Giusto’s Specialty Foods, LLC

Trademark Trial and Appeal Board

Mar 30, 2012

No. 77528811 (T.T.A.B. Mar. 30, 2012)

Mailed: March 30, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Giusto’s Specialty Foods, LLC
________

Serial Nos. 77528795 and 77528811
_______

David A. Payne of Casimir Jones SC for Giusto’s Specialty Foods,
LLC.

Katina S. Mister, Trademark Examining Attorney, Law Office 104
(Chris Doninger, Managing Attorney).
_______

Before Bucher, Taylor and Wellington, Administrative Trademark
Judges.

Opinion by Taylor, Administrative Trademark Judge:

Giusto’s Specialty Foods, LLC has filed applications to
register on the Principal Register the mark VITA-GRAIN (in
standard character format) for goods ultimately identified as:
Application Serial No. 77528795
Full line of bakery ingredients, namely, cooking oil,
dried fruits, processed nuts, processed beans, and
processed edible seeds in International Class 29; and
Full line of bakery ingredients, namely, flours,
processed grains, natural sweeteners, sugar, syrup,
spices, baking soda, baking powder, honey, and
molasses in International Class 30.1

1 Filed July 22, 2008, and alleging December 7, 1959, as the date of
first use anywhere and in commerce of both the Class 29 and Class 30
goods. Ownership is claimed of Registration No. 2325641 for the mark
MILLERS AND BAKERS SINCE 1940 GIUSTO’S VITA-GRAIN and design (MILLERS
THIS OPINION
IS NOT A PRECEDENT
OF THE TTAB
Serial Nos. 77528795 and 77528811
2
Application Serial No. 77528811

Packaging of pre-blended baking mixes to the order and
specification of others in International Class 35;
Flour, grain, and cereal milling services in
International Class 40; and
Preparation of pre-blended baking mixes for others in
International Class 42.2

Registration was finally refused in each application on the
ground that the mark is likely to be confused with the mark
VITOGRAIN (Registration No. 3362833) for “mixes for making
bakery goods” in International Class 30 under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d).3
Applicant filed requests for reconsideration in each
proceeding which were denied, and each proceeding was resumed.
Applicant filed an appeal in each case. The examining attorney
then moved to consolidate the two proceedings, and the motion
was granted on April 8, 2011. The examining attorney next
requested a remand and the consolidated proceedings were

AND BAKERS SINCE 1940 disclaimed) for the same goods identified in
these consolidated proceedings; Registration No. 2325652 for the mark
GIUSTO’S VITA-GRAIN for the same services as those identified in these
consolidated proceedings; and Registration No. 2325654 for the mark
GIUSTO’S VITA-GRAIN for the same goods identified in these
consolidated proceedings.

2 Filed July 22, 2008, and alleging December 31, 1989, as the date of
first use of the Class 35 and Class 42 services anywhere and in
commerce and December 12, 1959, as the date of first use of the Class
40 services anywhere and in commerce. Ownership is claimed of
Registration Nos. 2325652 and 2325654 as well as for Registration No.
2325653 for the mark MILLERS AND BAKERS SINCE 1940 GIUSTO’S VITA-GRAIN
and design (MILLERS AND BAKERS SINCE 1940 disclaimed) for the same
services identified in these consolidated proceedings.

3 Issued January 1, 2008.
Serial Nos. 77528795 and 77528811
3
suspended and jurisdiction of the involved applications was
restored to the examining attorney for consideration of a missed
issue regarding the identification of goods in Application
Serial No. 77528795, that rendered the decision on the request
for reconsideration in that case premature. After the
identification issue was resolved, the examining attorney
ultimately issued a second final refusal in Serial No. 77528795
on the likelihood of confusion ground and a second (and timely)
denial of applicant’s requests for reconsideration. These
proceedings were resumed on January 11, 2011. Both applicant
and the examining attorney filed consolidated briefs.4
DISCUSSION
Our determination of the issue of likelihood of confusion
is based on an analysis of all 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 Company, Inc., 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 and services. See Federated Foods, Inc. v. Fort Howard

4 We will consider applicant’s consolidated brief in this decision,
which is not significantly different in substance than its separately-
filed briefs.

