Knauss Foods, LLC

Trademark Trial and Appeal Board

Oct 15, 2013

No. 85522084 (T.T.A.B. Oct. 15, 2013)

Mailed:
October 15, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Knauss Foods, LLC
________

Serial No. 85522084
_______

Charlie C. Lyu of Woodcock Washburn LLP for Knauss Foods,
LLC.

Cory Boone, Trademark Examining Attorney, Law Office 104
(Chris Doninger, Managing Attorney).
_______

Before Grendel, Wellington, and Masiello,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Knauss Foods, LLC (“applicant”) has filed an
application to register the mark shown below on the
Principal Register for “oven-dried marinated beef steak
slices and tenders; oven-dried marinated whole beef steak
rounds” in International Class 29:1

1 Serial No. 85522084, filed January 21, 2012, based on an
allegation of a first use of the mark in commerce on the
identified goods on January 20, 2012.
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Serial No. 85522084
2

The wording HIGH QUALITY BEEF STEAK has been
disclaimed.2
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d), in view of
the following registered mark:

for “Cheese food; Food additives in the nature of fat acids
made from meat, fish, fruits, vegetables, eggs, milk and
edible oils and fats; Food package combinations consisting
primarily of cheese, meat and/or processed fruit; Meat-
based snack foods; Prepared food kits composed of meat,

2 The application contains the following description of the mark:
The mark consists of wording and designs. The wording
"PJ'S" appears in large white letters with black outline in
the center of the mark in the middle of a red background
that is roughly four-sided. Below this, the wording "HIGH
QUALITY BEEF STEAK" appears in red letters on a white
banner and is bookended by red stars. Around the edges of
the mark, there are scattered pin-striping lines.
Serial No. 85522084
3
poultry, fish, seafood, and/or vegetables and also
including sauces or seasonings, ready for cooking and
assembly as a meal, all organically grown or raised” in
International Class 29.3 The registration contains a
disclaimer of the term ORGANICS.
Applicant appealed the final refusal of the
application. Both applicant and the examining attorney
have filed briefs, including a reply brief from applicant.
As discussed below, the refusal to register is affirmed.
Our determination of the examining attorney's refusal
to register the mark under Section 2(d) of the Trademark
Act is based on an analysis of all of the facts in evidence
that are relevant to the factors bearing on the likelihood
of confusion issue. See In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA
1976).

3 Registration No. 3786248 issued May 4, 2010.
Serial No. 85522084
4
With respect to the goods, applicant has not contested
the examining attorney’s assertion that applicant’s “oven-
dried marinated beef steak slices and tenders [and] oven-
dried marinated whole beef steak rounds” are closely
related to, and possibly encompassed by, the goods
described in the cited registration, namely, “meat-based
snack foods.” Despite there being no apparent dispute
involving the relatedness of the goods, we note the
evidence submitted by the examining attorney shows that
applicant does in fact offer snack goods akin to beef
jerky. Indeed, applicant’s advertisements tout their snack
goods as “deliciously tender, all-natural and gluten free
alternative to jerky.”4 These snack goods being offered by
applicant may be described in broader terms as “meat based
snack foods” and thus are encompassed by the cited
registration’s identification of goods. In view thereof,
we must consider the real possibility that the goods, as
they are identified in the application and registration,
may be identical in part. This factor therefore weighs
heavily against applicant in the likelihood of confusion
analysis.
Because the identified goods are potentially
identical, we must also presume the possible scenario that

