Kustom Pak Foods, Ltd.

Trademark Trial and Appeal Board

May 28, 2003

No. 76232799 (T.T.A.B. May. 28, 2003)

Mailed: May 28,2003
Paper No.10
GDH/gdh
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Kustom Pak Foods, Ltd.
________
Serial No. 76/232,799
_______
Denise C. Mazour of Thomte, Mazour & Niebergall for Kustom Pak
Foods, Ltd.
Ysa de Jesus, Trademark Examining Attorney, Law Office 101
(Angela Wilson, Acting Managing Attorney).
_______
Before Seeherman, Hohein and Chapman, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Kustom Pak Foods, Ltd. has filed an application to
register the mark "E-Z GRILL" and design, as shown below,
for "pork, beef, chicken and turkey for use in sandwiches."1
1 Ser. No. 76/232,799, filed on March 27, 2001, which alleges a date of
first use anywhere and in commerce of February 14, 2001. The word
"GRILL" is disclaimed.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76/232,799
2
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to its goods, so resembles the
mark "EASY GRILL," which is registered, as reproduced below,
for "frozen fish,"2 as to be likely to cause confusion, or
mistake or to deceive.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant to
the factors bearing on the issue of whether there is a likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 568 (CCPA 1973). However, as indicated in
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976), in any likelihood of confusion
analysis, two key considerations are the similarity of the goods
and the similarity of the marks.3
2 Reg. No. 1,632,014, issued on January 15, 1991, which sets forth a
date of first use anywhere and in commerce of January 11, 1990;
renewed.
3 The court, in particular, pointed out that: "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."
Ser. No. 76/232,799
3
Turning first to consideration of the respective marks,
applicant maintains that its mark, which consists of "a flame and
clock design, as well as the words 'E-Z GRILL,'" differs in
appearance from registrant's mark, which consists of "the words
'Easy Grill' in a stylized form." Applicant also asserts that
the respective marks differ in connotation and commercial
impression inasmuch as its mark suggests "a product which is
quickly and easily grilled," while registrant's mark only
suggests "a product which is easily grilled." Applicant
contends, in view thereof, that the "dissimilarities between the
two marks are so great as to create completely different overall
impressions, thus leading to the conclusion that confusion is not
likely."
Although the above differences, and a few other minor
ones as well, are apparent on the basis of a side-by-side
comparison of the respective marks, the Examining Attorney
correctly notes in her brief that the proper test for determining
likelihood of confusion is not whether the marks at issue are
distinguishable on such a basis, but whether they create
basically the same overall commercial impression. The reason
therefor is that a side-by-side comparison is ordinarily not the
way that customers will be exposed to the marks. Instead, it is
the similarity of the general overall commercial impression
engendered by the marks which must determine, due to the
fallibility of memory and the concomitant lack of perfect recall,
whether confusion as to source or sponsorship is likely. The
proper emphasis is thus on the recollection of the average
Ser. No. 76/232,799
4
purchaser, who normally retains only a general rather than a
specific impression of marks. See, e.g., Grandpa Pidgeon's of
Missouri, Inc. v. Borgsmiller, 477 F.2d 586, 177 USPQ 573, 574
(CCPA 1973); Envirotech Corp. v. Solaron Corp., 211 USPQ 724, 733
(TTAB 1981); and Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975).
With the foregoing in mind, we agree with the Examining
Attorney that, when considered in their entireties, the marks
"E-Z GRILL" and design and "EASY GRILL" and design are so
substantially similar that, if used in connection with the same
or closely related goods, confusion as to source or sponsorship
would be likely to occur. Applicant's and registrant's marks, as
the Examining Attorney accurately points out in her brief, are
identical in sound and connotation because their literal portions
are phonetic equivalents. In terms of appearance, applicant's
mark contains what it characterizes as a clock and flame design,
although such design, to us, could also reasonably be regarded as
a grill and flame design. Although the design element in
applicant's mark is absent from registrant's mark, we concur with
the Examining Attorney that such element "does not obviate the
likelihood of confusion." In particular, while such element,
depending on how it is viewed, may serve either to suggest a
reason why applicant's goods are easy to grill, namely, that they
cook quickly over an open flame, or to reinforce the fact that
applicant's goods are intended to be grilled, the overall
commercial impression engendered by applicant's mark is the same
Ser. No. 76/232,799
5
as that projected by registrant's mark, namely, food products
that are easily grilled or easy to grill.
Turning, then, to consideration of the respective
goods, applicant argues that its pork, beef, chicken and turkey
for use in sandwiches are products which "are entirely unrelated
to the goods provided by the registrant, namely, frozen fish."
While conceding that, "obviously[,] frozen fish and pork, beef,
chicken and turkey for use in sandwiches are all food items,"
applicant insists that "it cannot be said that the goods are so
related as to cause a likelihood of confusion." Applicant, in
particular, asserts in this regard that:
Frozen fish typically is sold in the
frozen food section of grocery stores.
Applicant's goods are not sold from the
