Honestly Cranberry, LLC

Trademark Trial and Appeal Board

Sep 13, 2017

No. 86868625 (T.T.A.B. Sep. 13, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: September 13, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Honestly Cranberry, LLC
_____

Serial No. 86868625
_____

Rebecca Liebowitz of Venable LLP
for Honestly Cranberry, LLC.
Matthew T. Stigall, Trademark Examining Attorney, Law Office 105,
Jennifer L. Williston, Managing Attorney.
_____

Before Taylor, Kuczma and Adlin,
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Honestly Cranberry, LLC (“Applicant”) seeks registration on the Principal
Register of the mark HONESTLY CRANBERRY (in standard characters with
CRANBERRY disclaimed) for
Dried cranberries in International Class 29.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), citing Registration No.

1 Application Serial No. 86868625 was filed on January 7, 2016, based upon Applicant’s claim
of first use anywhere and use in commerce since at least as early as February 1, 2015.
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3038902 for the mark (BETTER disclaimed) for retail grocery store services
and food products including, “processed, frozen, preserved, canned, dried and candied
fruits” in International Class 29, owned by Dorothy Lane Market, Inc., as a bar to
registration.2

2 Registration No. 3038902 was issued on January 10, 2006, and renewed. The goods covered
in the Registration are: food, namely dairy products, excluding ice cream, ice milk and frozen
yogurt; eggs; whipped topping; margarine substitutes; fruit salads; fresh, canned and bottled
cut fruits; processed, frozen, preserved, canned, dried and candied fruits; raisins; applesauce;
jellies; fruit-based spreads; fruit paste; fruit sauce, namely, cranberry sauce; compotes; fruit
leathers; fresh, canned and bottled cut vegetables; frozen, processed, cooked, preserved and
dried vegetables; salads, except macaroni, rice and pasta salad; cole slaw; dried beans; dried
soybeans; tofu; preserved truffles; processed peppers; processed olives; gherkins; processed
mushrooms; processed potatoes; french fried potatoes; lentils; baked beans; bean dip;
hummus; shelled, roasted and processed nuts; snack mix consisting primarily of processed
fruits, processed nuts and/or raisins; nut butters; tahini; flaked coconut; meat; poultry;
processed meat, namely beef, pork, chicken, turkey, lamb and veal; meat, chicken and fish
croquettes; luncheon meat; bacon; charcuterie; chili; corned beef hash; chow mein; soups;
stews; chowder; foie gras; meat paste; jerky; chicken and dumplings; seafood; sardines; lox;
processed anchovies; anchovy paste; escargot; caviar; frozen, prepared and packaged meals
and entrees consisting primarily of meat, seafood, poultry or vegetables; food package
combinations consisting primarily of cheese, meat and/or processed fruit; cheese and cracker
combinations; cheese fondue; cheese food; cheese spreads; canned pork and beans; protein
based, nutrient-dense snack bars; potato-based snack foods; edible fats and oil; dips,
excluding salsa and other sauces used as dips; garlic-based spread; guacamole; condiments,
namely pepper oil; chicken stock; veal stock; bouillon; clam juice; dairy-based food beverages;
and vegetable-based chocolate food beverages in Class 29; food, namely, yeast; gluten;
processed grains; rolled oats; kasha; grits; hominy grits; polenta; wheat germ other than a
dietary supplement; flour; couscous; oatmeal; malt extracts for food; bakery goods; bread
crumbs; biscuits; wafers; grain-based chips; risotto; rice cakes; rice salad; frozen, prepared
and packaged meals and entrees consisting primarily of pasta or rice; crackers; croutons; food
package combinations consisting primarily of bread, crackers or cookies; cracker and cheese
combinations; ready to eat, cereal derived food bars; rice-based snack foods; pasta; pasta
shells; spaghetti and meatballs; lasagna; calzones; ziti; ravioli; macaroni and cheese; pizza;
pizza dough; pizza crust; pasta salad; gnocchi; noodles; spring rolls; egg rolls; won tons; lo
mein; potstickers; sushi; sandwiches; pot pies; pastries; meat pies; empanadas; enchiladas;
burritos; fajitas; quesadillas; tortillas; nachos; tacos; taco shells; taco chips; tortilla chips;
corn chips; quiche; processed cereals; breakfast cereals; muesli; granola; granola-based snack
bars; waffles; crumpets; pancakes; pancake mixes; bakery deserts; crepes; chocolate-based
ready-to-eat food bars; puddings; parfaits; caramel popcorn; chocolate; chocolate chips;
chocolate covered nuts; chocolate truffles; chocolate-based fillings for cakes and pies; cake
mixes; frostings; candy decorations for cakes; honey; almond paste; marzipan; preserved
ginger; marshmallows; cocoa; cocoa mixes; hot chocolate; coffee; cappuccino; coffee beans;
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After the Examining Attorney made the refusal final, Applicant appealed to this
Board. Applicant and the Examining Attorney submitted briefs. We reverse the
refusal to register.
I. Evidentiary Issue
Before proceeding to the merits, we address an evidentiary matter. As part of its
appeal brief, Applicant included a copy of a “specimen” filed by Registrant.3 The
Examining Attorney objects to this evidence and requests that the Board disregard
it.4 Inasmuch as the specimen included in Applicant’s Brief was not submitted prior
to the filing of this appeal and is not automatically of record, it is untimely and has
not been considered.5 Trademark Board Manual of Procedure (“TBMP”) § 1208.02
(June 2017). The record in an application should be complete prior to the filing of an

