Just Goods, Inc.

Trademark Trial and Appeal Board

Feb 23, 2017

No. 86348671 (T.T.A.B. Feb. 23, 2017)

This Opinion is not a
Precedent of the TTAB

Hearing: January 11, 2017 Mailed: February 23, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Just Goods, Inc.
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Serial No. 86348671
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Jill M. Pietrini, Sheppard Mullin Richter & Hampton LLP,
for Just Goods, Inc.

Michael Eisnach, Trademark Examining Attorney, Law Office 104,
Dayna Browne, Managing Attorney.
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Before Quinn, Lynch, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Just Goods, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark BETTER FOR EVERYONE in standard characters for goods identified as
“antipasto, beverages consisting principally of milk, bottled fruits, butter, cheese,
dairy-based dips, dairy-based spreads, dried fruits, eggs, fruit and soy based snack
food, fruit spreads, fruit-based meal replacement bars, fruit-based organic food bars,
jellies and jams, jerky, meat, milk, olive oil, pate, peanut butter, pickles, poultry,
prepared nuts, seafood not live, shakes, sliced meat, snack dips, tofu, vegetable chips,
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yogurt-based beverages, condiments and snack foods, namely, artichoke paste, chili,
olive paste, tapenade, vegetable condiments in the nature of vegetable-based spreads,
condiment sauces, namely, vegetable based snackfoods,” in International Class 29.1
The Examining Attorney has refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. Section 1052(d), on the ground that Applicant’s mark so
resembles the mark BETTER FOR YOU, BETTER FOR EVERYONE in standard
characters for “meat substitutes; protein for use as an ingredient in cooking, baked
goods and as a meat additive; protein food products, namely, chopped beef substitute,
chicken substitute, pork substitute, crab substitute, lamb substitute, fish substitute,
sausage substitute, meat substitutes, ham substitute, bacon substitute, veal
substitute,” in International Class 29, shown in Registration No. 3485999,2 as to be
likely, when used in connection with Applicant’s goods, to cause confusion, mistake,
or deception.
After the Examining Attorney made the refusal final, Applicant timely appealed
and requested reconsideration, which was denied. The case is fully briefed, and
counsel for Applicant and the Examining Attorney appeared at an oral hearing before
the panel on January 11, 2017. We affirm the refusal to register.

1 Applicant Serial No. 86348671 was filed on July 25, 2014 under Section 1(b) of the
Trademark Act, 15 U.S.C. Section 1051(b), on the basis of Applicant’s allegation of a bona
fide intention to use the mark in commerce.
2 The cited registration issued on August 12, 2008. A combined declaration under Sections 8
and 15 of the Trademark Act was accepted and acknowledged by the Patent and Trademark
Office on May 8, 2014.
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I. Prosecution History and Record on Appeal
Applicant initially sought registration of its mark for goods identified as
“Antipasto, beverages consisting principally of milk, bottled fruits, butter, cheese,
dairy-based dips, dairy-based spreads, dried fruits, eggs, fruit and soy based snack
food, fruit spreads, fruit-based meal replacement bars, fruit-based organic food bars,
jellies and jams, jerky, meat, milk, olive oil, pate, peanut butter, pickles, poultry,
prepared nuts, seafood not live, shakes, sliced meat, snack dips, soups, tofu, vegetable
chips, yogurt-based beverages.”
On November 12, 2014, the Examining Attorney issued a first Office Action in
which he refused registration under Section 2(d) of the Trademark Act on the basis
of the cited registration. The Examining Attorney made of record third-party
Registration Nos. 1882370, 3858512, 4071287, 3122724, 3228760, and 4616721,
whose identifications of goods include both meat substitutes and one or more of the
goods identified in Applicant’s application, TSDR 4-18, and pages from the websites
of Turtle Island Foods, Inc. (www.tofurky.com) and Lightlife (www.lightlife.com),
which the Examining Attorney claimed showed the sale of meat substitutes in sliced
form. TSDR 19-24.
The Examining Attorney issued a second Office Action on January 9, 2015 making
final the refusal to register under Section 2(d).3 The Examining Attorney made of
record third-party Registration Nos. 2160601, 3642229, 4376063, 4480318, and

3 This Office Action was apparently issued in response to Applicant’s filing on December 2,
2014 of an Optional Declaration in support of its application.
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4660895, whose identification of goods include both “meat substitutes” and one or
more of the goods identified in Applicant’s application, TSDR 3-22, and pages from
the websites of Amy’s Organics (www.amys.com) and Cadia (http://mycadia.com),
which the Examining Attorney claimed showed the production and sale of both meat
substitutes and one or more of Applicant’s goods under the same mark. TSDR 2, 23-
45.
On March 17, 2015, Applicant’s counsel and the Examining Attorney had a
telephone call to discuss the second Office Action as well as Applicant’s co-pending
Application Serial No. 86348672 to register BETTER FOR EVERYONE for various
goods in Class 30.4 On July 9, 2015, Applicant filed a Notice of Appeal from the final
refusal to register and a Request for Reconsideration.5 In the Request for
Reconsideration, Applicant requested amendment of this application to include the
goods identified in Application Serial No. 86348672 as “condiments” and “snackfoods”
(as further clarified by Applicant in the Request for Reconsideration) through
transfer of those goods from the co-pending application to this application, argued
that the January 9, 2015 Office Action making final the refusal of registration should
not have been issued, and responded to the final refusal on the merits. Applicant

4 That application and another application filed by Applicant, Application Serial No.
86348673 to register BETTER FOR EVERYONE for various goods in Class 32, have been
allowed, and are not before us on this appeal. Because both Applicant and the Examining
Attorney discussed these applications in their briefs and at the oral hearing, we address them
briefly below in response to Applicant’s claim that the Patent and Trademark Office has been
inconsistent in its determination of the registrability of Applicant’s mark.
5 On July 20, 2016, the Board instituted the appeal, suspended it, and remanded the
application to the Examining Attorney for consideration of the Request for Reconsideration.
2 TTABVUE.
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made of record the specimen of use from the file history of the cited registration, and
174 certificates of registration of third-party marks for goods in Class 29 that
Applicant stated contained “BETTER” or “EVERYONE.” 4 TTABVUE 19-198.6
On August 10, 2015, the Examining Attorney issued a third Office Action in
response to Applicant’s Request for Reconsideration. The Examining Attorney
rejected Applicant’s proposed amendment to the identification of goods on the ground
that it exceeded the original scope of the goods, and continued the refusal under
Section 2(d). Applicant responded to this Office Action on February 9, 2016 and
argued against the refusal to accept the amendment to the identification of goods as
well as the Section 2(d) refusal. Applicant again offered the registrant’s specimen of
use as well as the third-party registrations discussed above.
On March 8, 2016, the Examining Attorney issued a fourth Office Action in which
he accepted Applicant’s amendment to its identification of goods and again made final
the refusal to register under Section 2(d). The Examining Attorney made of record
pages from the websites of The New York Times (nytimes.com), International
Supermarket News (internationalsupermarketnews.com), and Global Meat News
(globalmeatnews.com), 5 TTABVUE 6-22, and from the retailers Vermont Soy
(vermontsoy.com) and Small Planet (smallplanettofu.com), 5 TTABVUE 23-32, which
the Examining Attorney claimed showed that tofu was a meat substitute and that

