Lakeland Peat Moss, Ltd.

Trademark Trial and Appeal Board

Jul 18, 2000

No. 75283239 (T.T.A.B. Jul. 18, 2000)

Paper No. 9
7/18/00
TH/TR
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JULY 18, 00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Lakeland Peat Moss, Ltd.
________
Serial No. 75/283,239
_______
Ben C. Fetherston,Jr for Lakeland Peat Moss, Ltd.
Caroline Woods, Trademark Examining Attorney, Law Office
110 (Chris A.F. Pedersen, Managing Attorney)
_______
Before Hanak, Hairston and Chapman,, Administrative
Trademark Judges.
Opinion by Hanak, Administrative Trademark Judge:
Lakeland Peat Moss, Ltd. (applicant) seeks to register
GARDENER’S GOLD for “potting soil and soil conditioners for
agricultural, domestic and horticultural use.” The
application was filed on April 29, 1997 with a claimed
first use date of December 31, 1995.
Citing Section 2(d) of the Trademark Act, the
Examining Attorney refused registration on the basis that
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75283239
2
applicant’s mark, as applied to applicant’s goods, is
likely to cause confusion with the mark GARDEN GOLD,
previously registered for “fertilizer.” Registration No.
1,143,019 issued December 16, 1980.
When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining
Attorney filed briefs. Applicant did not request a
hearing.
In any likelihood of confusion analysis, two key
considerations are the similarities of the goods and the
similarities of the marks. Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976) (“The fundamental inquiry mandated by Section 2(d)
goes to the cumulative effect of differences in the
essential characteristics of the goods and differences in
the marks.”)
Considering first the goods, the evidence demonstrates
that potting soil and soil conditioners (applicant’s goods)
are clearly related to fertilizer (registrant’s goods). In
this regard, the Examining Attorney has made of record over
15 third-party registrations showing that various companies
have registered the same marks for, on the one hand,
potting soil and/or soil conditioners, and, on the other
hand, fertilizer. Moreover, it is common knowledge that
Ser No. 75283239
3
gardeners will often use all three types of products
(potting soil, soil conditioners, and fertilizers) together
in an effort to enhance their gardens. Indeed, applicant’s
own brochures for its own GARDENER’S GOLD product states
that one of the benefits of this product is that it helps
plants store fertilizer.
Applicant never disputed that potting soil, soil
conditioners and fertilizers are purchased by the same
individuals (gardeners) and are used in conjunction with
one another. Rather, applicant merely argues that its
products are not directly competitive with registrant’s
fertilizer. (Applicant’s brief page 1). While this is
true, nevertheless, we find that potting soil and soil
conditioners, on the one hand, and fertilizers, on the
other hand, are closely related goods. Moreover,
applicant’s potting soil and soil conditioners are
specifically intended for, among other uses, domestic use.
Because registrant’s identification of goods lists simply
“fertilizer,” this means registrant’s fertilizer
encompasses fertilizer for domestic use. Thus, the
purchasers of applicant’s goods and registrant’s goods
include ordinary, non-professional gardeners who are
certainly not sophisticated with regard to potting soil,
soil conditioners and fertilizers. In addition,
Ser No. 75283239
4
applicant’s own brochure makes it clear that applicant’s
products are sold in very small sizes for use in “small
flower beds” and “small lawns.” Hence, both applicant’s
products and registrant’s fertilizer can be purchased in
very small quantities at minimal prices. Ordinary
purchasers exercise even less care when they are dealing
with small purchases as opposed to more expensive items
such as automobiles.
Turning to a consideration of the marks, we find that
they are very similar in terms of visual appearance,
pronunciation and connotation. At page 1 of its brief,
applicant alleges that “the Examining Attorney improperly
ignores the disclaimed portion of each of the marks
[GARDENER’S and GARDEN], and emphasizes that both marks use
the same primary term ‘Gold’.” To be perfectly clear, we
make our comparison of the marks by considering applicant’s
mark in its entirety vis-a-vis registrant’s mark in its
entirety. In so doing, we find that the first words of
both marks are extremely similar. Both first words consist
of or contain the root word “garden.” The differences in
visual appearance and pronunciation between “garden” and
“gardener’s” are minimal. Moreover, when the two marks are
viewed in their entireties, these visual and oral
similarities are only increased when one takes in
Ser No. 75283239
5
consideration that both marks consist of two words, with
the second word being identical (gold).
In terms of connotation, it should be noted that the
word “garden” is not only a noun, but in addition, it is a
verb defined as “to make, work in or take care of a
garden.” Webster’s New World Dictionary (2nd ed. 1970). Of
course, a gardener is one who takes care of a garden.
Thus, the two marks are extremely similar in terms of
connotation.
In sum, given the fact that the marks are very similar
in terms of visual appearance, pronunciation and
connotation, and the additional fact that the two marks are
used on closely related products which can be inexpensive
and can be purchased by ordinary consumers, we find that
the contemporaneous use of the two marks is likely to cause
confusion.
Decision: The refusal to register is affirmed.
E. W. Hanak
P. T. Hairston
B. A. Chapman
Administrative Trademark Judges
Trademark Trial and Appeal Board