espresso; maple syrup; topping syrup; ice cream; ice cream substitute; ice cream drinks;
frozen confections; frozen custards; frozen yogurt; sherbet; sorbet; shakes; popped popcorn;
processed unpopped popcorn; wheat-based snack foods; pretzels; snack mix consisting
primarily of crackers, pretzels, candied nuts and/or popped popcorn; candy coated popcorn;
candy coated apples; candy; candy mints; bubble gum; capers; salad dressings; vinegar; wine
vinegar; marinades; dried chili peppers for use as a seasoning; mayonnaise; horseradish;
tartar sauce; ketchup; gravies; gravy mixes; ham glaze; sauces; tomato sauce; barbecue sauce;
spaghetti sauce; pizza sauce; teriyaki sauce; soy sauce; hot sauce; picante sauce; salsa;
mustard; relish; seasonings; seasoned coating for meat, fish and poultry; spices; salt; pepper;
vanilla beans; processed herbs; processed and powdered ginger, used as an herb, spice and
flavoring; vanilla; cinnamon; nutmeg; and ice cubes; toasted corn kernels in Class 30; food,
namely fresh, raw and unprocessed fruits, vegetables, nuts, garlic, ginger, mushrooms, herbs
and anchovies; fresh truffles; unprocessed chives and cereals; fresh and unprocessed grains
for eating; raw popcorn; live fish for food purposes; live lobsters, shrimp, prawns, oysters and
clams; fish food in Class 31; and retail grocery store services in Class 35.
3 Applicant’s Appeal Brief p. 10 (4 TTABVUE 13).
4 Examining Attorney’s Appeal Brief (6 TTABVUE 7).
5 Even if the specimen was considered, the result in this case would be the same.
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appeal. See In re Fiat Grp. Mktg. & Corp. Commc’ns S.p.A., 109 USPQ2d 1593, 1596
(TTAB 2014); 37 C.F.R. § 2.142(d); TBMP §§1203.02(e), 1207.01.
II. Likelihood of Confusion
Our determination of likelihood of confusion under § 2(d) is based on an analysis
of all of the probative facts in evidence that are relevant to the factors bearing on the
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 Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the nature of the goods. Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). In this case, there is also evidence
concerning the similarity of the trade channels and the strength of Registrant’s mark.
A. Similarity and Nature of the Goods and the Channels of Trade
Applicant seeks to register its mark for “dried cranberries” in International Class
29. Registrant’s mark is registered for food products including “dried and candied
fruits” in Class 29. Inasmuch as Registrant’s “dried and candied fruits” encompass
Applicant’s more narrowly defined “dried cranberries,” the goods are legally identical.
Unrestricted and broad identifications are presumed to encompass all goods of the
type described. See In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006)
(citing In re Elbaum, 211 USPQ 639, 640 (TTAB 1981)); In re Linkvest S.A., 24
USPQ2d 1716, 1716 (TTAB 1992).
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Further, because the goods are legally identical, it is presumed that they travel in
the same channels of trade to the same class of purchasers. In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (Board entitled to rely on this
legal presumption). This presumption is corroborated by the evidence of record, which
establishes that the goods are marketed to the same consumers in the same channels
of trade as Registrant’s goods.6
In view of the foregoing, the factors of the similarity of goods and the similarity of
trade channels and customers favor a finding of likelihood of confusion.
B. Similarity of the Marks
Marks are compared in their entireties for similarities in appearance, sound,
connotation, and commercial impression. Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm
Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F. 3d 1369,
73 USPQ2d 1689, 1691 (Fed. Cir. 2005)). When the goods are legally identical, the
degree of similarity between the marks necessary to support a determination that
confusion is likely declines. See Bridgestone Americas Tire Operations, LLC v. Fed.