Serial Nos. 77528795 and 77528811
4
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also, In
re Dixie Rests Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
THE MARKS
We first compare applicant’s mark VITA-GRAIN with the cited
registered mark VITOGRAIN. In determining the similarity or
dissimilarity of the marks, we must consider the marks in their
entireties in terms of sound, appearance, meaning and commercial
impression. See Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). The
test, however, 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 their entireties 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).
Applicant maintains that the differences in spelling and
pronunciation of the two marks creates distinctive connotations
and commercial impressions. The examining attorney, conversely
maintains that the marks are “practically” identical in
appearance and sound, which creates a confusingly similar
connotation and commercial impression.
Serial Nos. 77528795 and 77528811
5
In this case, we find that applicant’s mark VITA-GRAIN and
the cited mark VITOGRAIN are substantially similar in appearance,
sound, meaning and commercial impression. Both are three-
syllable terms that begin with the letters “VIT” and end with the
word GRAIN. The only differences in appearance between the marks
is the presence of the letter “A,” in place of the letter “O,” in
applicant’s mark and the hyphen. The presence or absence of a
hyphen is not a significant difference as it merely services as a
break between the second and third syllables. See Goodyear Tire
& Rubber Co. v. Dayco. Corp., 201 USPQ 485, 489 n.4 (TTAB 1978).
Thus, the differences in appearance are relatively minor,
especially since they occur in the middle of the marks, and many
purchasers may not even remember them when the marks are viewed
apart at difference times.
In terms of sound, it is settled that there is no correct
way to pronounce a trademark. See In re Belgrade Shoe, 411 F.2d
1352, 162 USPQ 227 (CCPA 1969) and Interlago AG v.
Abrams/Gentile Entertainment Inc., 63 USPQ2d 1862 (TTAB 2002).
See also In re Microsoft Corp., 68 USPQ 1195 (TTAB 2003) (it is
not possible to control how consumers will vocalize marks).
Contrary to applicant’s position, many consumers may pronounce
the marks in the same manner; the difference between the “a” and
“o” sound is barely discernible when the two marks are
pronounced. And, even if discernible, any difference in sound
Serial Nos. 77528795 and 77528811
6
would, at best, be slight. Slight differences in the sound of
similar marks will not avoid a likelihood of confusion. In re
Energy Telecommunications & Electrical Association, 222 USPQ
350, 351 (TTAB 1983).
Despite the minor differences in spelling, the marks VITA-
GRAIN and VITOGRAIN, when viewed in their in entireties, are
nearly identical in appearance and sound. As such, applicant’s
mark and the cited mark are highly similar in connotation and
commercial impression.
The factor of similarity of the marks thus strongly favors
a finding of likelihood of confusion.
GOODS and SERVICES/TRADE CHANNELS/CONDITIONS OF SALE

