIES in the cited MEGA SERIES mark
primarily informs purchasers that the food processing
machinery sold under the mark comprises, or is part of, a
series of such goods, and they will look to and rely on the
term MEGA to ascertain the source of such series of goods.
Thus, we find that the word MEGA is the dominant
feature in each of the marks at issue here. Although we do
not disregard the other, disclaimed matter in each of the
marks, for the reasons discussed above we find that such
Ser. Nos. 75/909,661, et al.
9
matter is entitled to relatively less weight in our
comparison of applicant’s marks and the cited registered
mark. See In re National Data Corp., supra.
Comparing applicant’s marks to the cited registered
mark in terms of appearance, sound, and meaning, we find
that applicant’s marks are identical to the cited
registered mark to the extent that MEGA appears in the
marks. The marks as a whole are not identical due to the
differences in the descriptive or generic wording
comprising the remainders of each mark, but we find that
they nonetheless are more similar than dissimilar when
compared in their entireties. The similarity between the
marks which results from the presence and dominance in each
mark of the term MEGA outweighs any dissimilarities between
the marks which result from the different descriptive or
generic matter in each mark.
Purchasers encountering these marks on similar or
related goods are likely to assume that MEGA TUMBLER, MEGA
SYSTEMS, MEGA LIFT, MEGA METERING SYSTEM, MEGA MEAT PRESS,
MEGA DUMPER and MEGACOOKER are all members of a MEGA SERIES
family of marks owned and used by a single source.
Similarly and alternatively, applicant contends in its
appeal briefs in each of the applications that it “uses a
plurality of MEGA-formed compound marks as part of its MEGA
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SYSTEMS marks.” Thus, applicant anticipates that its
various marks would be perceived by purchasers as a family
of MEGA-formative marks for food processing machines; we
find that purchasers likewise would assume that the MEGA
SERIES mark, if used on similar or related goods, is part
of that same family of marks.
In summary, we find that each of applicant’s marks is
similar rather than dissimilar to the cited registered mark
MEGA SERIES. This similarity of the marks weighs in favor
of a finding of likelihood of confusion.
We turn next to a comparison of applicant’s and
registrant’s goods. It is not necessary that the
respective goods be identical or even competitive in order
to support a finding of likelihood of confusion. Rather,
it is sufficient that the goods are related in some manner,
or that the circumstances surrounding their marketing are
such, that they would be likely to be encountered by the
same persons in situations that would give rise, because of
the marks used thereon, to a mistaken belief that they
originate from or are in some way associated with the same
source or that there is an association or connection
between the sources of the respective goods. See In re
Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d
Ser. Nos. 75/909,661, et al.
11
1386 (TTAB 1991); In re International Telephone & Telegraph
Corp., 197 USPQ2d 910 (TTAB 1978).
Applying these principles in the present case, we find
that the goods identified in applicant’s applications and
the goods identified in the cited registration are
sufficiently related that source confusion is likely to
result from use thereon of the confusingly similar marks
involved here. Applicant’s food processing machinery is
used in connection with processing meat, poultry and pet
food, while registrant’s machinery is used in connection
with processing corn products, including snack foods like
tortilla chips. Despite these differences in function and
application, however, applicant’s and registrant’s
respective types of food processing machinery are related,
for purposes of our likelihood of confusion analysis,
because the record shows that they are types of machinery
that may be manufactured and sold by a single source under
a single mark.
For example, the record shows that an apparent
competitor of applicant’s, Urschel Laboratories,
manufactures and sells food processing machinery for a
variety of food manufacturing applications, including
“meat, poultry and fish” and “pet food” applications like
Ser. Nos. 75/909,661, et al.
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those to which applicant’s machinery is directed, as well
as “snack food” applications like those to which
registrant’s machinery is directed (e.g., tortilla chips).
Similarly, another manufacturer, Mech-Food, manufactures
food processing machinery for a variety of applications,
specifically including “snack food and confectionery
machinery” and “meat and poultry processing machinery.”5
More generally, the third-party registration evidence made
of record by the Trademark Examining Attorney suggests,
contrary to applicant’s contention, that manufacturers of
food processing machinery do not limit themselves to
manufacture of machinery for a single application or type
of food. Rather, there are manufacturers who, like
applicant, manufacture and sell machinery for processing
meat products, yet also sell, under the same mark, food
processing machinery used in manufacturing other types of
foods as well.6
5 See the Web page advertisements of Urschel Laboratories and
Mech-Food, attached to the Trademark Examining Attorney’s final
Office actions in several of the applications.
6 See, e.g., Registration Nos. 2,104,918, 1,949,955, 1,519,535,
2,508,137, 2,496,619, 765,025, 2,025,285, 2,039,679, 1,171,948
and 396,846, all of which are included among the third-party
registrations attached to the Trademark Examining Attorney’s
final Office actions in the various applications. Although these
registrations are not evidence that the marks shown therein are
in commercial use, or that the public is familiar with them, they
nevertheless are probative evidence to the extent that they
suggest that the goods or services identified therein are of a
Ser. Nos. 75/909,661, et al.