6 Because Applicant made of record copies of registration certificates rather than pages from
the Patent and Trademark Office’s TSDR database, we cannot determine from the record
whether the registrations are subsisting, and we do not take judicial notice of the status of
third-party registrations. Trademark Board Manual of Procedure § 704.12(a), n. 1 at 700-118
(January 2017). The Examining Attorney did not dispute that they are subsisting, however,
so we will treat them as such in this decision.
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producers and sellers of meat substitutes also produce and sell other goods identified
in Applicant’s application, as well as pages from the website of the Chicago Tribune
(chicagotribune.com), which the Examining Attorney claimed showed that jerky has
been deemed to be a health food. 5 TTABVUE 59-64.7 The appeal was subsequently
resumed.
II. Likelihood of Confusion Analysis
Section 2(d) of the Trademark Act prohibits the registration of a mark that so
resembles a registered mark as to be likely, when used in connection with the goods
or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C. §
1052(d). Our determination of likelihood of confusion under § 2(d) is based upon an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). We consider each du Pont factor that is relevant and
for which there is record evidence. See, e.g., M2 Software, Inc. v. M2 Communications,
Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v.
GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015).
In every case under Section 2(d), two key considerations are the similarities
between the marks and the similarities between the goods or services. See Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)

7 The Examining Attorney also made of record Wikipedia pages and pages from the websites
of Business Insider, Boon Tong Kee, and The Straits Times to show that the goods identified
in Applicant’s co-pending Application Serial No. 86348672 as “soya bean paste” were a
condiment, not a meat substitute. This evidence is not directly relevant to the issues on this
appeal.
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(“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”).
On the record here, the du Pont factors regarding the channels of trade and classes
of customers for the goods, the degree of care in purchasing the goods, and the nature
and number of third-party marks in use on similar goods are also relevant.8 We begin
with the issue of the similarity of the goods.
A. Similarity of the Goods
Our determination of the similarity of the goods is based upon the identifications
of goods in the application and in the cited registration. Stone Lion Capital Partners,
LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014);
Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990). The goods do not have to be identical or even competitive for
confusion to be likely. “[L]ikelihood of confusion can be found ‘if the respective goods
are related in some manner and/or if the circumstances surrounding their marketing
are such that they could give rise to the mistaken belief that they emanate from the
same source.’” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d
1715, 1724 (TTAB 2007)). “The goods need only be sufficiently related that consumers
would be likely to assume, upon encountering the goods under similar marks, that

8 Applicant also argues that the du Pont factor regarding the fame of the cited mark is
relevant, but for the reasons discussed below, we find that this factor is neutral in our
analysis of likelihood of confusion on the record here.
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the goods originate from, are sponsored or authorized by, or are otherwise connected
to the same source.” In re Davia, 110 USPQ2d 1810, 1815 (TTAB 2014) (citing Coach).
The identification of goods in the application is “antipasto, beverages consisting
principally of milk, bottled fruits, butter, cheese, dairy-based dips, dairy-based
spreads, dried fruits, eggs, fruit and soy based snack food, fruit spreads, fruit-based
meal replacement bars, fruit-based organic food bars, jellies and jams, jerky, meat,
milk, olive oil, pate, peanut butter, pickles, poultry, prepared nuts, seafood not live,
shakes, sliced meat, snack dips, tofu, vegetable chips, yogurt-based beverages,
condiments and snack foods, namely, artichoke paste, chili, olive paste, tapenade,
vegetable condiments in the nature of vegetable-based spreads, condiment sauces,
namely, vegetable based snackfoods.” The identification of goods in the cited
registration is “meat substitutes; protein for use as an ingredient in cooking, baked
goods and as a meat additive; protein food products, namely, chopped beef substitute,
chicken substitute, pork substitute, crab substitute, lamb substitute, fish substitute,
sausage substitute, meat substitutes, ham substitute, bacon substitute, veal
substitute.”
The Examining Attorney argues that “[s]ome of the goods are broader than and
would include a portion of the goods in the instant application,” citing “meat
substitutes,” which he argues are “highly related to applicant’s ‘tofu’ as tofu is
commonly used as a meat substitute.” 10 TTABVUE 11. The Examining Attorney
further argues that the “goods at issue are also related because they commonly come
Serial No. 86348671
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from a single source and move in the same channels of trade to the same purchasers.
10 TTABVUE 11, citing the Internet evidence and third-party registrations of record.
Applicant argues that the goods “are not at all similar,” claiming that the goods
in the cited registration “are clearly intended for those who seek meat, fish, and
seafood replacements,” while “Applicant offers ‘meat’, ‘sliced meat’, ‘poultry’
and ‘jerky’.” 8 TTABVUE 12 (emphasis in original). According to Applicant, its
“remaining products are not any more similar to Registrant’s meat substitute
products than any other products found in grocery store[s]” and it is “obvious that
Registrant’s products are a specialized form of food directed to consumers who do not
eat meat, fish or seafood.” 8 TTABVUE 11. In its reply brief, Applicant argues that
its goods “are fundamentally different from Registrant’s products.” 11 TTABVUE 3.
The sole case cited by Applicant in support of its arguments is California Prune
and Apricot Growers Ass’n v. Albany Packing Co., 41 USPQ 514 (Comm’r Pat. 1939).
8 TTABVUE 11; 11 TTABVUE 4.9 In that case, the Assistant Commissioner for
Patents found that hams, pork shoulders, and picnics, and dried fruits were not
“merchandise of the same descriptive properties within the meaning of” the 1920
Trademark Act. Id. at 515. The “same descriptive properties” standard for
relatedness under the 1920 Trademark Act no longer applies, and this decision does
not aid us in our analysis of the similarity of the goods under the relevant Federal