frozen food section of grocery stores.
Typically, applicant's goods are sold to
restaurants, hotels and institutions for
their use in preparing grilled sandwiches.
The channels of trade, therefore, are so
dissimilar as to avoid a likelihood of
confusion.
We concur with the Examining Attorney, however, that as
identified in applicant's application and the cited registration,
the goods at issue are so closely related that, when marketed
under the substantially similar marks "E-Z GRILL" and design and
"EASY GRILL" and design, confusion as to their source or
sponsorship is likely to occur. It is well settled, as the
Examining Attorney notes in her brief, that the issue of
likelihood of confusion must be determined on the basis of the
goods as they are set forth in the involved application and the
cited registration, and not in light of what such goods are
asserted to actually be. See, e.g., Octocom Systems Inc. v.
Ser. No. 76/232,799
6
Houston Computer Services Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990); Canadian Imperial Bank of Commerce, N.A.
v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815-16 (Fed.
Cir. 1987); CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199
(Fed. Cir. 1983); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ
937, 940 (Fed. Cir. 1983); and Paula Payne Products Co. v.
Johnson Publishing Co., Inc., 473 F.2d 901, 177 USPQ 76, 77 (CCPA
1973). Thus, as is the case herein, where an applicant's and a
registrant's goods are broadly described as to their nature and
type, it is presumed in each instance that in scope the
application and registration encompass not only all goods of the
nature and type described therein, but that the identified goods
move in all channels of trade which would be normal for those
goods and that they would be purchased by all potential buyers
thereof. See, e.g., In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
As the Examining Attorney, in light of the above,
accurately observes, registrant's goods are broadly identified as
"frozen fish" and, in view thereof, such goods include fish for
use in sandwiches. Similarly, she points out that because
applicant's goods are broadly set forth as "pork, beef, chicken
and turkey for use in sandwiches," such goods are not limited to
meat products which are principally sold to hotels, restaurants
and/or institutions. Thus, as she further correctly notes,
"[t]he same consumers will be exposed to the goods identified
with both marks." Ordinary consumers, for instance, can
therefore be expected to encounter applicant's meats for
sandwiches in the same grocery stores, supermarkets, mass
Ser. No. 76/232,799
7
merchant discount outlets and other food retailers as those which
market registrant's frozen fish.
Moreover, the Examining Attorney properly points out
that it is well established that goods need not be identical or
even competitive in nature in order to support a finding of
likelihood of confusion. It is sufficient, instead, that the
goods are related in some manner and/or that the circumstances
surrounding their marketing are such that they would be likely to
be encountered by the same persons under situations that would
give rise, because of the marks employed in connection therewith,
to the mistaken belief that they originate from or are in some
way associated with the same producer or provider. See, e.g.,
Monsanto Co. v. Enviro-Chem Corp., 199 USPQ 590, 595-96 (TTAB
1978) and In re International Telephone & Telegraph Corp., 197
USPQ 910, 911 (TTAB 1978). Here, the record contains evidence
showing that applicant's goods are closely related to
registrant's goods in a commercial sense, such that purchasers
thereof would be likely to attribute a common origin to the
respective goods when sold under the marks at issue.
Specifically, the Examining Attorney has made of record
copies of over 30 use-based third-party registrations for marks
which are registered for, inter alia, "frozen poultry," "frozen
meat," "frozen pork," "frozen beef," "frozen chicken," "frozen
prepared chicken," "frozen and packaged meat" or "processed
meats," on the one hand, and "frozen fish," "frozen seafood,"
"frozen prepared seafood" or "frozen and packaged ... fish," on
the other. While such registrations are admittedly not evidence
Ser. No. 76/232,799
8
that the different marks shown therein are in use or that the
public is familiar with them, they nevertheless have some
probative value to the extent that they serve to suggest that the
goods listed therein are of the kinds which may emanate from a
single source. See, e.g., In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993) and In re Mucky Duck Mustard Co.
Inc., 6 USPQ2d 1467, 1470 at n. 6 (TTAB 1988). In addition, as
the Examining Attorney accurately observes, the specimens of use
with respect to applicant's goods bear the instruction "KEEP
FROZEN," thereby indicating that, like registrant's frozen fish,
applicant's pork, beef, chicken and turkey for use in sandwiches
are sold as frozen goods. In view thereof it is plain that both
applicant's and registrant's products would be sold in the frozen
food sections of retail food outlets and would be sold in frozen
form to commercial customers, such as restaurants, hotels and
institutions, for use in preparing grilled sandwiches.
Accordingly, we conclude that customers who are
familiar or acquainted with registrant's mark "EASY GRILL" and
design for its "frozen fish" would be likely to believe, upon
encountering applicant's substantially similar mark "E-Z GRILL"
and design for its "pork, beef, chicken and turkey for use in
sandwiches," that such closely related goods emanate from, or are
sponsored by or associated with, the same source.
Decision: The refusal under Section 2(d) is affirmed.