We next consider the goods and services, keeping in mind
that, the greater the degree of similarity in the marks, the
lesser the degree of similarity that is required of the products
or services on which they are being used in order to support a
holding of likelihood of confusion. In re Shell Oil Co., 992
F.2d 1204, 26 USPQ2d 1687, 1688-89 (Fed. Cir. 1993). Where, as
here, the marks are so highly similar, there need only be a
viable relationship between the involved goods and services to
support a finding of likelihood of confusion. In re Concordia
International Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983).
Serial Nos. 77528795 and 77528811
7
It is settled that the question of likelihood of confusion
must be determined based on an analysis of the goods and
services recited in applicant’s applications vis-à-vis the goods
recited in the cited registration. Canadian Imperial Bank v.
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987);
and The Chicago Corp. v. North American Chicago Corp., 20 USPQ
2d 1715 (TTAB 1991). Further, it is a general rule that the
goods and services do not have to be identical or directly
competitive to support a finding that there is a likelihood of
confusion. It is sufficient if the respective goods are related
in some manner and/or that the conditions surrounding their
marketing are such that they would be encountered by the same
persons under circumstances that could, because of the
similarity of the marks used in connection therewith, give rise
to the mistaken belief that they emanate from or are associated
with a single source. In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785 (TTAB 1993); In re International Telephone &
Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
Applicant’s Goods (Application Serial No. 77528795)
First, we compare the goods in applicant’s application
Serial No. 77528795, namely applicant’s full line of bakery
ingredients, namely, cooking oil, dried fruits, processed nuts,
processed beans, and processed edible seeds (Class 29) and
Serial Nos. 77528795 and 77528811
8
flours, processed grains, natural sweeteners, sugar, syrup,
spices, baking soda, baking powder, honey, and molasses (Class
30) with the registrant’s mixes for making bakery goods. The
examining attorney maintains that the respective goods are
related because they are all of a type that are used to make
bakery goods and are commonly offered together by a single
source. In support of this position, the examining attorney has
submitted various use-based, third-party registrations to show
that the same entity has adopted a mark covering goods of a type
identified in both applicant’s application and the cited
registration. These third-party registrations may serve to
suggest that the types of goods involved herein are ones which
might be provided by a single entity and offered to the public
under the same mark. See In re Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988) (Although third-party registrations
are “not evidence that the marks shown therein are in use on a
commercial scale or that the public is familiar with them,
[they] may nonetheless have some probative value to the extent
that they may serve to suggest that such goods and/or services
are of a type which may emanate from a single source”). See
also Albert Trostel 29 USPQ2d at 1786.
These registrations include, by way of example:
Registration No. 2150374 for, inter alia, bakery
mixes and baking powder, honey, molasses and spices;

Serial Nos. 77528795 and 77528811
9
Registration No. 2813548 for, inter alia, bakery
mixes for mixing cakes and whole spices;

Registration No. 3313236 for, inter alia, bakery
mixes and honey and dried fruit;

Registration No. 3555811 for, inter alia, bakery
mixes and spices and honey;

Registration No. 3668708 for, inter alia, bread
mixes and spices and dried fruit; and

Registration No. 3715221 for, inter alia, bakery
mixes and baking soda, dried fruits and dried beans;

The examining attorney also made of record printouts
from third-party websites, e.g., Honeyville Food Products
(http://store.honeyvillegrain.com), Sun Organic Farm
(www.sunorganicfarm.com/Merchant1/merchant.mvc?), Papagino
Foods Inc. (www.papaginofoods.com), Arrowhead Mills
(www.www.arrowheadmills.com), Barry Farm Foods
(http://stores.ebay.com/Barry-Farm-Foods) and Bob’s Red Mill
(www.bobsredmill.com), showing that goods of a type identified
in both applicant’s application and the cited registration not
only are offered by a single entity under the same mark, but
are also often offered on the same Internet site.
Based on the nature of the goods and the third-party
registrations, we conclude that applicant’s bakery ingredients
are closely related and complementary to registrant’s mixes
for bakery items, such goods all being baking supplies used
for food preparation, that are often sold by the same source
Serial Nos. 77528795 and 77528811
10
under the same mark. With further regard to the complementary
nature of the goods, in response to an ever increasing pace of
living, many home cooks have adopted a semi-homemade style of
cooking, where applicant’s bakery mixes can serve as a base
ingredient for sweet or savory baked items that may be
embellished with, for example, registrant’s dried fruits, nuts
and/or spices.
Moreover, in the absence of any limitations in
applicant’s application and the cited registration, we must
presume that applicant’s full line of bakery ingredients
travel in some of the same channels of trade as registrant’s
mixes for making bakery goods, e.g., grocery stores and
specialty food stores, and are sold to the some of the same
classes of purchasers, including the general public. See In
re Elbaum, 211 USPQ 639, 640 (TTAB 1981). As such, at a
minimum, the channels of trade and classes of purchasers
overlap.
We find unpersuasive applicant’s contention that the
goods are unrelated because the bakery mixes in the cited
registration have a single distinct use whereas applicant’s
goods may be used for purposes other than baking. Simply
because applicant’s baking ingredients are more versatile than
applicant’s mixes for making bakery goods, in that some may be
used for additional purposes, does not alter the fact that
Serial Nos. 77528795 and 77528811
11
both applicant’s and registrant’s goods are items used in
baking.
In view thereof, the du Pont factors of the relatedness of
the goods, channels of trade and classes of purchasers favor a
finding of likelihood of confusion.
With respect to the conditions of sale, applicant maintains
that food preparation is a specialized process requiring the
careful selection of particular ingredients in order to obtain
acceptable results. Thus, applicant argues, “the goods of both
Registrant and Applicant are likely to be sought through a
process of careful, sophisticated purchasing.” Br. p. 4. There
is no evidence, however, to demonstrate that food preparation is
a specialized process or that the products at issue here are
limited to “specialty food items.” Rather, the record shows
that many of the items, such as registrant’s flours, nuts and
dried fruit and applicant’s baking mixes may be relatively
inexpensive5 pantry staples that typically will be purchased by
ordinary consumers who will exercise only a normal degree of
care in their purchasing decisions.
Applicant’s Services (Application Serial No. 77528811)