9 Applicant cites this case as a decision of the United States Court of Customs and Patent
Appeals, but it was actually decided by the Assistant Commissioner for Patents under the
procedure for deciding inter partes proceedings in the Patent and Trademark Office that
existed prior to the enactment of the Lanham Act in 1946 and the subsequent creation of the
Trademark Trial and Appeal Board.
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Circuit and Board cases regarding this du Pont factor, which Applicant never
discusses.10
Neither the identification of goods in the application nor the identification of goods
in the cited registration contains restrictions or limitations of any sort. “Where the
goods in the application at issue and/or in the cited registration are broadly identified
as to their nature and type, such that there is an absence of any restrictions as to the
channels of trade and no limitation as to the classes of purchasers, it is presumed
that in scope the identification of goods encompasses not only all the goods of the
nature and type described therein, but that the identified goods are offered in all
channels of trade which would be normal therefor, and that they would be purchased
by all potential buyers thereof.” In re Jump Designs LLC, 80 USPQ2d 1370, 1374
(TTAB 2006); see also Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464,
1472 (TTAB 2016) (goods identified in registration as “ice cream” deemed to include
“ice cream of all types”).
The registration includes goods identified broadly as “meat substitutes.” The
evidence of record shows that “tofu,” one of the goods identified in the application, is
a type of meat substitute. The New York Times article entitled “Giving Tofu the New
Look It Deserves” in the record states that “[w]ith meat substitutes and even
alternative animal protein like bugs surging in popularity -- or at least media

10 We also note that the goods at issue in California Prune, meats and dried fruits, are both
included within the identification of goods in Applicant’s application, suggesting that the
relatedness of food products may have changed as a factual matter in the nearly 80 years
since the decision.
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attention -- it’s time to reevaluate and finally embrace the original plant-based mock
meat” and that “what’s inarguable is that tofu is our most versatile form of nonanimal
concentrated protein, as well as the least processed and the most traditional.” 5
TTABVUE 17-18. The article discusses using tofu as a substitute for meat in chorizos
and tacos, and states that by doing so “[y]ou’ll have saved money and cooked a product
with a lighter carbon footprint, no animal welfare issues, and fewer health threats
than any meat.” 5 TTABVUE 19. The article also states that a “good meat substitute
should at least occasionally offer some real chew, and one of the common complaints
about tofu is that to make it chewy you have to process it somehow,” and that the
author has “developed a tofu jerky recipe that’s nearly as tough as beef jerky.” 5
TTABVUE 20-21. The articles from the websites of International Supermarket News
and Global Meat News.com in the record corroborate that tofu is a type of meat
substitute.
Applicant indirectly acknowledges this evidence, but does not controvert it. 11
TTABVUE 4. Applicant instead argues that the Examining Attorney “is overreaching
by likening Applicant’s ‘tofu’ products as [sic] a meat substitute” because “Registrant
has not identified ‘tofu’ as a meat substitute” and because the Examining Attorney is
“reading in a limitation to the identification of goods to support his argument, which
is improper.” 11 TTABVUE 5 (emphasis in original). This argument misinterprets
the identification of goods in the registration.
The goods identified in the registration as “meat substitutes” at the beginning of
the identification are separated from the remaining goods by a semicolon. “Under
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standard examination practice, a semicolon is used to separate distinct categories of
goods or services.” In re Midwest Gaming & Entmt. LLC, 106 USPQ2d 1163, 1166
(TTAB 2013). We thus must assume that “meat substitutes” covers a distinct category
of goods separate and apart from the goods identified in the registration as “protein
food products,” which include goods identified as substitutes for specific types of
meats and seafood, such as “chicken substitute” and “crab substitute.”11 The goods
separately identified as “meat substitutes,” which “are broadly identified as to their
nature and type,” are presumed to encompass in scope “all the goods of the nature
and type described therein . . .” Jump Designs, 80 USPQ2d at 1374. Finding tofu to
be a type of meat substitute on the basis of the uncontroverted evidence does not limit
the identification of goods, but simply includes tofu as one of the goods encompassed
within that broad identification.
Because the goods identified as “meat substitutes” in the registration encompass
the goods identified as “tofu” in the application, those goods are legally identical. See,
e.g., Midwest Gaming, 106 USPQ2d at 1167 (unrestricted “bar and restaurant
services” in cited registration found to encompass and to be legally identical to “bars
services located in a casino” identified in application). The legal identity of these
goods is a sufficient basis for finding that this du Pont factor favors a finding of a
likelihood of confusion. In a single-class application such as this one, “[l]ikelihood of
confusion must be found if there is likelihood of confusion involving any item that
comes within the identification of goods in the involved application.” Jump Designs,

11 The term “meat substitutes” also appears in this portion of the identification.
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80 USPQ2d at 1374 (citing Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648
F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)); see also In re Aquamar, Inc., 115
USPQ2d 1122, 1126 n.5 (TTAB 2015) (“in view of our findings with respect to
Applicant’s fresh processed fish and frozen fish and Registrant’s non-live fish and
frozen fish, we need not make a determination as to Applicant’s remaining goods as
it is sufficient for finding a likelihood of confusion if relatedness is established for any
item encompassed by the identification of goods within a particular class in the
application.”).
We also find that a number of the remaining goods in the application are related
to meat substitutes and the other goods identified in the cited registration. In
addition to meat substitutes, the cited registration covers a second distinct category
of goods identified as “protein for use as an ingredient in cooking, baked goods and as
a meat additive.” As these goods are described, they are added to meat and poultry (a
type of meat), both of which goods are identified in the application. Such conjoint use,
explicitly stated in the identification, supports a finding that the protein goods
identified in the registration are related to the meat and poultry identified in the
application. See In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ
1289, 1290 (Fed. Cir. 1984) (“we take notice that the products ‘bread’ and ‘cheese’ are
often used in combination. Such complementary use has long been recognized as a
relevant consideration in determining likelihood of confusion.”); Davia, 110 USPQ2d
at 1815 (agave sweeteners and pepper sauce are related goods because they are
commonly used together as condiments).
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Finally, while we agree with Applicant that the relatedness of food products
cannot be based solely upon the “fact that Applicant’s products and Registrant’s
products could be similarly packaged and could be sold in the same stores . . .,” 11
TTABVUE 5, the Examining Attorney made of record evidence to show that meat
substitutes (including tofu) and a number of the goods identified in the application
are frequently sold by the same company under the same mark. This evidence
includes 10 use-based third-party registrations of marks for meat substitutes and/or
other goods identified in the cited registration, and one or more goods identified in
the application. In addition to these registrations, three of the registrations made of
record by Applicant for another purpose also cover both meat substitutes and one or
more of the goods identified in the application. We summarize all of them below, with
the relevant goods in the third-party registrations identified:
Registration No. 18821370
Meat substitutes, and eggs and snacks
consisting primarily of soya and
vegetables.
Registration No. 3858512
Meat substitutes, and nuts, snack dips
and snack mixes, soups, tofu, and
vegetable chips.
Registration No. 4071287
Meat substitutes (including tofu), and
processed fruit based ready to eat food
bars, fruit based organic ready to eat
food bars, jams, jellies, fruit spreads,
processed nuts, and peanut butter.
Registration No. 3228760
Meat substitutes, and meat and cheese
food.
Registration No. 4616721
Meat substitutes (including tofu), and
bean dips.
Registration No. 2160601
Meat substitutes, and dried fruits, fruit
based snack foods, fruit-based spreads,
jellies, jams, tofu, seafood, soups, meat,
poultry, cheese, milk, and eggs.
Serial No. 86348671
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Registration No. 3642229
Meat substitutes, and dried fruit, fruit-
based organic food bars, meat, fish,
jams, and vegetable chips.
Registration No. 4376063
Meat substitutes, and bottled fruits,
meat, poultry, fruit jellies, jams, fruit-
based organic food bars, eggs, sliced
meat, and vegetable chips.
Registration No. 4480318
Meat substitutes, and antipasto, butter,
cheese, dairy-based dips, dairy-based
snack foods, dried fruits, eggs, fruit and
soy based snack foods, fruit-based meal
replacement bars, fruit-based organic
food bars, jellies, jams, jerky, meat, milk
shakes, olive oils, peanut butter,
poultry, prepared nuts, seafood not live,
sliced meat, snack dips, tofu, vegetable
chips, and yogurt-based beverages.
Registration No. 4660895
Meat substitutes, and dried fruit, fruit
and soy based snack foods, jerky, meat,
and processed seafood.
Registration No. 4733150
Meat substitutes, and fruit and soy
based snack food.
Registration No. 4275968
Vegetable-based meat substitutes, and
beef, sliced meat, and chicken.
Registration No. 3038902
Tofu (a meat substitute), and eggs, dried
fruit, meat, poultry, soups, seafood, and
dips.
“‘‘Third-party registrations which cover a number of different goods and/or
services, and which are based on use in commerce, although not evidence that the
marks shown therein are in use on a commercial scale or that the public is familiar
with them, may nevertheless have some probative value to the extent that they serve
to suggest that such goods or services are of a type which may emanate from a single
source.’” In re i.am.symbolic, llc, 116 USPQ2d 1406, 1412 (TTAB 2015) (quoting In re
Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988)); see also Aquamar,
Serial No. 86348671
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115 USPQ2d at 1126 n.5; In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB
2009); In re Accelerate s.a.l., 101 USPQ2d 2047, 2050 (TTAB 2012).
The Examining Attorney also made of record Internet evidence of use by third
parties of the same mark for types of meat substitutes, and one or more of the goods
identified in the application. Pages from this evidence are reproduced below:

