GB Blume Investments, LLC

Trademark Trial and Appeal Board

May 1, 2013

No. 85243160 (T.T.A.B. May. 1, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: May 1, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re GB Blume Investments, LLC
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Serial Nos. 85235974 and 85243160
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Robert D. Buyan of Stout Uxa Buyan & Mullins LLP,
for GB Blume Investments, LLC.
Nicholas A Coleman, Trademark Examining Attorney, Law Office 115,
John Lincoski, Managing Attorney.
_____

Before Seeherman, Bucher and Taylor,
Administrative Trademark Judges.

Opinion by Bucher, Administrative Trademark Judge:
GB Blume Investments, LLC (“applicant”) seeks registration on the Principal
Register of the mark TAILGATE (in standard character format) in the following two
applications:
for “chicken wings packaged with seasoning, marinade
and/or sauce; refrigerated food package combinations con-
sisting primarily of chicken wings in combination with
seasoning, marinade and/or sauce,” in International Class
29;1 and
for “vegetables, namely, pre-washed, refrigerated fresh
vegetables suitable for grilling and pre-washed, refriger-

1 Application Serial No. 85235974 was filed on February 7, 2011, based upon applicant’s
allegation of a bona fide intention to use the mark in commerce.
Serial Nos. 85235974 and 85243160
2

ated, skewered fresh vegetables suitable for grilling,” in
International Class 29.2
The examining attorney has refused registration of applicant’s mark under Sec-
tion 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), having determined that regis-
tration would lead to a likelihood of confusion in view of the following two registra-
tions owned by the same entity:
TAILGATER for “food package combinations, namely, fresh and frozen pork,
further processed pork, cooked pork, processed cooked pork and
luncheon meats, hot dogs, sausage dogs containing pork; fresh
and frozen beef, further processed beef, cooked beef, processed
cooked beef and luncheon meats, hotdogs containing beef; fresh
and frozen poultry, further processed poultry, cooked poultry,
processed cooked poultry; cheese, cheese spreads, cheese balls
and logs, snack dips, soups, sausage, hams, turkey, sauerkraut,
pickles; fresh and frozen bison, further processed bison, cooked
bison, processed cooked bison; fresh and frozen lamb, further
processed lamb, cooked lamb, processed cooked lamb; fresh sea-
food, fish, further cooked seafood, dairy products excluding ice
cream, ice milk, and frozen yogurt, ketchup, mustards, season-
ings; fruits and or vegetables” in International Class 29; 3 and

for “food package combinations comprised primarily of fresh and
frozen pork, further processed pork, cooked pork, processed
cooked pork and luncheon meats, hot dogs, sausage dogs contain-
ing pork; fresh and frozen beef, further processed beef, cooked
beef, processed cooked beef and luncheon meats, hot dogs con-
taining beef; fresh and frozen poultry, further processed poultry,
cooked poultry, processed cooked poultry; cheese, cheese spreads,
cheese balls and logs, snack dips, soups, sausage, hams, turkey,
sauerkraut, pickles; fresh and frozen bison, further processed
bison, cooked bison, processed cooked bison; fresh and frozen
lamb, further processed lamb, cooked lamb, processed cooked
lamb, fresh seafood, fish, further cooked seafood; dairy products
excluding ice cream, ice milk and frozen yogurt; dried, canned or
frozen fruits and vegetables” in International Class 29. 4

2 Application Serial No. 85243160 was filed on February 15, 2011, based upon applicant’s
allegation of a bona fide intention to use the mark in commerce.
3 Registration No. 3340981 issued on November 20, 2007.
4 Registration No. 3178170 issued on November 28, 2006; Section 8 affidavit (six-year) accept-
ed and Section 15 affidavit acknowledged. No claim is made to the exclusive right to use the
word “Meat” apart from the mark as shown.
Serial Nos. 85235974 and 85243160
3

When the refusals were made final, applicant appealed and requested reconsid-
eration. After the examining attorney denied the requests for reconsideration, the
appeals were resumed. Inasmuch as these appeals involve common questions of law
and fact, and each has been treated in substantially the same manner by the appli-
cant and by the examining attorney, we have consolidated these separate appeals
and are issuing a single decision herein. We affirm both refusals to register.
Applicable Law
Our determination under Trademark Act § 2(d) is based upon an analysis of the
probative facts in evidence that are relevant to the factors bearing on a likelihood of
confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563
(CCPA 1973); see also Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In considering the evi-
dence of record on these factors, we keep in mind that “[t]he fundamental inquiry
mandated by Section 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see also In
re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
The cited marks are TAILGATER and . Of these, the closest in
similarity to applicant’s mark TAILGATE is the mark TAILGATER; if we find
likelihood of confusion on the basis of the TAILGATER cited registration, we need
Serial Nos. 85235974 and 85243160
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not consider applicant’s mark compared to registrant’s composite mark. Converse-
ly, if we do not find a likelihood of confusion with the registration for TAILGAT-
ER, we would not find applicant’s mark likely to cause confusion with registrant’s
other mark and thus would not affirm the refusal under Section 2(d). Accordingly,
our likelihood of confusion analysis will focus on registrant’s TAILGATER mark.
See, e.g., In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
A. Relationship of the Goods /Trade Channels / Classes of Consumers
We turn our attention first to a consideration of the goods as they are identified
in the registration and applications. Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed.
Cir. 2002).
Applicant seeks to register the applied-for mark for chicken wings and food
package combinations consisting primarily of chicken wings and seasoning, mar-
inade and sauces, as well as vegetables suitable for grilling. The TAILGATER reg-
istration issued in connection with a variety of food products in Int. Class 29, includ-
ing “fresh and frozen poultry, further processed poultry, cooked poultry, processed
cooked poultry” as well as “seasonings; fruits and/or vegetables.”
Accordingly, registrant’s variety of chicken products must be read as includ-
ing chicken wings with seasoning, and its vegetables – identified without limi-
tation – must be read as including vegetables suitable for grilling. Therefore, we
find that the applicant’s and registrant’s goods are identical in part.
Serial Nos. 85235974 and 85243160
5

