Goose Valley Natural Foods, LLCv.Terence Yeung

Trademark Trial and Appeal Board

Aug 16, 2012

No. 91196118 (T.T.A.B. Aug. 16, 2012)

Mailed:
August 16, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Goose Valley Natural Foods, LLC

v.

Terence Yeung
_____

Opposition No. 91196118
to application Serial No. 77762780
filed on June 18, 2009
_____

Sean Ploen of the Ploen Law Firm, PC for Goose Valley
Natural Foods, LLC.

Terence Yeung, pro se.
______

Before Quinn, Mermelstein and Bergsman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Terence Yeung (“applicant”) filed an intent-to-use
application for the mark FUSIONER and design, shown below,
for “coffee, tea, cocoa, sugar, rice, tapioca, sago,
artificial coffee; flour; breakfast cereals; bread, pastry
and bakery goods; confectionery, namely pastilles; frozen
confectionery; honey; treacle; yeast, baking-powder; salt;
mustard; vinegar, sauces; spices; ice” in Class 30.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition Nos. 91196118
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The design elements of the mark are Chinese characters which
are translated into English as the words “Rich,” “West,” and
“Asia.”
Goose Valley Natural Foods, LLC (“opposer”) filed a
notice of opposition against the registration of applicant’s
mark on the ground of priority of use and likelihood of
confusion pursuant to Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d). Opposer alleged ownership of
application Serial No. 77711397 for the mark FUSION, in
standard character form, for “natural food products, namely,
wild rice; wild rice, brown rice, red rice, and seasoning
mix combined in unitary packages; packaged meal mixes
consisting primarily of wild rice, brown rice, red rice,
rice, processed bulgur wheat, buckwheat groats, processed
cereal millet, processed barley, and processed quinoa,” in
Class 30. The application was filed on April 10, 2009, two
months prior to the filing date of applicant’s application.
Applicant, in his answer, admitted that opposer is the
owner of its pleaded application and that opposer has common
law rights in the mark FUSION in connection with rice and
Opposition Nos. 91196118
3
rice products. Applicant denied the remaining essential
allegations in the notice of opposition.
The Record
By rule, the record includes applicant’s application
file and the pleadings. Trademark Rule 2.122(b), 37 CFR
§2.122(b). Only opposer introduced any evidence. Opposer
introduced the following evidence:
1. Notice of reliance on a copy of the registration
that issued from opposer’s pleaded application
printed from the electronic database records of
the USPTO showing the current state and title of
the registration;1
2. Notice of reliance on webpages displaying
advertisements for opposer’s products; and
3. Notice of reliance on third-party registrations
listing goods in both opposer’s registration and
applicant’s application.

1 Applicant was put on notice that opposer sought to rely on the
application that later matured into a registration and applicant
had an opportunity to object to the issuance of the registration,
either by way of a notice of opposition when the mark in the
application was published, or by way of a counterclaim for
cancellation once the registration issued. Accordingly, opposer
did not have to amend its pleading to assert the registration
that issued during the course of this opposition. See UMG
Recordings Inc. v. O’Rourke, 92 USPQ2d 1042, 1045 n.12 (TTAB
2009) (“while an opposer that pleads ownership of an application
would have to make any subsequently issued registration of
record, it would not have to amend its notice of opposition prior
to doing so. The pleading of the application … provided
sufficient notice to the applicant that the opposer would rely on
a registration from the application for its likelihood of
confusion claim.”).
Opposition Nos. 91196118
4
Opposer also introduced a notice of reliance with
documentation that applicant failed to respond to opposer’s
interrogatories and requests for production of documents and
that applicant failed to participate in the discovery
conference. Because opposer failed to file a motion to
compel discovery, opposer may not rely on applicant’s
failure to respond to its interrogatories or document
requests as admissions against interest by applicant. See
H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1719 (TTAB
2008) (party that receives response it believes inadequate
but fails to file a motion to test sufficiency of response,
may not thereafter complain about its insufficiency); Time
Warner Entertainment Co. v. Jones, 65 USPQ2d 1650, 1656
(TTAB 2002) (having failed to file motion to compel,
defendant will not later be heard to complain that
interrogatory responses were inadequate); Chianti Ruffino
Esportazione Vinicola Toscana S.p.A. v. Colli Spolenti
Spoletoducale SCRL, 59 USPQ2d 1383, 1383 (TTAB 2001) (“Any
deficiencies in applicant's discovery responses should have
been addressed by the timely filing of a properly-supported
motion to compel discovery prior to the commencement of
opposer's testimony period”); TBMP § 523.04 (3rd ed. rev.
2012).
With respect to applicant’s failure to participate in
the discovery conference, opposer’s remedy was to file a
Opposition Nos. 91196118
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motion for sanctions prior to the deadline for the parties
to make initial disclosures. Trademark Rule 2.120(g)(1).
Standing
Because opposer has properly made the registration that
issued from its pleaded application of record, opposer has
established its standing. Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185, 189 (CCPA 1982).
Priority
Because opposer has properly made the registration that
issued from its pleaded application of record, Section 2(d)
priority is not an issue in this case as to the marks and
the goods covered by the registrations. King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108,
110 (CCPA 1974).
Likelihood of Confusion
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the issue of likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities and
Opposition Nos. 91196118
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dissimilarities between the marks and the similarities and
dissimilarities between the goods and/or services. See
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 differences in the marks”).
A. The similarity or dissimilarity and nature of the goods
at issue, likely-to-continue channels of trade and
classes of consumers.