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Like the third-party registration evidence, the Internet evidence is competent to show
that the goods are related. See, e.g., Davey, 92 USPQ2d at 1203.
Applicant acknowledges this evidence, but again does not controvert it. 11
TTABVUE 4. Applicant instead argues that Applicant’s non-meat “products are not
any more similar to Registrant’s meat substitute products than any other products
found in grocery store[s],” and that “[t]o say that all other non-meat and non-seafood
products identified in Applicant’s application are related to Registrant’s goods ignores
the case law and market realities.” 8 TTABVUE 12-13. In Applicant’s reply brief,
Applicant again cites California Prune and argues that to “take the Examiner’s
argument to its logical conclusion, any product that could be consumed instead of
meat is related to meat substitute products. That argument stretches the related
goods doctrine too far.” 11 TTABVUE 4-5.
Applicant’s arguments are unconvincing. As discussed above, the case upon which
Applicant relies has no viability today, and Applicant points to no evidence in the
record establishing the “market realities” to which it refers. The Examining Attorney
does not argue, and we do not find, that “all other non-meat and non-seafood products
identified in Applicant’s application are related to Registrant’s goods” or that “any
product that could be consumed instead of meat is related to meat substitute
products.” The record is sufficient to show, however, that meat substitutes (including
tofu), and at least some of the goods identified in the application are related goods
because they are goods that frequently emanate from a single source under the same
mark.
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The goods identified as “meat substitutes” in the cited registration encompass the
goods identified as “tofu” in the application, making those goods legally identical; the
goods identified in the registration as “protein for use as an ingredient in cooking,
baked goods and as a meat additive” are complementary in use to the goods identified
in the application as “meat” and “poultry;” and the goods identified in the registration
as “meat substitutes” are related to a number of the goods identified in the
application. This du Pont factor supports a finding of a likelihood of confusion. We
turn now to the du Pont factor regarding similarity of the marks.
B. Similarity of the Marks
This factor focuses on “‘the similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and commercial impression’.” Palm
Bay Imps. Inc. v. Veuve Cliquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). In a
particular case, “‘two marks may be found to be confusingly similar if there are
sufficient similarities in terms of sound or visual appearance or connotation,’” In re
Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016) (quoting Kabushiki Kaisha
Hattori Seiko v. Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB 1991), aff’d mem.,
979 F.2d 216 (Fed. Cir. 1992) (citation omitted)), and “any one of these means of
comparison may be critical in finding the marks to be similar.” M.C.I. Foods, Inc. v.
Bunte, 96 USPQ2d 1544, 1550-51 (TTAB 2010) (citing In re White Swan Ltd., 8
USPQ2d 1534, 1535 (TTAB 1988)).
Serial No. 86348671
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“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach, 101 USPQ2d at 1721 (quotation omitted). “The focus is
on the recollection of the average purchaser, who normally retains a general rather
than a specific impression of trademarks.” i.am.symbolic, 116 USPQ2d at 1409. The
legal identity of the goods identified as “meat substitutes” and “tofu” reduces the
degree of similarity between the marks necessary for confusion to be likely as to those
goods. See, e.g., Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350,
1354 (Fed. Cir. 2004); In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB
2016).
The Examining Attorney argues that “both marks share the identical phrase
BETTER FOR EVERYONE”; that Applicant’s mark merely deletes BETTER FOR
YOU, “the first of the two phrases in the cited registration”; that “Applicant’s mark
does not create a distinct commercial impression because it contains the same
common wording as the registered mark, and there is no other wording to distinguish
it from the registered mark”; and that the marks make a similar commercial
impression. 10 TTABVUE 6-8.
Applicant argues that its mark “is dissimilar from the Cited Mark in all respects”;
that the Examining Attorney “has improperly dissected Applicant’s mark by
concentrating solely on the phrase BETTER FOR EVERYONE”; that the “Cited Mark
BETTER FOR YOU, BETTER FOR EVERYONE contains a laudatory suggestive
Serial No. 86348671
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connotation” and “[a]s such, the Cited Mark should only be entitled to a narrow scope
of protection”;12 and that the marks differ in sound and connotation and commercial
impression because they contain different numbers of syllables and because
“Applicant’s mark BETTER FOR EVERYONE focuses on the quality of health of
everyone, while the Cited Mark focuses equally, if not more, on the individual,
through the incorporation of and lead [sic] off with, the phrase BETTER FOR YOU.”
8 TTABVUE 9-11.
Applicant relies heavily on Standard Brands Inc. v. Peters, 191 USPQ 168 (TTAB
1976). 8 TTABVUE 10; 11 TTABVUE 2-3. Applicant claims that in that case, “the
Board found that Applicant’s mark CORN-ROYAL for butter and margarine was not
confusingly similar to Opposer’s ROYAL family of marks for margarine, corn oil and
other food products.” 8 TTABVUE 10 and 11 TTABVUE 2 (both citing Standard
Brands, 191 USPQ at 172) (emphasis supplied by Applicant).13 Applicant argues that
the “facts of Standard Brands are particularly apposite to the present case because
Standard Brands involved (1) a laudatory suggestive registered mark, (2) common
wording in the cited mark and the applied-for mark, and (3) food products,” 11