4 Attached to Office action issued January 18, 2013.
Serial No. 85522084
5
they will be sold in the same trade channels to the same
classes of purchasers who, in this case, are likely to be
purchasers of meat-based snack foods. Accordingly, the
factors involving channels of trade and classes of
consumers also favor finding a likelihood of confusion.
As to the marks, we examine the similarities and
dissimilarities of the marks in their appearance, sound,
meaning, and commercial impression. Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). In situations
such as the present case, where the marks may appear on
identical goods, such as meat-based snack goods, the degree
of similarity between the marks that is necessary to
support a finding of likely confusion declines. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698 (Fed. Cir. 1992).
Applicant’s essential argument on appeal is that
confusion is unlikely “given the differences in commercial
impression, appearance and sound of the marks.” Brief, p.
3. Applicant points out the additional wording “High
Quality Beef Steak” and “Organics” in the applied-for mark
and registered mark, respectively, as well as the shapes
and colors employed in the design portions of the marks.
Serial No. 85522084
6
For the reasons already articulated by the examining
attorney, we find the dominant elements of the two marks
are nearly identical. That is, the terms PJ’S and PJ*S
figure prominently in the respective marks and, as the only
non-descriptive or generic literal elements, will be
perceived by consumers as the principal source-identifying
elements in the respective marks. The disclaimed terms
“High Quality Beef Steak” and “Organics,” on the other
hand, appear in a significantly smaller font in both marks
and merely offer highly descriptive or generic information
with respect to the identified goods. As the examining
attorney explained in the Office actions and reiterated in
his brief, it is well-settled that disclaimed, descriptive
matter generally has less significance in likelihood of
confusion determinations. See Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000),
quoting, In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 752 (Fed. Cir. 1983) (“Regarding descriptive terms,
this court has noted that the descriptive component of a
mark may be given little weight in reaching a conclusion on
the likelihood of confusion”); In re Dixie Rests. Inc., 105
F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997);
In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB
Serial No. 85522084
7
2001) (disclaimed matter is often “less significant in
creating the mark's commercial impression”).
As to sound and appearance, the differences between
the marks are the addition of the descriptive and generic
wording and the border designs that carry the wording in
the marks. We do not ignore these differences and there is
no dispute that the banner or border design portions of the
marks are shaped differently and employ different colors.
Nevertheless, such differences are outweighed by the
similarity resulting from both marks’ emphasis on the
dominant literal portion, PJ’S or PJ*S. We make this
decision keeping in mind the oft-stated proposition that
our analysis involving the similarity of the marks is not
based on whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether
they are sufficiently similar in terms of their overall
commercial impression so that confusion as to the source of
the goods and/or services offered under the respective
marks is likely to result. San Fernando Elec. Mfg. Co. v.
JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1,
3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff'd, No. 92-1086 (Fed.
Cir. June 5, 1992). Consumers are rarely offered a side-
by-side comparison and we therefore focus on the
Serial No. 85522084
8
recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975).
Viewing the marks in their entireties, we find them to
be significantly more similar than dissimilar. Again,
consumers will focus on and recall the designations PJ’S
and PJ*S in the marks as identifying the source of the
goods rather than relying on the different designs or
additional wording that appears in significantly smaller
and descriptive wording. Even to the extent that consumers
recall or retain a commercial impression based on the
different terms ORGANICS and HIGH QUALITY BEEF STEAK in the
respective marks, the same consumer may mistakenly construe
this information as indicating different lines of PJ’S
meat-based snack products originating from the same
manufacturer.
Accordingly, the du Pont factor of the similarity of
the marks favors finding a likelihood of confusion.
Finally, we address applicant’s argument that “because
there are numerous marks in Class 29 that either include
the term ‘PJ’s’ or are similar, purchasers are unlikely to
be confused.” Brief, p. 9. In support, applicant
submitted Office database records for several third-party
Serial No. 85522084
9
registrations for marks containing the element PJ or PJ’s,
(and other configurations of initials containing the same
and different letters) for a variety of goods and services.
Simply put, the record does not support applicant’s
argument that the relevant consuming public has been so
exposed to the term PJ’s, or a similar variation thereof,
and are therefore able to distinguish between applicant’s
mark and the cited mark based on differences in the marks.
At best, the third-party registrations submitted by
applicant show that the term PJ’S or PJ, by itself or in
connection with other terms, has been adopted by different
entities in seeking to register trademarks for very
different goods that, pointedly, do not include snack food
items akin to applicant’s and registrant’s identified
goods. In fact, the only registered mark that comes close
is for the mark PJ SNACKENWAFFLES for “waffles”; the other
registrations referenced by applicant in its brief cover
goods and services that are clearly unrelated such as soft
drinks, roasted coffee beans, and restaurant services.
Other third-party registrations submitted by applicant are
for marks with different letter initials, e.g., CJ, BJ’s,
TJ, and JJ, and we thus do not find these registrations
probative for purposes of showing that the public is
accustomed to seeing PJ’S in marks. Even putting aside the
Serial No. 85522084
10
fact that the third-party registrations cover unrelated
goods and services or that the relevant common element,
PJ’s, is not present in the marks, these registrations are
not evidence of actual use and we cannot even assume that
the public has been exposed to those marks. Smith Bros.
Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462,
463 (CCPA 1973) (the purchasing public is not aware of
registrations reposing in the U.S. Patent and Trademark
Office); and Productos Lacteos Tocumbo S.A. de C.V. v.
Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1934 (TTAB
2011). See also Olde Tyme Foods Inc. v. Roundy's Inc., 961
F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992) (“As to
strength of a mark, however, registration evidence may not
be given any weight”). The sixth du Pont factor focuses on
the number and nature of similar marks in use on similar
goods. See 2 J. Thomas McCarthy, McCarthy on Trademarks
and Unfair Competition, § 11:89 (4th ed. 2009)(“The mere
citation of third party registrations is not proof of third
party uses for the purpose of showing a crowded field and
relative weakness.”).
In view thereof, we do not agree that consumers have
become so conditioned by a plethora of similar PJ or PJ’s
marks that these consumers have been educated or accustomed
Serial No. 85522084
11
to distinguishing the marks based on differences in the
marks that would otherwise be less meaningful.
In conclusion, when we consider the record and the
relevant likelihood of confusion factors, we conclude that,
should potential purchasers encounter applicant’s mark on
the goods identified in the application, including oven-
dried marinated beef steak slices and tenders, and also
encounter the registered mark used on meat-based snack
foods, they are likely to believe that these goods emanate
from the same source. As a result, there is a likelihood
of confusion.
DECISION: The refusal to register the mark under
Section 2(d) of the Trademark Act is affirmed.