Similarly, given that the respective goods are deemed to be legally identical, we
must presume that they would be offered in all the same channels of trade. Addi-
tionally, the du Pont factor focusing on the conditions under which and buyers to
whom sales are made clearly favors a finding of likelihood of confusion. The food
items identified in the registration and applications encompass relatively inexpen-
sive goods, while the buyers are the public at large, so we find that the purchases of
chicken wings or vegetables would not be made with a great deal of care. Hence,
these du Pont factors (i.e., channels of trade and conditions of purchase) also sup-
port the position of a likelihood of confusion as argued by the examining attorney.
B. Comparison of the Marks
As we turn to the marks, we note that when, as here, the marks are used, in
part, on identical goods, the degree of similarity between the marks necessary to
support a finding of likelihood of confusion declines. Century Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). Ap-
plicant has applied to register the mark TAILGATE, while the mark in the ‘981
registration is TAILGATER.
In comparing the marks, we must consider the marks in their entireties as to
appearance, sound, connotation and commercial impression, to determine the simi-
larity or dissimilarity between them. Palm Bay, 73 USPQ2d at 1692. The test, un-
der the first du Pont factor, is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether the marks are sufficient-
ly similar in terms of their overall commercial impression that confusion as to the
Serial Nos. 85235974 and 85243160
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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 ra-
ther than a specific impression of trademarks. See Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106 (TTAB 1975).
In looking at the respective marks, we agree with the examining attorney
that the marks are similar because they consist of the same dominant root term.
The fact that applicant’s mark does not contain the final letter “r” found in regis-
trant’s TAILGATER mark is insufficient to distinguish the marks inasmuch as
consumers are unlikely to notice the difference where the marks differ by only a
single letter, and that letter appears at the end of the mark. See Flow Technology
Inc. v. Picciano, 18 USPQ2d 1970 (TTAB 1991) (OMNITRAK versus OMNITRAX);
and Steelcase Inc. v. Steelcare Inc., 219 USPQ 433 (TTAB 1983) (STEELCASE ver-
sus STEELCARE).
Further, the respective marks convey highly similar meanings. As shown by
the examining attorney, in the context of the identified products, the term “tail-
gate” refers to “an informal meal served from the back of a parked vehicle” or “a
tailgate picnic.”5 A “tailgater” is identified as “a person who participates in a
tailgate picnic.”6 As such, both terms suggest that the respective goods may be
consumed during the course of a tailgate picnic.

5 OXFORD WORLD DICTIONARY, as attached to the Office action of May 9, 2011, at 9.
6 Dictionary.infoplease.com, citing RANDOM HOUSE UNABRIDGED DICTIONARY (1997),
as attached to the Office action of May 9, 2011, at 10.
Serial Nos. 85235974 and 85243160
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Accordingly, we find that the marks are nearly identical in appearance and
quite similar as to pronunciation, meaning and overall commercial impression, and
this critical du Pont factor favors a finding of a likelihood of confusion.
C. Third-party Registrations and Uses
The sixth du Pont factor requires consideration of any evidence pertaining to
“the number and nature of similar marks in use on similar goods.” Applicant ar-
gues that the term “Tailgate” is a commonly-used source-indicator for goods. In
support of this argument, applicant submitted a long listing of registrations from
the TESS search system consisting of the mark, application serial number or
registration number, and its status. However, even though the examining at-
torney failed in a timely manner to alert applicant to the deficient nature of this
summary presentation, and therefore we have considered it, this hit list does
not provide any information regarding the goods in the registrations, and the
references include many pending applications and expired registrations. As
such, this list offers substantially no probative value in our making this deter-
mination.
Applicant has also provided more detailed printouts of four registrations for
the term “Tailgate” registered in connection with the following food items:
TAILGATE for “bratwurst” in International Class 29;7
TAILGATE TILOVEYA for “fish, namely, tilapia” in International Class 29;8