13
Given this industry practice, it is not dispositive
that applicant itself might not manufacture or sell
registrant’s type of machinery, or that registrant itself
might not manufacture or sell applicant’s type of
machinery. Purchasers aware of the fact that these
respective types of machinery can originate from a single
source under a single mark are likely to assume, upon
encountering applicant’s and registrant’s machinery bearing
the confusingly similar marks at issue here, that such
machinery originates from a single source.
Based on the evidence discussed above, we find that
the goods identified in applicant’s respective applications
are similar and related to the goods identified in the
cited registration. This similarity and relatedness of the
goods weighs in favor of a finding of likelihood of
confusion.
We also find that applicant’s and registrant’s
respective types of goods are marketed in the same trade
channels and to the same classes of purchasers. The Web
page advertisements from Urschel Laboratories and Mech-
Food, discussed above, show that both types of machinery
type which may emanate from a single source under a single mark.
See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86
(TTAB 1993); In re Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467
(TTAB 1988).
Ser. Nos. 75/909,661, et al.
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are marketed together. It stands to reason that any large
food manufacturing concern, to the extent that it
manufactures both meat and poultry food products as well as
food products derived from corn, would be a potential
purchaser of both applicant’s and registrant’s types of
food processing machinery. At the oral hearing in this
case, applicant’s counsel conceded that Tyson Foods,
apparently a major purchaser of applicant’s meat and
poultry processing machinery, is likely also to be a
purchaser of corn product processing machinery like
registrant’s. This similarity of trade channels and
classes of purchasers weighs in favor of a finding of
likelihood of confusion.
Applicant contends, however, that the food processing
machinery involved in this case is expensive and purchased
with care by sophisticated purchasers. Even assuming that
this is so (and the record is silent on this point), we
find that although such purchaser care and sophistication
would weigh in applicant’s favor, it does not weigh so
heavily as to overcome the other du Pont factors which
support a finding of likelihood of confusion. We cannot
conclude on this record that purchasers would be immune to
source confusion resulting from the relatedness of the
Ser. Nos. 75/909,661, et al.
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respective goods and the strong similarity of the marks.
Applicant also contends that there have been no
instances of actual confusion between applicant’s marks and
registrant’s mark despite two years’ contemporaneous use.7
However, we find that the probative value of this apparent
absence of actual confusion is negated by the absence of
evidence from which we can conclude that a substantial
opportunity for actual confusion has presented itself in
the marketplace. There is no evidence as to the scope or
extent of applicant’s or registrant’s use of the respective
marks, as to applicant’s or registrant’s respective market
shares, or as to whether applicant and registrant actually
sell in the same geographic areas. On this record, we
cannot conclude that an absence of actual confusion is
either factually surprising or legally significant. See
Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768 (TTAB
1992). We therefore accord the apparent absence of actual
confusion only slight weight in applicant’s favor in our
7 In some of the applications, applicant argues that there has
been four years’ contemporaneous use without actual confusion.
We note that, as originally filed, each of the seven applications
was based both on a claim of use in commerce (with a particular
date of first use alleged) and on a claim of bona fide intent to
use. In its response to the first Office action in each of the
applications, applicant requested that the claim of use be
deleted and that the application proceed on the basis of intent-
to-use.
Ser. Nos. 75/909,661, et al.
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likelihood of confusion analysis.
Having carefully considered all of the evidence of
record as it pertains to the du Pont evidentiary factors,
we conclude that each of applicant’s marks, as applied to
the goods identified in the respective applications, so
resembles the previously-registered mark MEGA SERIES as to
be likely to cause confusion, to cause mistake, or to
deceive. We have carefully considered applicant’s
arguments to the contrary, including any arguments not
specifically discussed in this opinion, but we are not
persuaded of a different result. Any doubts as to the
correctness of our decision must be resolved against
applicant. See In re Hyper Shoppes (Ohio) Inc., 837 F.2d
840, 6 USPQ2d 1025 (Fed. Cir. 1988); In re Martin’s Famous
Pastry Shoppe, Inc., supra.
However, we reverse the Trademark Examining Attorney’s
other Section 2(d) refusal, in each of the applications,
based on the previously-registered mark MEGGA for “machine
for loading eggs into egg trays in the nature of flats and
into cartons.” We find that the evidence of record is
insufficient to establish the requisite relationship
between the egg handling machinery identified in this
registration and any of the goods identified in applicant’s
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applications.8 More importantly, we find that the
registered mark MEGGA is too dissimilar to applicant’s
marks to support a finding of likelihood of confusion.
MEGGA is phonetically identical to the MEGA portion of each
of applicant’s marks, but the marks are sufficiently
dissimilar in connotation and overall commercial impression
that no confusion is likely. The embedded “EGG” in the
registered mark gives that mark a somewhat unique and
whimsical commercial impression, as applied to the
registrant’s goods, which suffices to distinguish the
registered mark from any of applicant’s marks.
Decision: In each of the seven above-captioned
applications, the Section 2(d) refusal based on
Registration No. 2,150,050 (the MEGGA mark) is reversed,
but the Section 2(d) refusal based on Registration No.
2,245,284 (the MEGA SERIES mark) is affirmed.
8 The only evidence in the record that mentions egg handling
machinery at all is a single third-party registration.