12 Applicant also argues that the cited mark is weak because of third-party marks containing
BETTER and EVERYONE. We discuss that argument below under the sixth du Pont factor.
13 Applicant indicates that the goods in Standard Brands were identical, but that is
inaccurate. The opposer did not own a registration of ROYAL for margarine, 191 USPQ at
170, and the Board found that it had “not used the term ‘ROYAL’ on its margarine products”
and that its “cause of action must stand or fall on its registrations of ‘ROYAL’, per se, and its
common law rights in ‘ROYAL FLO-N-FRY’ and ‘ROYAL GOLDEN BLEND’,” which it had
used for shortening for deep fat frying. Id. at 171. The Board found that butter and margarine
were “products which are specifically different from opposer's various food products.” Id. at
172. Applicant only acknowledges this in its reply brief, where it also seems to cite Standard
Brands to show that the goods here are unrelated. 11 TTABVUE 3.
Serial No. 86348671
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TTABVUE 2, and that “Standard Brands, as binding Board precedence [sic], strongly
supports that Applicant’s mark BETTER FOR EVERYONE is distinguishable from
the Cited Mark BETTER FOR YOU, BETTER FOR EVERYONE.” 11 TTABVUE 3.
We disagree.
Applicant is correct that the word BETTER that appears in the cited mark and in
Applicant’s mark is laudatory,14 and we find below in connection with the sixth du
Pont factor that the cited mark is relatively weak. We also agree with Applicant that
it is not enough “to simply note that Applicant’s mark shares a component with the
Cited Mark.” 8 TTABVUE 9. Nevertheless, we find that the marks BETTER FOR
YOU, BETTER FOR EVERYONE and BETTER FOR EVERYONE are quite similar
when considered in their entireties because the shared component BETTER FOR
EVERYONE imbues both marks with a very similar connotation and commercial
impression.
Applicant argues that the addition of the phrase BETTER FOR YOU in the cited
mark “serves to distinguish the Cited Mark from Applicant’s mark,” 8 TTABVUE 10,
because Applicant’s mark lacks “focus on the individual because Applicant’s mark
lacks the phrase BETTER FOR YOU.” 8 TTABVUE 11. While it is true that “it is

14 We may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C.
Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983), including online dictionaries that exist in printed form or regular fixed
editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). We judicially notice
that the word “better” has a laudatory meaning in all of its grammatical forms. In its adjective
form, better is the comparative of “good” and means “more advantageous or effective” and
“improved in accuracy or performance.” In its adverb form, better is the comparative of “well”
and means “in a more excellent manner” and “to a higher or greater degree.” In its noun form,
better means “something better.” Merriam-Webster Dictionary (www.merriam-webster.com,
accessed on February 7, 2017).
Serial No. 86348671
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often the first part of a mark which is most likely to be impressed upon the mind of a
purchaser and remembered,” Presto Prods. Inc. v. Nice-Pak Prods. Inc., 9 USPQ2d
1895, 1897 (TTAB 1988), we find that this principle does not apply to the cited mark,
which is in the nature of a paired couplet in which both parts have equal significance
and the same structure. The mark as a whole will be understood as communicating
the message that the products sold under the mark improve health and wellbeing,
with the first part (BETTER FOR YOU) particularizing that message to an individual
consumer and the second part (BETTER FOR EVERYONE) generalizing it to the
public at large. The overall message of the mark will be what is “most likely to be
impressed upon the mind of a purchaser and remembered,” id., and that message
connotes that what is beneficial for one is beneficial for all.
The shared portion BETTER FOR EVERYONE in both marks causes them to
have the identical connotation that Applicant’s and the registrant’s food products
improve the health and wellbeing of everyone. The marks differ in appearance and
sound simply because of the presence of the phrase BETTER FOR YOU in the cited
mark, although both will be viewed and heard as including the words BETTER FOR
EVERYONE. Consumers could easily view Applicant’s mark BETTER FOR
EVERYONE as a variation or shortened version of the cited mark BETTER FOR
YOU, BETTER FOR EVERYONE when Applicant’s mark is used on food products
that are identical in part and otherwise similar to the registrant’s food products. See
In re Mighty Tea Leaf, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); Hunter
Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660-61 (TTAB 2014).
Serial No. 86348671
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We find that the close similarity of the marks in connotation and commercial
impression is the most important means of comparison in finding the marks to be
similar and that such similarity outweighs the impact of any differences in
appearance and sound, particularly taking into account “the recollection of the
average purchaser, who normally retains a general rather than a specific impression
of trademarks.” i.am.symbolic, 116 USPQ2d at 1409. This du Pont factor supports a
finding of a likelihood of confusion.
C. Similarity of Trade Channels and Classes of Customers
As noted above, there are no limitations or restrictions on the identified goods in
terms of classes of customers or channels of trade. “Accordingly, we must presume
that the goods would be sold in all ordinary channels of trade for those goods and be
sold to all relevant classes of purchasers.” Davia, 110 USPQ2d at 1818 (citing
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005
(Fed. Cir. 2002) and Octocom, 16 USPQ2d at 1787).
The meat substitutes identified in the registration and the tofu identified in the
application are legally-identical goods. “Where, as here, Applicant’s and Registrant’s
goods are in part legally identical, we must presume that the channels of trade and
classes of purchasers for those goods are the same.” Aquamar, 115 USPQ2d at 1126
(citing In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)).
This supports a finding of a likelihood of confusion. Id.
The third-party registration and Internet evidence indicate the overlap of the
channels of trade for meat substitutes and the goods other than tofu identified in the
Serial No. 86348671
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application, and Applicant effectively concedes that “the respective goods are sold in
the same stores.” 8 TTABVUE 13. This supports a finding of a likelihood of confusion.
ProMark, 114 USPQ2d at 1242-43.
With respect to the classes of customers for the goods identified in the application,
many of those goods, such as milk, eggs, meat, poultry, butter, and cheese, are staple
foods that are purchased by most members of the general public, and the rest are
common food products. Because the goods identified in the application “are not
confined to food items with low fat or caloric content, we must assume that the
relevant class of consumers . . . is the public at large and not simply health-conscious
or dieting consumers.” Id. at 1243 (considering purchasers of frozen appetizers
containing meat, poultry, seafood, and vegetables, and chips, snack mixes, and
processed nuts, among other goods in Class 29).
As to the classes of customers for the goods identified in the registration, Applicant
argues that “it is obvious that Registrant’s products are a specialized form of food
directed to consumers who do not eat meat, fish or seafood,” and that “Registrant is
targeting vegetarians, vegans or consumers who do not want to eat meat, fish, or
seafood products because all of Registrant’s recited goods are meat, fish, or seafood
substitutes.” 8 TTABVUE 12-13 (emphasis in original). That is not entirely accurate
because the goods identified in the registration as “protein for use as an ingredient in
cooking, baked goods and as a meat additive” would by definition be purchased by
consumers who cook and presumably eat meat. But even assuming that most
consumers of the goods identified in the registration are non-meat eaters, there is no
Serial No. 86348671
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evidence in the record that non-meat eaters do not also purchase the other goods
identified in the application,15 or that they do not also purchase meat for meat-eating
members of their households. This du Pont factor supports a finding of a likelihood of
confusion. Aquamar, 115 USPQ2d at 1126.
D. Purchase Conditions
This du Pont factor addresses the “conditions under which and buyers to whom
sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” du Pont, 177
USPQ at 567. In assessing the sophistication of purchasers and the degree of care in
their purchases, we look to the identifications of goods in the application and in the
cited registration. ProMark, 114 USPQ2d at 1243. We must consider all potential
purchasers for the goods as identified. Stone Lion, 110 USPQ2d at 1163.
Applicant argues that the “threshold for confusion is much higher for careful,
sophisticated, discriminating purchasers than for impulse purchasers, and there is
always less likelihood of confusion if the purchase concerns an expensive product or
is made after careful examination of the product.” 8 TTABVUE 13. Applicant claims
that “Registrant’s consumers are unlikely to confuse Registrant’s products with
Applicant’s products” because “Registrant is targeting vegetarians, vegans or
consumers who do want to eat meat, fish, or seafood products,”16 and “Registrant’s

