Grow More, Inc.

Trademark Trial and Appeal Board

Sep 26, 2005

No. 78122114 (T.T.A.B. Sep. 26, 2005)

Mailed: 9/26/2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Grow More, Inc.
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Serial No. 78122114
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John J. Connors of Connors & Associates for applicant.

Florentina Blandu, Trademark Examining Attorney, Law Office
112 (Janice O’Lear, Managing Attorney).
_______

Before Quinn, Holtzman and Zervas, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:
An application was filed by Grow More, Inc. to
register the mark shown below

for “fertilizers for agricultural use.”1 Pursuant to the
trademark examining attorney’s requirement, the words “GROW
MORE” are disclaimed apart from the mark.
The examining attorney refused registration under
Section 2(d) of the Trademark Act on the ground that

1Application Serial No. 78122114, filed April 16, 2002, asserting first
use anywhere and first use in commerce on March 14, 1991.
THIS DECISION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 78122114
2
applicant’s mark, when used in connection with applicant’s
goods, so resembles the previously registered mark MORGRO
for “gardening products, namely, insecticides, herbicides,
fungicides and weed killers,”2 and for “fertilizers,”3 as to
be likely to cause confusion. The cited registrations are
owned by the same entity.
When the refusals were made final, applicant appealed.
Applicant and the examining attorney filed briefs. An oral
hearing was not requested.
Applicant argues that the marks are visually
different, and that the marks do not sound alike.
Applicant has submitted sixty-five third-party
registrations of marks that include the terms “grow” or
“gro” covering fertilizers or related products. Based on
this evidence, applicant contends that consumers are able
to distinguish between marks in the fertilizer field based
on even small differences between them.
The examining attorney maintains that the goods are
identical or otherwise closely related. The examining
attorney also contends that the marks are similar,
asserting that the literal portion of applicant’s mark is
essentially a transposition of the registered mark, and

2 Registration No. 1006212, issued March 11, 1975; renewed.
3 Registration No. 1418829, issued December 2, 1986; Section 8 affidavit
accepted, Section 15 affidavit filed.
Ser. No. 78122114
3
that the transposition does not change the overall
commercial impression, so that confusion is likely between
the marks. The following scenario is set forth by the
examining attorney to support her finding of likelihood of
confusion (Appeal Brief, p. 9):
A consumer with the average vague
memory of the marks will likely become
confused between “More Grow” and “Grow
More” [the phonetic spoken equivalent
of each mark]. For example neighbor A
says, “Hey, your yard looks great!
What are you using on it?” Neighbor B
responds “Morgro--its [sic] great
stuff. Try it.” Neighbor A goes--a
few days or even weeks later--to
agricultural store or hardware store
[sic] and comes across “Grow More”
fertilizers and week killers. In his
head he thinks “More Grow? Grow More?
What was it called? This must be the
stuff!”

In support of the refusal, the examining attorney submitted
excerpts of websites retrieved from the Internet showing
the relationship between fertilizers and insecticides and
herbicides, and that the products may be manufactured by
the same entity.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of 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
Ser. No. 78122114
4
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/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also: In
re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
(Fed. Cir. 1997).
Turning first to the goods, we must base our
comparison on the identifications in the application and
the cited registrations. In re Shell Oil Co., 992 F.2d
1204, 26 USPQ2d 1687, 1690 at n. 4 (Fed. Cir. 1993).
Applicant’s “fertilizers for agricultural use” and
registrant’s “fertilizers” are legally identical for
purposes of the likelihood of confusion analysis. In
addition, we find that applicant’s fertilizers are closely
related to registrant’s “insecticides, herbicides,
fungicides and weed killers.” In the absence of any
limitations in the identifications, it is presumed that the
goods move in the same channels of trade and are purchased
by the same classes of purchasers. In re Elbaum, 211 USPQ
639 (TTAB 1981).
Ser. No. 78122114
5
Accordingly, we turn to the question of whether the
respective marks are sufficiently similar so that their use
in connection with the goods would be likely to cause
confusion.
Considering applicant’s mark, it is clear that the
literal portion, GROW MORE, dominates over the subordinate
leaf design. Purchasers will use the words to refer to or
request the goods. In re Appetito Provisions Co., Inc., 3
USPQ2d 1553, 1554 (TTAB 1987). Although it is not proper
to dissect a mark, if one feature of a mark is more
significant than another feature, greater weight may be
given to the dominant feature for purposes of determining
likelihood of confusion. Giant Food, Inc. v. Nation’s
Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed. Cir.
1983).
In comparing applicant’s mark GROW MORE and design
with registrant’s mark MORGRO, the marks are different in
sound and appearance. The marks look different and,
because of the reversal of the terms comprising the marks,
the marks sound different.
In terms of meaning, the marks are highly suggestive,
and the highly suggestive nature of the marks is a
significant factor to consider in this case. Insofar as
applicant’s mark is concerned, the examining attorney even
Ser. No. 78122114
6
required a disclaimer of the words “GROW MORE.” The third-
party registrations, being like dictionary evidence to show
the meaning of the terms “grow” and “gro,” establish the
suggestive nature of the marks, that is, that the products
will promote better or improved growth of agricultural
products. Specialty Brands, Inc. v. Coffee Bean
Distributors, Inc., 748 F.2d 669, 223 USPQ 1281, 1285-86
(Fed. Cir. 1984); and In re Dayco Products-Eaglemotive
Inc., 9 USPQ2d 1910, 1911-12 (TTAB 1988).
The main thrust of the examining attorney’s argument
is that the terms comprising the marks are simply
transposed, and that this is not enough to avoid confusion.
Where the primary difference between marks is the
transposition of the elements that comprise the marks and
where the transposition does not change the overall
commercial impression, there may be a likelihood of
confusion. In re Wine Society of America Inc., 12 USPQ2d
1139 (TTAB 1989). However, if the transposed mark creates
a distinctly different commercial impression, then
confusion is not likely. In re Best Products Co., Inc.,
231 USPQ 988 (TTAB 1986).
In the present case, we find that the transposition of
the terms “GROW” and “MORE,” together with the change in
spelling, give the marks different overall commercial
Ser. No. 78122114
7
impressions. Applicant’s mark GROW MORE and design would
appear to be grammatically correct, whereas registrant’s
mark MORGRO is not only grammatically incorrect, but also
the words in registrant’s mark are misspelled. Thus, we
find that registrant’s mark conveys a commercial impression
that is jarring in a way that applicant’s mark is not. The
transposition of the terms and the different spellings of
the terms, coupled with the highly suggestive nature of the
marks, are enough to distinguish the marks, even when
applied to identical or closely related goods. Also, the
addition of the leaf design in applicant’s logo mark,
although less significant than the words, nevertheless
serves to further distinguish this mark from registrant’s
mark.
Based on the record before us, we see the examining
attorney’s assessment of the likelihood of confusion as
amounting to only a speculative, theoretical possibility.
Decision: The refusal to register is reversed.