Opposer’s mark is registered for, inter alia, wild rice
and wild rice, brown rice, red rice, and seasoning mix
combined in unitary packages. Applicant is seeking to
register his mark for, inter alia, rice. Applicant’s “rice”
is broad enough to encompass opposer’s “wild rice” and “wild
rice, brown rice, red rice, and seasoning mix combined in
unitary packages” and, therefore, the goods are legally
identical. In the context of likelihood of confusion, it is
sufficient if likelihood of confusion is found with respect
to use of the mark on any item that comes within the
description of goods in the application or registration.
Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d
1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer v.
TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007).
Because the goods described in the application and
opposer’s registration are legally identical, we must
Opposition Nos. 91196118
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presume that the channels of trade and classes of purchasers
are the same. See American Lebanese Syrian Associated
Charities Inc. v. Child Health Research Institute, 101
USPQ2d 1022, 1028 (TTAB 2011); In re Smith and Mehaffey, 31
USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are
legally identical, they must be presumed to travel in the
same channels of trade, and be sold to the same class of
purchasers.”). See also In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there
was no evidence regarding channels of trade and classes of
consumers, the Board was entitled to rely on this legal
presumption in determining likelihood of confusion).
B. The similarity of the marks in their entireties in
terms of appearance, sound, meaning, and connotation.

We now turn 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
de Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd.,
8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co.,
6 USPQ2d 1041, 1042 (TTAB 1987). In comparing the marks, we
are mindful that where, as here, the goods are in part
identical, the degree of similarity necessary to find a
likelihood of confusion need not be as great as where there
Opposition Nos. 91196118
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is a recognizable disparity between the goods. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Real Estate One, Inc.
v. Real Estate 100 Enterprises Corporation, 212 USPQ 957,
959 (TTAB 1981); ECI Division of E-Systems, Inc. v.
Environmental Communications Incorporated, 207 USPQ 443, 449
(TTAB 1980).
Moreover, in comparing the marks, 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 so that confusion as to the source of the goods
offered under the respective marks is likely to result. San
Fernando Electric Mfg. Co. v. JFD Electronics Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons
Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June
5, 1992). The proper focus is on the recollection of the
average customer, who retains a general rather than a
specific impression of the marks. Winnebago Industries,
Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB
1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
108 (TTAB 1975). In this case, the average customer is an
ordinary purchaser of rice.
Opposition Nos. 91196118
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Opposer’s mark is FUSION and applicant’s mark is
FUSIONER and design, shown below.

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, different features may be analyzed to determine
whether the marks are similar. Price Candy Company v. Gold
Medal Candy Corporation, 220 F.2d 759, 105 USPQ 266, 268
(CCPA 1955). In fact, “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
Opposition Nos. 91196118
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their entireties.” In re National Data Corp., 224 USPQ at
751.
In the case of marks consisting of words and a design,
the words are normally given greater weight because they
would be used by consumers to request the products. In re
Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999);
In re Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB
1987). See also Sweats Fashions Inc. v. Pannill Knitting
Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987);
Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d
1565, 218 USPQ 390 (Fed. Cir. 1983). With respect to
applicant’s mark, we find that the word “Fusioner” is the
dominant element of the mark because that is how consumers
will request the products and how consumers will remember
the mark. Even if the Chinese lettering is recognized as
such, those who do not speak Chinese would view it as
Chinese words or lettering with no known meaning and thereby
functioning as a design element.
The words “Fusion” and “Fusioner” are similar in
appearance and sound because applicant’s mark FUSIONER is
comprised of the root word “Fusion.” The word “Fusion” is
defined as “the act or process of fusing; the state of being
fused.”2 The word “fuse” is defined as “to unite or blend

2 The Random House Dictionary of the English Language
(Unabridged), p. 778 (2nd ed. 1987). The Board may take judicial
notice of dictionary evidence. University of Notre Dame du Lac
Opposition Nos. 91196118
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into a whole, as if by melting together … to become united
or blended.”3 As applied to opposer’s wild rice, the mark
FUSION is arbitrary and an inherently strong mark, entitled
to a broad scope of protection. On the other hand, the word
FUSIONER is a coined term, without any known meaning,
although it does imply something to do with “fusion” or
somebody who is involved with fusion. However, because the
test is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but based on the
recollection of the average consumer, who normally retains a
general rather than specific impression of marks, we find
that the marks are more similar than dissimilar especially
because the commercial impression of the marks are similar
because “fusion” is the root word of “fusioner.”
Although the marks have certain differences, when we
compare them in their entireties, we find that the
similarity in appearance and sound outweighs any differences
in meaning and commercial impression, especially when the
marks are used on identical goods.

C. Balancing the factors.
In view of the facts that the marks are similar, the
goods are legally identical, and the presumption that the

v. J. C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982),
aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
3 Id.
Opposition Nos. 91196118
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channels of trade and classes of consumers are the same, we
find that applicant’s mark FUSIONER and design for rice is
likely to cause confusion with opposer’s mark FUSION for
“coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial
coffee; flour; breakfast cereals; bread, pastry and bakery
goods; confectionery, namely pastilles; frozen
confectionery; honey; treacle; yeast, baking-powder; salt;
mustard; vinegar, sauces; spices; ice.”
Decision: The opposition is sustained and
registration to applicant is refused.