5 The record shows that flour, nuts, and dried fruit as well as baking
mixes can be purchased in the United States in small quantities, and
typically for a cost ranging from $2 to $10 an item.

Serial Nos. 77528795 and 77528811
12
We next consider whether applicant’s “packaging of pre-
blended baking mixes to the order and specification of others”
(Class 35); “flour, grain, and cereal milling services” (Class
40); and “preparation of pre-blended baking mixes” (Class 42)
are, or are not, related to registrant’s “mixes for making
bakery goods.” Applicant maintains that its services are
“clearly distinct” from registrant’s goods because the cited
registration only covers pre-packaged goods while its
application covers “customized packaging for baking mixes,
milling services and customized preparation services of baking
mixes.” Br. p. 3.
The examining attorney conversely maintains that
applicant’s services are related to registrant’s goods because
“they are the type of services needed to manufacture/produce the
type of goods offered by the registrant and are also commonly
offered by a single source.” In support of this contention, the
examining attorney has made of record web pages from various
third-party websites which demonstrate that both applicant’s
services and registrant’s goods commonly emanate from the same
source. For example:
The website for War Eagle Mill in response to query as to
whether it did custom grinding states: “Yes. We are happy to
discuss a custom grinding with a customer to see if the request
can be accommodated.” The website also indicates that War Eagle
Serial Nos. 77528795 and 77528811
13
Mill uses a slow turning stone in its milling process, and that
its products, which include bakery mixes, are also available
“gluten-free.” (www.wareaglemill.com).
The website for Adluh Flour states that it mills, mixes and
packages flour for its customers as bases or as finished
products offered under the Adluh mark.
(www.adluh.com/process.htm)
The website for Bay State Milling discusses manufacturing
capabilities which include milling and custom blending and
packaging options for its customers. The website also indicates
that its products include a variety of flours and bakery mixes
offered under the mark GrainEssentials. (www.bsm.com).
The website for Atkinson Milling states that “[c]orn comes
into the mill from farmers by the truckload … and that “we are
proud of the success we have had in the grist milling business.”
The website also indicates that biscuit and muffin mixes are
sold under the Atkinson’s mark.
(http://atkinsonmilling.com).
Grain Millers indicates on its website that its services
include retail co-packaging. The website further states that
Grain Millers is a value-added manufacturer with “[o]n-sight
blending and retail packaging facilities” and that their
“quality ingredients” are sold around the world.
(www.grainmillers.com)
Serial Nos. 77528795 and 77528811
14
The websites for Didion Milling, The Fowler’s Milling
Company and Lehi Roller Mills, indicate that they mill their own
grains to produce flours and baking mixes for wholesale and
retail sales. (www.didionmilling.com, www.fowlermill.com,
www.lehirollermill.com).
The website for Bob’s Red Mill states that “Bob’s Red Mill
is the nation’s leader in stone milling and offers the widest
diversity of whole grains found today,” including grains and
mixes. (www.bobsredmill.com.)
Based on the evidence and the legal principles set forth
previously, and particularly reiterating that there need only be
a “viable relationship” between the goods and services to find
them related for purposes of likelihood of confusion, we find
that applicant’s packaging of pre-blended baking mixes to the
order and specification of others (Class 35), flour, grain, and
cereal milling services (Class 40) and preparation of pre-
blended baking mixes for others (Class 42) and registrant’s
“mixes for making bakery goods” are sufficiently related goods
and services that, when provided under substantially similar
marks, prospective customers are likely to believe that they
emanate from the same source. In making this finding we point
out that, as identified, the goods are complementary or related
inasmuch as registrant’s mixes for baking could be the product
of applicant’s custom preparation and packaging bakery mixes
Serial Nos. 77528795 and 77528811
15
services. It is well recognized that confusion may be likely to
occur from the use of the same or similar marks for goods, on
the one hand, and for services involving those goods, on the
other. See, e.g., In re Hyper Shoppes (Ohio), Inc., 837 F.2d
463, 6 USPQ2d 1025 (Fed. Cir. 1988) (holding BIGG’S (stylized)
for retail grocery and general merchandise store services and
BIGGS and design for furniture likely to cause confusion); In re
H.J. Seiler Co., 289 F.2d 674, 129 USPQ 347 (CCPA 1961) (holding
SEILER’s for catering services and SEILER’S for smoked and cured