6 The evidence confirms that dried cranberries are a type of dried fruit sold alongside many
other dried fruits and combinations of dried fruits. The Examining Attorney produced
website evidence showing third-parties offering dried cranberries as well as other types of
dried fruits for sale. For example, website printouts from Bella Viva Orchards, Nuts.com,
Nuts in Bulk, and NutsTop.com, Eden Foods, Hadley Fruit Orchards, Melissa’s, Paradise,
Sid Wainer & Son (Jansal Valley brand), Tierra Farm, Traina Foods, and Woodstock Foods,
all feature dried cranberries for sale alongside a variety of other dried fruits. Thus,
Registrant’s dried fruits encompass Applicant’s dried cranberries confirming that the goods
are legally identical. May 3, 2016 Office Action at 9-11, 12-15, 16-17, 18-19; September 21,
2016 Final Office Action at 7-9, 10-13, 19-22, 29-32, 33-37, 38-42, 43-47, and 54-55.
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Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); In re Viterra Inc., 101
USPQ2d at 1908; In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed.
Cir. 2010).
Applicant argues that the stylized nature of Registrant’s mark distinguishes it
from Applicant’s standard character word mark. However, a standard character
mark, like Applicant’s mark, generally will not avoid a likelihood of confusion with a
mark presented in stylized characters, like Registrant’s mark, because the rights in
standard character marks reside in the wording or literal element(s) and not in any
particular display or rendition. As such, Applicant’s mark could be presented in the
same font, style and size as shown in Registrant’s mark. See In re Viterra Inc., 101
USPQ2d at 1909; In re Mighty Leaf Tea, 94 USPQ2d at 1260 (rejecting an argument
that the specific style of a registered mark could serve to distinguish the applicant’s
mark in standard character form); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ
937, 939 (Fed. Cir. 1983) (“the argument concerning a difference in type style is not
viable where one party asserts rights in no particular display”).
Additionally, the word “CRANBERRY” in Applicant’s mark has little if any
source-identifying significance because it is highly descriptive, if not generic, for dried
cranberries, as reflected by Applicant’s disclaimer of “Cranberry.” Similarly,
Registrant has disclaimed the laudatory term “BETTER” in its mark. Applicant
admits that “[i]t is not in dispute that ‘CRANBERRY’ is generic and ‘BETTER’ is
laudatory.”7