15 We take judicial notice of the fact that a number of the goods identified in the application,
including cheese, eggs, prepared nuts, and dried fruits, are important sources of protein for
many consumers who do not eat meat and thus do not get protein from that dietary source.
16 This is, of course, not the relevant form of confusion under du Pont. The “issue is not
whether consumers would confuse the goods themselves, but rather whether they would be
confused as to the source of the goods.” Davey Prods., 92 USPQ 2d at 1202.
Serial No. 86348671
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consumers are not seeking Applicant’s goods, which are meat products or primarily
byproducts of animals.” 8 TTABVUE 13.17 The Examining Attorney responds that
“‘[g]enerally, casual purchasers of low-cost, every-day consumer items exercise less
care in their purchasing decisions and are more likely to be confused as to the source
of the goods.’” 10 TTABVUE 18 (quoting Specialty Brands, Inc. v. Coffee Bean
Distribs., Inc., 748 F.2d 669, 223 USPQ 1281, 1282 (Fed. Cir. 1984)).
There is no evidence in the record to support Applicant’s suggestion that
vegetarians, vegans, or other non-meat eating consumers purchase foods, including
the staple foods identified in the application, with any greater degree of care than
consumers who eat meat. “[O]rdinary consumers may be expected to consider the
nutritional benefits or the ingredients of their food purchases but that care may or
may not extend to consideration of the trademark affixed to the selection, which is
the relevant inquiry in the du Pont analysis.” ProMark, 114 USPQ2d at 1243.
“Although some of the parties’ more health-conscious consumers may be more careful
in their purchase, we must base our decision on the least sophisticated potential
purchasers.” Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A., 100 USPQ2d 1584, 1600
(TTAB 2011), judgment set aside on other grounds, 2014 WL 343267 (TTAB Jan. 22,
2014) (considering purchasers of cereal and yogurt); see also Stone Lion, 110 USPQ2d
at 1163. “We find that the ordinary consumer, whether or not concerned about a

17 Applicant also argues that “Registrant’s consumers are also likely to focus on Registrant’s
house mark MATCH rather than the [cited mark] when making their purchasing decision.”
8 TTABVUE 13. This argument, which is based upon the specimen of use of the registered
mark made of record by Applicant, is irrelevant to our analysis because the house mark is
not part of the mark in the cited registration. See, e.g., Nike Inc. v. WNBA Enters. LLC, 85
USPQ2d 1187, 1201 (TTAB 2007).
Serial No. 86348671
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healthy lifestyle, would exercise a moderate to low degree of care in purchasing the
parties’ food products.” ProMark, 114 USPQ2d at 1243. This du Pont factor slightly
favors a finding of a likelihood of confusion.
E. The Number and Nature of Similar Marks in Use on Similar Goods
Under the sixth du Pont factor, we consider “[t]he number and nature of similar
marks in use on similar goods.” du Pont, 177 USPQ at 567. This factor addresses the
strength of a mark with respect to both its inherent strength, based upon the nature
of the mark itself, and its commercial strength, based upon the marketplace
recognition of the mark. Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110
USPQ2d 1458, 1476 (TTAB 2014). The Federal Circuit has held that evidence of the
extensive registration and use of similar marks by others can be “powerful” evidence
of a mark’s weakness. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. v.
Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015);
Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674
(Fed. Cir. 2015).
Applicant made of record 174 registrations of marks for various goods in Class 29
that Applicant claimed contained BETTER or EVERYONE. 8 TTABVUE 14. Three
contain EVERYONE (4 TTABVUE 196-198), and none contains both BETTER and
EVERYONE.18 Applicant cites Juice Generation, Jack Wolfskin, and ProMark, 114

18 The registrations of different marks in which BETTER appears are also somewhat fewer
in number than Applicant claims. There are 12 different marks that appear in more than one
registration, either for different goods or in varied forms (4 TTABVUE 22, 28, 102, 114, 116,
and 180; 4 TTABVUE 33 and 38; 4 TTABVUE 61-62; 4 TTABVUE 72 and 126; 4 TTABVUE
90, 157, and 179; 4 TTABVUE 75, 112, and 127; 4 TTABVUE 121-122; 4 TTABVUE 139-140;
4 TTABVUE 160 and 184; 4 TTABVUE 171-172; 4 TTABVUE 177 and 187; and 4 TTABVUE
Serial No. 86348671
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USPQ2d at 1244, in which the Board held that “[s]uch third-party registrations and
uses are competent to show that the common term has an accepted meaning in a
given field and that marks containing the term have been registered and used for
related goods because the remaining portions of the mark may be sufficient to
distinguish the marks as a whole from one another.” 8 TTABVUE 14-15.
An important difference between the cited cases and this one is that there was
evidence of the use of third-party marks in addition to registrations in the cited cases.
ProMark, 114 USPQ2d at 1244 (“numerous uses of marks comprising or incorporating
‘SMART’ in the consumer packaged goods industry”); Juice Generation, 115 USPQ2d
at 1674 (a “fair number of third-party uses of marks containing ‘peace’ and ‘love’
followed by a third, product-identifying term”); Jack Wolfskin, 116 USPQ2d at 1136
(“voluminous evidence of paw print design elements that have been registered and
used in connection with clothing”). Applicant relies here solely on registrations, and
did not make of record any evidence of any use of the registered marks, or any other
third-party marks.19 This limits the probative value of Applicant’s evidence.