meats likely to cause confusion); Steelcase Inc. v. Steelcare
Inc., 219 USPQ 433 (TTAB 1983) (holding STEELCARE INC. and
design for refinishing of furniture, office furniture, and
machinery and STEELCASE for office furniture and accessories,
likely to cause confusion); Corinthian Broad. Corp. v. Nippon
Elec. Co., Ltd., 219 USPQ 733 (TTAB 1983) (holding TVS for
transmitters and receivers of still television pictures and TVS
for television broadcasting services likely to cause confusion).
Moreover, the Internet evidence demonstrates that in
addition to applicant, third-party milling establishments also
engage in milling and custom blending (preparing) and custom
packaging services as well as offering baking mixes, such that
prospective consumers are aware that goods of the type
identified in the cited registration and services of the type
offered by registrant are commonly offered under the same mark.
Serial Nos. 77528795 and 77528811
16
Furthermore, in the absence of any limitations in the
identification of the application or cited registration, we
must presume that the goods and services will be offered to and
purchased by the usual classes of purchasers for those goods and
services, including retail grocery and warehouse store buyers
seeking to develop private label bakery brands or to stock their
shelves with pre-packaged bakery mixes. Thus, at a minimum, the
classes of purchasers overlap. In re Elbaum, 211 USPQ at 640.
Accordingly, the du Pont factors of relatedness of the
goods and services and classes of purchasers favor a finding of
likelihood of confusion.
With respect to the conditions of sale, applicant contends
that due to the specialized nature of the goods of registrant
and the services of applicant, the consumers of both are
necessarily sophisticated and selective. Applicant particularly
argues that the nature and expense of its customized packaging,
milling, and food preparation services would be sought through a
process of careful, sophisticated purchasing.
There is no evidence in the record concerning the pricing
of applicant’s milling and custom packaging and baking mixes
preparation services, however we believe it reasonable to assume
that consumers seeking such custom services are likely to
exercise some degree of care in their purchasing decisions.
However, even knowledgeable and careful purchasers can be
Serial Nos. 77528795 and 77528811
17
confused as to source, where, as here, very similar marks are
used in connection with related goods and services. See In re
Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed.
Cir. 1986) citing Carlisle Chemical 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.").
We thus find this du Pont factor neutral.
We next address additional arguments made by applicant
in support of its position that the refusals should be
reversed. First, applicant maintains that there has been a
lengthy period of concurrent use without evidence of actual
confusion, and this long period of concurrent use without
confusion, weighs against a finding of likelihood of
confusion. We find this argument unpersuasive. As the
examining attorney points out, it is not necessary to show
actual confusion in order to establish likelihood of
confusion. See Weiss Associates Inc. v. HRL Associates
Inc. 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990).
Moreover, there is nothing in the record to show that there
has been meaningful opportunity for such confusion to have
occurred. More importantly, in the context of an ex parte
proceeding, “the lack of evidence of actual confusion
carries little weight.” Majestic Distilling, 65 USPQ at
Serial Nos. 77528795 and 77528811
18
1205. Accordingly, applicant’s assertion of the absence of
actual confusion is of little probative value in our
determination on the issue of likelihood of confusion and
this du Pont factor is neutral.
Applicant also contends that it “owns four U.S.
registrations for marks incorporating VITA-GRAIN, for goods and
services equivalent to those of the instant applications”6 and,
explains further, that VITA-GRAIN has served as the brand for
its goods and services because all four marks include
applicant’s “corporate name,” Giusto’s. Again, applicant argues
that because these registrations have peacefully coexisted with
registrant’s mark since 2005, a likelihood of confusion cannot
be established. This argument, too, is unavailing. As just
explained, the absence of actual confusion is of little import
within the context of an ex parte proceeding. Moreover,
applicant’s other marks, which include the name Guisto’s (alone
or with other matter) are not as similar to the cited mark as is
its involved VITA-GRAIN mark. Put another way, applicant’s
ownership of other marks that somewhat resembles its applied-for
mark is not relevant to the specific likelihood of confusion
issue involving applicant’s VITA-GRAIN mark vis-à-vis the cited