7 Applicant’s Appeal Brief p. 7 (4 TTABVUE 10).
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Disclaimed matter that is descriptive or laudatory of a party’s goods is typically
less significant or less dominant when comparing marks. See Citigroup Inc. v. Capital
City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1257 (Fed. Cir. 2011); In re
Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (finding
“delta” the dominant part of the mark “THE DELTA CAFÉ because CAFÉ was
disclaimed”). Greater weight is often given to the dominant feature when determining
whether marks are confusingly similar. See In re Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985). Here, the marks share a similar structure, with
the same lead element and dominant term “Honestly” followed by disclaimed matter.
While the second word in each mark is disclaimed and therefore accorded less
weight, the disclaimers do not remove these terms from the marks. Therefore, we
must compare the marks HONESTLY CRANBERRY and in their entireties.
Applicant’s mark HONESTLY CRANBERRY informs the consumer that the product
involves cranberries. On the other hand, Registrant’s mark is a general
laudatory expression that is directed to a wide variety of food products. Thus, when
viewing the marks in their entireties they render somewhat different overall
commercial impressions. However, inasmuch as both marks are comprised of two
words beginning with the identical nondescriptive word “HONESTLY” followed by
descriptive terms, they are more similar than dissimilar.
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C. Number and Nature of Similar Marks in Use on Similar Goods
The strength or weakness of the marks is probative of the likelihood of confusion.”
Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674
(Fed. Cir. 2015); du Pont, 177 USPQ at 567.
‘“[A] real evidentiary value of third party registrations per se is to show the sense
in which … a mark is used in ordinary parlance.’ 2 MCCARTHY ON TRADEMARKS AND
UNFAIR COMPETITION § 11:90 (4th ed. 2015) (emphasis added).” Juice Generation, 115
USPQ2d at 1675. Third-party registrations may be relevant to show that the mark
or a portion of the mark is descriptive, suggestive, or so commonly used that the
public will look to other elements to distinguish the source of the goods or services, in
the same way dictionary definitions are used to illustrate how a term is perceived in
the trade or industry, and therefore, may be considered somewhat weak. Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports,
S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (evidence of third-
party registrations is relevant to show the sense in which a mark is used in ordinary
parlance; that is, some segment that is common to both parties’ marks may have a
normally understood and well-recognized descriptive or suggestive meaning); Juice
Generation, 115 USPQ2d at 1675 (third-party registration evidence may show that a
term carries a highly suggestive or descriptive connotation in the relevant industry
and therefore may be considered somewhat weak); Tektronix, Inc. v. Daktronics, Inc.,
534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976) (the thirty-eight third-party
registrations provide at least some evidence that thirty-eight applicants considered
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the suffixes of the parties’ marks to be suggestive of electrical products); see also
Conde Nast Publications, Inc. v. Miss Quality, Inc., 597 F.2d 1404, 184 USPQ 422,
425 (CCPA 1975) (third-party registrations used to show meaning in the same way
dictionaries are used); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110
USPQ2d 1458, 1471 (TTAB 2014) (registrations have some value because they may
be used in the manner of a dictionary to show that a mark or a portion of a mark is
descriptive or suggestive of goods); In re Box Solutions Corp., 79 USPQ2d 1953, 1955
(TTAB 2006) (third-party registrations can be used in the manner of a dictionary
definition to illustrate how a term is perceived in the trade or industry); United Foods
Inc. v. J.R. Simplot Co., 4 USPQ2d 1172, 1174 (TTAB 1987) (the existence of
numerous third party registrations in the food field for marks which include “QUICK”
as a portion thereof, (including a number of marks which include “QUICK ‘N”),
buttresses the conclusion that “QUICK” is a highly suggestive term, and these
registrations are entitled to some weight for that purpose).
Here, each mark incorporates the term HONESTLY as part of a composite mark
that includes another descriptive or laudatory word. In support of the weakness of
Registrant’s mark, Applicant relies on a number of third-party registrations for
marks beginning with HONESTLY- and HONEST- for food products. These include
twelve registrations (owned by six different registrants) for marks beginning with
HONEST-8 and five third-party registrations (owned by four different owners) for

8 Registration Nos. 4266086 for Honest Earth & Design for instant potatoes, processed
potatoes, dehydrated potatoes (Class 29), 4273775 for HONEST EARTH for instant potatoes,
processed potatoes, dehydrated potatoes (Class 29), 4403535 for Honest Earth & Design for
dehydrated and processed potatoes, processed potato mixes (Class 29), owned by Idahoan
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marks beginning with HONESTLY- (see chart below). The similarities between the
marks in the registrations and Registrant’s mark supports a finding that marks
containing HONESTLY- and HONEST- for food products are weak. While all of the
marks are relevant, the following marks, each beginning with the HONESTLY-
formative followed by a general descriptive or laudatory term, are the most pertinent:
Registration No. Mark Goods Class Owner
3838635 HONESTLY
SWEET
Natural sweetener 30 Cargill,
Incorporated
4419971 HONESTLY
GOOD
Frozen prepared entrees
consisting primarily of
meat, fish, seafood,
poultry, or vegetables
29 Societe des
Produits
Nestle S.A.
4419975

Frozen prepared entrees
consisting primarily of
meat, fish, seafood,
poultry, or vegetables
29 Societe des
Produits
Nestle S.A.