193-194). There are also six registrations in which a slang word like BETTAH or a
misspelling like BETR appears (4 TTABVUE 32, 63, 125, 145, 159, and 178), two
registrations in which the surname LEDBETTER appears (4 TTABVUE 26, and 167, with
one also containing “Better Since 1959”), and four registrations in which neither BETTER
nor an equivalent appears (4 TTABVUE 58, 99, 188, and 192). Applicant also included the
cited registration among the third-party registrations (4 TTABVUE 129).
19 Applicant’s opening brief refers to the “voluminous number of BETTER and EVERYONE
third party registrations and the evidence of third party use of marks with BETTER and
EVERYONE . . .,” 8 TTABVUE 15, apparently equating proof of the registrations with proof
of the use of the registered marks. “[T]hird-party registrations standing alone, are not
evidence that the registered marks are in use on a commercial scale, let alone that consumers
have become so accustomed to seeing them in the marketplace that they have learned to
distinguish among them by minor differences.” In re Morinaga Nyugyo K.K., 120 USPQ2d
1738, 1745 (TTAB 2016); see also Midwest Gaming, 106 USPQ2d at 1167 n.5 (“the mere
Serial No. 86348671
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Registrations without proof of use are evidence only “of the inherent or conceptual
strength of a mark or term because they are probative of how terms are used in
connection with the goods or services identified in the registrations.” Morinaga
Nyugyo, 120 USPQ2d at 1745. They “can be used in the manner of a dictionary
definition to illustrate how a term is perceived in the trade or industry,” In re Box
Solutions Corp., 79 USPQ2d 1953, 1955 (TTAB 2006), and are “‘relevant to prove that
some segment of the composite marks which both contesting parties use has a
normally understood and well recognized descriptive or suggestive meaning, leading
to the conclusion that that segment is relatively weak.’” Juice Generation, 115
USPQ2d at 1675 (quoting 2 McCarthy on Trademarks and Unfair Competition
§ 11:90 (4th ed. 2015)). They have minimal, if any, probative value, however, with
respect to the commercial strength of the cited mark. Palm Bay Imps., 73 USPQ2d at
1693-94.
The probative value of the third-party registrations here is further limited because
the common element between Applicant’s mark and the cited mark is the phrase
BETTER FOR EVERYONE, not simply the word BETTER or EVERYONE, and none
of the marks in the registrations contains the shared phrase, or even both words. In
Juice Generation, which involved the mark PEACE LOVE AND JUICE and design
and four marks “each incorporating the phrase ‘PEACE & LOVE,’” 115 USPQ2d at
1672, the evidence showing the weakness of the mark PEACE LOVE AND JUICE

existence of third-party registrations is not evidence that the registered marks are actually
in use or that the public is familiar with them.”) (citing Mighty Leaf Tea, 94 USPQ2d at 1259).
Serial No. 86348671
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consisted of “a substantial number of third-party marks incorporating the phrase
‘peace and love’ in connection with restaurant services or food products, the bulk of
which [were] three-word phrases much like Juice Generation's mark.” Id. at 1674.20
There is simply no comparable evidence here to suggest that the cited mark has been
weakened by third-party marks containing the “three-word phrase” BETTER FOR
EVERYONE that is found in the cited mark and that comprises Applicant’s mark.
Nor does this record include third-party marks in which the words BETTER and
EVERYONE both appear in any manner. Unlike in Juice Generation, the marks here
are much more similar to one another than either is to any of the marks shown in the
third-party registrations.
Applicant argues that the absence of third-party marks containing both BETTER
and EVERYONE does not matter because the “case law does not require such a strict
interpretation of the importance, and consideration, of third party marks.” 8
TTABVUE 15. Applicant claims that in Jack Wolfskin, the Federal Circuit held that
the Board “incorrectly discounted evidence of third party use and registration of paw
prints, including paw prints that were ‘quite different’ from the applicant’s or

20 “Examples of registered or unregistered marks in the record include[d] the following:
‘PEACE LOVE NOODLES HE AI MIAN,’ ‘PEACE LOVE AND PIZZA,’ ‘PEACE LOVE
YOGURT,’ ‘PEACE, LOVE & ICE CREAM,’ ‘PEACE, LOVE AND LITTLE DONUTS,’
‘PEACE.LOVE.DO ̈NER,’ ‘PEACE, LOVE & BEER,’ ‘PEACE, LOVE, AND CHOCOLATE,’
‘PEACE LOVE & OATS,’ ‘PEACE. LOVE. & GOOD FOOD.’ ‘PEACE, LOVE AND FRENCH
FRIES,’ ‘PEACE, LOVE & CUPCAKES,’ ‘PEACE LOVE BURRITOS,’ ‘PEACE, LOVE, AND
BURGERS,’ ‘PEACE · LOVE · PANCAKES,’ ‘PEACE LOVE & BARBECUE,’ ‘PEACE, LOVE
& CRUNCH,’ ‘PEACE LOVE GRANOLA,’ ‘PEACE, LOVE AND PINOT,’ ‘PEACE. LOVE.
TREATS.,’ ‘PEACE, LOVE, AND CHOPS,’ ‘PEACE, LOVE, AND HOT DOGS,’ ‘PEACE.
LOVE. PASTA.,’ ‘PEECE LUV CHIKIN,’ ‘PEACE, LOVE & CHEESECAKE,’ ‘PEACE LOVE
AND APPLE PIE.’” Id. at 1673 n.1.
Serial No. 86348671
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registrant’s paw print designs.” 8 TTABVUE 16. Jack Wolfskin does not aid Applicant
because the common element of the marks in that case was a design, not words, and
because the Federal Circuit did not find that designs that were “quite different” from
the subject designs were probative of their weakness. The language “quite different”
that Applicant quotes from the opinion was an internal quotation from the Board
characterizing some of the third-party use evidence: “As to the remaining paw-print
trademarks, the Board focused on the differences between those designs and the
designs at issue. See New Millennium, 2014 WL 2997637, at *11 (finding that these
marks are ‘quite different, in that four of them have five digits and all of them have
very prominent claws’).” 116 USPQ2d at 1136. The Federal Circuit viewed that
evidence differently: “Jack Wolfskin's extensive evidence of third-party uses and
registrations of paw prints indicates that consumers are not as likely confused by
different, albeit similar looking, paw prints.” Id. (emphasis added). Jack Wolfskin
does not require us to find that third-party word marks that are “quite different” from
the cited mark have significant probative value with respect to the strength of that
mark.
Applicant also argues that even though the third-party registrations do not
include any that contain the phrase BETTER FOR EVERYONE or the words
BETTER and EVERYONE, “the evidence of third-party use includes marks that have
similar connotations to the Cited Mark,” 8 TTABVUE 16, offering 24 marks as
examples. 8 TTABVUE 16-17.21 Applicant does not explain in its brief why these