6 The particulars of three of these registrations are set out at
footnote 1, supra. The fourth, Registration No. 2325653 is for the
mark MILLERS AND BAKERS SINCE 1940 GIUSTO’S VITA-GRAIN and design
(MILLERS AND BAKERS SINCE 1940 disclaimed).

Serial Nos. 77528795 and 77528811
19
registered mark VITOGRAIN. See, Hornblower & Weeks Inc. v.
Hornblower & Weeks Inc., 60 USPQ2d 1733, 1737 (TTAB 2001);
Baroid Drilling Fluids v. Sun Drilling Products, 24 USPQ2d 1048,
1052 (TTAB 1992); and In re Lar Mor International, Inc., 221
USPQ 180, 183 (TTAB 1983).
Finally, to the extent that applicant is claiming priority
over the registered mark, this allegation constitutes an
impermissible collateral attack of registrant’s registration.
Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), provides
that a certificate of registration on the Principal Register
shall be prima facie evidence of the validity of the
registration, of the registrant’s ownership of the mark and of
the registrant’s right to use the mark in connection with the
goods or services identified in the certificate. During
ex parte prosecution, including an ex parte appeal, an applicant
will not be heard on matters that constitute a collateral attack
on the cited registration (e.g., applicant’s claim of priority).
In re Dixie Rests, Inc. 41 USPQ2d at 1534; and In re Peebles
Inc., 23 USPQ2d 1795, 1797 n.5 (TTAB 1992). See TMEP
§ 1207.01(d)(iv)(5th ed. 2007). Accordingly, no consideration
has been given to applicant’s argument in this regard.
When we consider the record and the relevant likelihood of
confusion factors, and all of applicant’s arguments relating
thereto, including those arguments not specifically addressed
Serial Nos. 77528795 and 77528811
20
herein, we conclude that in view of the substantial similarity
in the commercial impressions of applicant’s mark, VITA-GRAIN,
and registrant’s mark VITOGRAIN, their contemporaneous use on
the involved closely related goods and related services is
likely to cause confusion as to the source or sponsorship of
such goods and services. Moreover, to the extent that we have
any doubts as to the correctness of this conclusion, we resolve
such doubts, as we must, against applicant and in favor of
registrant. See Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992);
and Ava Enterprises Inc. v. Audio Boss USA Inc., 77 USPQ2d 1783
(TTAB 2006).
Decision: The refusals to register under Section 2(d) are
affirmed as to both application Serial No. 77528795 and
application Serial No. 77528811.