7 Registration No. 1652519 issued on July 30, 1991; second renewal.
8 Registration No. 3367174 issued on January 8, 2008.
Serial Nos. 85235974 and 85243160
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for “chili, with and without beans” in International
Class 29;9 and
TAILGATE FARMS for “fruit preserves; pickles” in International Class 29;
and “chocolate topping; honey; marinades; mustard;
relish; salad dressings; salsa; sauces” in Int. Class 30.10

However, these third-party registrations are not evidence that the marks there-
in have been used at all, let alone used so extensively that consumers have become
sufficiently conditioned by their usage that they can distinguish between such
marks on the basis of minor differences. The probative value of third-party trade-
marks depends entirely on their usage. Palm Bay Imps., Inc., 73 USPQ2d at 1693.
Where, as here, the record includes no evidence about the extent of third-party uses,
the probative value of this evidence is minimal. Han Beauty, Inc. v. Alberto-Culver
Co., 236 F.3d 1333, 57 USPQ2d 1557, 1561 (Fed. Cir. 2001); see also Olde Tyme
Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992)
(“As to strength of a mark, however, registration evidence may not be given any
weight.”). “The existence of [third party] registrations is not evidence of what hap-
pens in the market place or that consumers are familiar with them nor should the
existence on the register of confusingly similar marks aid an applicant to register
another likely to cause confusion, mistake or to deceive.” AMF Inc. v. Am. Leisure
Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); see also In re Max

9 Registration No. 3382728 issued on February 12, 2008. No claim is made to the exclusive
right to use the word “Chili” apart from the mark as shown.
10 Registration No. 3591263 issued on March 17, 2009.
Serial Nos. 85235974 and 85243160
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Capital Group Ltd., 93 USPQ2d at 1248 (third-party registrations cannot justify
registration of another confusingly similar mark).
On the other hand, third-party registrations may be considered in the manner
of dictionary definitions, to show that a term has a particular significance in con-
nection with the goods. In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257,
1259 (Fed. Cir. 2010). For example, the word “Tailgate” in the “Dom’s Tailgate
Chili” registration listed above would be understood as referring to the back
portion of the red pick-up truck outside the stadium as depicted in the mark. It
is not clear to us what meaning would be ascribed to the word “Tailgate” in
TAILGATE FARMS. We accept that the other two registrations show that the
word “Tailgate” has a suggestive meaning, the same suggestive meaning that
we have already discussed above. However, this does not persuade us that the
term “Tailgate” (or “Tailgater”) is so highly suggestive that the cited registra-
tion is entitled to such a narrow scope of protection that it would not extend to
prevent the registration of TAILGATE for legally identical goods.
Finally, applicant also submitted third-party websites featuring a very wide
variety of goods sold under “Tailgate”-formative marks. Extensive third-party
use of similar marks for similar goods can serve to indicate that consumers are
able to differentiate between such marks, and that confusion is not likely even if
the marks contain a common element. However, here the third-party uses are
for goods unrelated to the goods in question (e.g., Bloody Mary mix, clothing,
lawn chairs, grills, bean bag toss games, seat cushions, winches, insulated food
bags, or couches). As a result, we cannot conclude from these third-party uses of
Serial Nos. 85235974 and 85243160
10

“Tailgate”-formative marks that consumers would readily ascribe separate
sources to chicken products or fresh vegetables offered under the marks TAIL-
GATE and TAILGATER.
D. Lack of Actual Confusion
Applicant argues that the record does not contain any evidence of actual con-
fusion. However, as our primary reviewing Court has stated:
With regard to the seventh du Pont factor, we agree with the Board that
Majestic’s uncorroborated statements of no known instances of actual con-
fusion are of little evidentiary value. See In re Bissett-Berman Corp., 476
F.2d 640, 642, 177 USPQ 528, 529 (CCPA 1973) (stating that self-serving
testimony of appellant’s corporate president’s unawareness of instances of
actual confusion was not conclusive that actual confusion did not exist or
that there was no likelihood of confusion). A showing of actual confusion
would of course be highly probative, if not conclusive, of a high likelihood of
confusion. The opposite is not true, however. The lack of evidence of actual
confusion carries little weight, J.C. Hall Co. v. Hallmark Cards, Inc., 340
F.2d 960, 964, 144 USPQ 435 (CCPA 1965), especially in an ex parte con-
text.
In re Majestic Distilling Company, Inc., 65 USPQ2d at 1205.
In this case, because this is an intent-to-use application, the lack of evidence of
actual confusion is even less meaningful, since we have no basis for concluding that
there has been a sufficient opportunity for confusion to occur, if it were likely to oc-
cur. Accordingly, we conclude that the actual-confusion factor is neutral in this case.
E. Conclusion
For the reasons discussed above, we find that applicant’s registration of the
mark TAILGATE is likely to cause confusion with the cited registration for TAIL-
GATER. In view of this finding, we need not address the refusal based on Registra-
tion No. 3178170 for .
Serial Nos. 85235974 and 85243160
11

Decision: The refusals to register applicant’s mark under Section 2(d) of the
Lanham Act in both applications are hereby affirmed on the basis of Registration
No. 3340981.