Foods, LLC; 4695900 for HONEST SWEETS for candies, candy, candy bars, sweets (Class
30), owned by Iconic Candy, LLC; 4776088 for HONEST CHOPS & Design for all natural
meats (Class 29), 4785872 for HONEST PREP for all natural meats (Class 29), owned by
Honest Chops International LLC; 5056243 for HONEST CATCH for frozen fish, frozen
shellfish, seafood, not live, shellfish for human consumption, not live, frozen shellfish (Class
29), owned by Gourmet Fusion Foods, Inc.; 3696281 for HONEST BEVERAGES for tea-based
beverages (Class 30), non-alcoholic, organic beverages containing fruit juices (Class 32),
3745345 for HONEST KOMBUCHA for tea-based beverages (Class 30), 3949984 for
HONEST FOOD for packaged nutritional food bars for use as a meal replacement made from
vegetables (Class 5), packaged fruit-based food bars (Class 29), 4076733 for HONEST for tea
and tea-based beverages, herbal teas (Class 30), nonalcoholic beverages containing fruit
juices (Class 32), owned by Honest Tea, Inc.; and 2132526 for HONEST JOE COFFEE for
coffee (Class 30), restaurant services (Class 42) owned by Bagel Works, Inc.
Registration Nos. 4009762 for HONEST EARTH for coffee offered through hotels, resorts,
and other facilities that provide accommodation, and 4313731 for FRUITFULLY HONEST
for fruit-based snack-food (Class 29), grain-based snack food, bakery products, snack cakes,
and confectioneries, namely, yogurt enrobed fruit pieces and chocolate enrobed fruit pieces
(Class 30), were not considered as they respectively are for coffee offered by places providing
accommodation, and for a mark which does not begin with HONEST. Serial No. 86851237
for HONEST HARVEST owned by Bay Valley Foods, LLC has been abandoned and therefore
is not considered.
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4732054 HONESTLY
DELICIOUS
Dough 30 Immaculate
Baking
Company
4953129 HONESTLY
CRAFTED
Candy 30 YummyEarth,
Inc.

Each of the foregoing five registrations, with the exception of Registration No.
3838635, covers products that are also mentioned in the cited Registration namely,
frozen, prepared and packaged meals and entrees consisting primarily of meat,
seafood, poultry or vegetables; pizza dough; and candy. The fifth registration for
HONESTLY SWEET is for “natural sweetener” classified in Class 30, which is related
to the products contained in the cited Registration, particularly “chocolate-based
fillings for cakes and pies; cake mixes; frostings; candy decorations for cakes;
honey…coffee”.9 Likewise, the goods set forth in the third-party registrations for the
registered HONEST- marks, namely, coffee, tea, processed potatoes, candy, meat,
frozen fish and seafood, are identical or closely related, to the goods covered in the
cited registration.
The five registrations for the HONESTLY- marks owned by four different owners,
together with the twelve third-party registrations for HONEST- marks owned by six
different owners, all for food products, show that Registrant’s HONESTLY BETTER
mark is weak. Thus, the “BETTER” and “CRANBERRY” wording in Registrant’s and
Applicant’s marks, despite their disclaimers, have heightened significance in
differentiating the marks. Even where, as here, the record lacks proof of actual third-

9 See https://tmidm.uspto.gov/id-master-list-public.html.
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party use, the third-party registration evidence showing similar marks on the same
or related goods, is relevant to show the sense in which a mark is used in ordinary
parlance, that is, some segment that is common to both parties’ marks may have a
normally understood and well-recognized descriptive or suggestive meaning, leading
to the conclusion that that segment is relatively weak. Jack Wolfskin, 116 USPQ2d
at 1136 citing Juice Generation, 115 USPQ2d at 1675.
Therefore, based on the number of third-party registrations for marks beginning
with HONESTLY- or HONEST- that cover identical and/or related goods to
Registrant’s and Applicant’s goods, customers will distinguish the marks as
representing two different sources of the goods. Thus, this du Pont factor favors a
finding of no likelihood of confusion.
III. Conclusion
While Applicant’s goods and the goods covered by the cited registration are legally
identical in part and otherwise related, and are presumed to travel in the same trade
channels to the same customers, the modest similarity between the marks is not
enough for us to find a likelihood of confusion, because the shared term HONESTLY
is so weak. Therefore, the addition of the word CRANBERRY in Applicant’s mark is
sufficient to distinguish it from the cited mark, notwithstanding the fact that the
distinguishing portions of both Applicant’s and Registrant’s marks have been
disclaimed.
Decision: The refusal to register Applicant’s mark HONESTLY CRANBERRY
under § 2(d) is reversed.