21 These include REAL MILKSHAKES ARE REAL BETTER; SOY MUCH BETTER; BAKED
IS BETTER; LOCAL CHICKS ARE BETTER; QUALITY COCOA FOR A BETTER LIFE and
Serial No. 86348671
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marks have “similar connotations” to the cited mark. Of the listed marks, the mark
BETTER MEALS. BETTER YOU. (4 TTABVUE 57) is probably the mark that is
closest in connotation to the cited mark because it is structurally similar to the cited
mark in that it contains two phrases and because it similarly references the consumer
personally through the use of the pronoun “YOU.” But that mark, like the others that
contain “YOU,”22 has limited probative value regarding the strength of the cited mark
because it does not contain the word EVERYONE that contributes to the very similar
meaning and connotation of the marks here. The overall connotation of that mark
also differs from the similar connotations of Applicant’s mark and the cited mark.
The marks in the third-party registrations use the word BETTER in a manner
consistent with the dictionary definitions that show that “better” is a laudatory word
in its various forms. We find that the third-party registrations confirm that the word
BETTER has an understood and well-recognized laudatory meaning, and is thus
relatively weak as a source identifier, when it is used as a part of marks for food
products.23 Given the relative weakness of the word “better” when used in this

design; ALL NATURAL AL FRESCO EAT BETTER; SIMPLY POTATOES. SIMPLY
BETTER; LEVERAGING INGREDIENT TECHNOLOGIES TO MAKE GOOD FOODS
EVEN BETTER; and BETTER CHOICE BETTER YOU! The sole listed mark containing
EVERYONE is MADE BY ITALIANS, ENJOYED BY EVERYONE!
22 There are eight such marks: FOOD THAT MAKES YOU FEEL BETTER; BETTER NEST,
BETTER HEALTH, BETTER YOU; THE MORE YOU KNOW, THE BETTER; THE MORE
YOU KNOW ABOUT OUR MEAT, THE BETTER; BETTER WHEY OF LIFE A BETTER
WAY TO A LEANER YOU and design; BETTER CHOICES, BETTER YOU; BECAUSE YOU
CAN MAKE IT TASTE BETTER; and ENJOY LIFE. BECAUSE YOU CAN MAKE IT TASTE
BETTER (4 TTABVUE 31, 46, 81, 85, 135, 144, 146, and 162). A ninth uses “You” in the
possessive case in the mark FOR YOUR BETTER HEALTH HMR HEALTH
MANAGEMENT RESOURCES (4 TTABVUE 71).
23 Applicant argues that both “BETTER and EVERYONE are diluted terms used by many
other food manufacturers.” 11 TTABVUE 2. Applicant’s three third-party registrations of
Serial No. 86348671
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manner, and the overall connotation of the cited mark touting the health benefits of
the registrant’s goods, we reject the Examining Attorney’s argument on this du Pont
factor that “the cited registration is a strong mark in connection with the goods at
issue,” and his suggestion that it is an arbitrary one. 10 TTABVUE 8.24 The word
“BETTER” is only one part of the marks here, however, and it is well settled that
even weak marks are entitled to protection against confusingly-similar marks. See,
e.g., King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108,
109 (CCPA 1974). This du Pont factor thus weighs only slightly against a finding of
a likelihood of confusion.25

marks containing EVERYONE fall far short of showing even that EVERYONE “has a
normally understood and well recognized descriptive or suggestive meaning, leading to the
conclusion that that segment is relatively weak.” Juice Generation, 115 USPQ2d at 1675.
24 At the same time, we reject Applicant’s argument that the Examining Attorney “must also
consider the fame of the Cited Mark” and that the Examining Attorney “has offered no
evidence that Registrant’s BETTER FOR YOU, BETTER FOR EVERYONE is famous or is
likely to be remembered in the public mind, despite repeated opportunities to do so.” 8
TTABVUE 19 (citing Recot, Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894 (Fed. Cir.
2000)). Applicant’s citation of Recot is misplaced because it was an inter partes case. “Because
of the nature of the evidence required to establish the fame of a registered mark, the Board
normally does not expect the Examining Attorney to submit evidence as to the fame of the
cited mark in an ex parte proceeding,” and “in an ex parte analysis of the du Pont factors for
determining the likelihood of confusion, the ‘fame of the mark’ factor is normally treated as
neutral when no evidence as to fame has been provided because the record generally includes
no evidence as to fame.” i.a.m.symbolic, 116 USPQ2d at 1413. See also Davey Prods., 92
USPQ2d at 1204 (noting that the absence of evidence as to the fame of the registered mark
“is not particularly significant in the context of an ex parte proceeding.”).
25 At the end of Applicant’s argument on this du Pont factor, Applicant argues that the fact
that its co-pending applications to register BETTER FOR EVERYONE in Classes 30 and 32
have been allowed by the same Examining Attorney who refused registration of the mark in
Class 29 reflects inconsistent treatment of its mark by the Patent and Trademark Office.
Applicant invokes the Office’s Consistency Initiative (www.uspto.gov/trademark/trademark-
updates-and-announcements/consistency-initiative), which permits applicants “to bring to
the attention of the Office situations where, in applicant’s opinion, the Office has acted
inconsistently in its treatment of applicant’s pending applications/recent registrations(s).”
The Consistency Initiative requires applicants to send requests that the Office review
allegedly inconsistent actions to tmconsistency@uspto.gov. Applicant did not submit such a
Serial No. 86348671
- 36 -
Conclusion
We have found that Applicant’s mark and the cited mark are similar, that
Applicant’s goods and the goods in the cited registration are identical in part and
similar in part, that the channels of trade and classes of customers are the same, and
that the purchasers of Applicant’s goods and the goods in the cited registration are
likely to exercise a moderate to low degree of care. Notwithstanding the relative lack
of strength of the cited mark, balancing our findings on the du Pont factors, we
conclude that confusion is likely as to the source or sponsorship of Applicant’s goods.
Decision: The refusal to register is affirmed.

request, and the Consistency Initiative does not otherwise create any substantive rights or
any basis for challenging a refusal to register on appeal.