No. 76633814 (T.T.A.B. Jan. 4, 2010)

Land O Sky, LLC

Trademark Trial and Appeal BoardJan 4, 2010

No. 76633814 (T.T.A.B. Jan. 4, 2010)

Mailed: January 4, 2010 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Land O Sky, LLC ________ Serial No. 76633814 Serial No. 76633815 _______ Richard M. Moose of Dority & Manning, P.A. for Land O Sky, LLC. Drew Leaser, Trademark Examining Attorney, Law Office 112 (Angela Bishop Wilson, Managing Attorney).1 _______ Before Bucher, Cataldo and Bergsman, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Land O Sky, LLC filed intent-to-use applications for the HARVEST FARMS and design marks, shown below. 2 1 The Examining Attorney identified above was assigned responsibility for this case during the briefing of the appeal. 2 Serial No. 76633814. THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Serial No. 76633814 Serial No. 76633815 2 Applicant disclaimed the exclusive right to use “Farms” and “Organic.” 3 Applicant disclaimed the exclusive right to use “Farms” and “Natural.” The description of goods in application Serial No. 76633814 for HARVEST FARMS ORGANIC and design is set forth below (emphasis added). The description of goods in application Serial No. 76633815 for HARVEST FARMS NATURAL and design is essentially the same, but does not include the restriction “all of the foregoing comprising organic products and/or made of organic material and/or ingredients.” Detergent soaps, all of the foregoing comprising organic products and/or made of organic material and/or ingredients, in Class 3; Dietetic foods adapted for medical use, all of the foregoing comprising organic products and/or made of organic material and/or ingredients, in Class 5; Bathroom tissue; paper filters for coffee makers; paper diapers; facial tissue; paper napkins, and paper towels, all of the foregoing comprising organic 3 Serial No. 76633815. Serial No. 76633814 Serial No. 76633815 3 products and/or made of organic material and/or ingredients, in Class 16; Applesauce, bacon, baked beans, butter and margarine, canned fruit, canned cooked meat; canned milk; canned soup; canned vegetables; cheese; non-dairy coffee creamers; cooking oil, cottage cheese, cream cheese; non-dairy creamers, eggs; dips excluding salsa and other sauces used as dips; dried fruit, dried beans, dried soup, egg substitutes, frozen chicken, frozen entrees consisting primarily of meat[,] fish, poultry or vegetables, frozen fish, frozen fruit, frozen meat, frozen onion rings, frozen potatoes, frozen shrimp, frozen vegetables sold in bags, frozen whipped topping, fruit-based snack foods, instant potatoes, jelly, luncheon meats, milk, processed nuts, roasted nuts, processed olives, Parmesan cheese, peanut butter, pickles, fruit-based pie filling, potato chips, refrigerated dairy-based dips, refrigerated milk, sausage, shortening, snack mix consisting primarily of processed fruits, processed nuts and/or raisins, sour cream, and yogurt, all for sale in retail grocery stores, all of the foregoing comprising organic products and/or made of organic material and/or ingredients, in Class 29; Rice sold in bags and boxes; bagels; baking mixes, namely, cake mixes; frosting; bread; bread crumbs; breakfast bars, namely, ready to eat breakfast bars and cereal derived food bars; candy; canned pasta, processed cereals, breakfast cereals; frozen, prepared and packaged Chinese food meals consisting primarily of pasta or rice; cocoa; coffee; condiments, namely, mustard and ketchup; cookies and crackers, croutons; desserts, namely, bakery desserts; salad dressing mixes; dried pasta; flour and cornmeal; frozen bread; frozen entrees consisting primarily of pasta or rice; frozen hushpuppies; frozen pie shells; frozen pizza; grits; honey; ice cream; cones for ice cream; marshmallows; mayonnaise; frozen, prepared and packaged Mexican food meals consisting primarily of pasta or rice; microwave popcorn; oatmeal; pancake mix; chocolate-based pie fillings; custard-based pie fillings; popcorn; pretzels, refrigerated dough; refrigerated pudding; refrigerated tortillas; rice cakes; salad dressings; sauces; sherbet; snack cakes; snack crackers; snack mix consisting primarily of Serial No. 76633814 Serial No. 76633815 4 crackers, pretzels, candied nuts and/or popped popcorn; spaghetti sauce; spices; stuffing mixes containing bread; sugar, corn syrup and table syrup; tea; toaster pastries; vinegar; mineral water and sparkling water, all of the foregoing comprising organic products and/or made of organic material and/or ingredients, in Class 30; Cat food; unprocessed cereals; dog biscuits; dog treats; and dog foods, all of the foregoing comprising organic products and/or made of organic material and/or ingredients, in Class 31; and, Bottled apple juice and pineapple juice; canned apple juice and pineapple juice; chilled apple juice and pineapple juice; flavored waters; frozen apple juice and pineapple juice; and soft drinks, all of the foregoing comprising organic products and/or made of organic material and/or ingredients, in Class 32. Registration has been refused under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. §1052(d), on the ground that applicant’s marks, when used in connection with the products listed in the applications, so resemble the mark HARVEST FARMS, in typed drawing form, for “cheese” as to be likely to cause confusion.4 Because the applications are owned by the same applicant and involve common issues of fact and law, we have consolidated the appeals. Our determination of likelihood of confusion under Section 2(d) is based on an analysis of all of the 4 Registration No. 2603303, issued August 6, 2002; Sections 8 and 15 affidavits accepted and acknowledged. Registrant disclaimed the exclusive right to use “Farms.” Serial No. 76633814 Serial No. 76633815 5 probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and/or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). A. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. We turn first to the du Pont factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177 USPQ at 567. In a particular case, any one of these means of comparison may be critical in finding the marks to be similar. In re White Swan Ltd., 9 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1988). In analyzing the similarity or dissimilarity of the marks, we are mindful that the test is not whether the marks can be distinguished when subjected to a side-by- side comparison, but rather whether the marks are Serial No. 76633814 Serial No. 76633815 6 sufficiently similar in terms of overall commercial impression so that confusion as to the source of the goods offered under the respective marks is likely to result. San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1835, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5, 1992). In making this determination, we must consider the recollection of the average purchaser who normally retains only a general, rather than a specific, impression of the marks. Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Because the products at issue are primarily standard consumer products, the average purchaser is the average person. While marks must be compared in their entireties, it is not improper to accord more or less weight to a particular feature of a mark. In re National Data Corp., 753 F.2d 1056, 24 USPQ2d 749, 751 (Fed. Cir. 1983). In the case of marks consisting of words and a design, the words are normally given greater weight because they would be used by consumers to request the products. In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999); In re Appetito Provisions Co., 2 USPQ2d 1553, 1554 (TTAB 1987). Serial No. 76633814 Serial No. 76633815 7 Thus, the name HARVEST FARMS is the dominant portion of applicant’s marks. Applicant argues to the contrary and asserts that the farm scene will prevent confusion.5 However, we find that the farm scene highlights the HARVEST FARMS word mark thereby strengthening the impact of the name. See Herbko International Inc. v. Kappa Books Inc., 308 F.2d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (“words dominated the design feature” where the design portion of applicant’s mark reinforced the connotation of the words). This conclusion is supported by Applicant’s evidence submitted with its November 7, 2008, response. In Exhibit B of that response, Applicant included 15 pictures of product packaging for third party (sic) goods that incorporated farm scenes similar to the farm scene employed by Applicant in its applied-for mark. This evidence demonstrates that consumers are accustomed to seeing similar types of farm scenes on products emanating from a variety of sources. As such, consumers are not likely to associate any source-identifying significance with Applicant’s non-distinctive farm scene.6 Furthermore, the name “Harvest Farms” in applicant’s marks is the dominant word portion of the marks because the 5 Applicant’s Brief, p. 13. 6 Examining Attorney Brief, unnumbered p. 12. Serial No. 76633814 Serial No. 76633815 8 words “Organic” and “Natural” are descriptive of applicant’s products. Applicant acknowledged the descriptive nature of these words by disclaiming the exclusive right to use them in response to the Examining Attorney’s requirement for a disclaimer based on their descriptive nature. It is well-settled that disclaimed, descriptive matter may have 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., 24 USPQ2d at 752 (“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 Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s commercial impression”). In is unlikely that consumers will use the descriptive words “Organic” and “Natural” to distinguish the marks. To the contrary, consumers may perceive the addition of the words “Organic” and “Natural” to symbolize an extension of registrant’s HARVEST FARMS product line. In comparing the registered mark and applicant’s marks, we note that applicant’s marks incorporate the entire registered mark. Likelihood of confusion is often Serial No. 76633814 Serial No. 76633815 9 found where the entirety of one mark is incorporated within another. The Wella Corp, v. California Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977) (CALIFORNIA CONCEPT and surfer design for men’s cologne, hair spray, conditioner and shampoo is likely to cause confusion with the mark CONCEPT for cold permanent wave lotion and neutralizer); Coca-Cola Bottling Co. v. Seagram & Sons, Inc., 526 F.2d 556, 188 USPQ 105, 106 (CCPA 1975) (BENGAL LANCER and soldier design for club soda, quinine water and ginger ale is likely to cause confusion with BENGAL LANCER for gin); In re West Point-Pepperell, Inc., 468 F.2d 200, 175 USPQ 558 (CCPA 1972) (WEST POINT PEPPERELL and griffin design for fabrics is likely to cause confusion with WEST POINT for woolen piece goods). As indicated above, because the farm scene in applicant’s mark emphasizes the name HARVEST FARMS, the design portion does not distinguish applicant’s marks from the registered mark. Because the name HARVEST FARMS is the dominant portion of applicant’s marks and the entirety of the registered mark, we find that the marks are similar in appearance, sound, meaning and commercial impression. Serial No. 76633814 Serial No. 76633815 10 B. The similarity or dissimilarity and nature of the goods, channels of trade, classes of consumers and the degree of consumer care. We respect to the goods, we point out that likelihood of confusion must be found with respect to the entire class of goods in the application if there is likely to be confusion with respect to any item that comes within the description of goods in that class. Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). Thus, the Examining Attorney need not prove that each of the goods in each class of the application is related to each of the goods in the cited registration. Applicant’s description of goods in Class 29 includes, inter alia, “cheese.” Applicant’s restriction of its goods to foods “for sale in retail grocery stores” and, in the case of HARVEST FARMS ORGANIC, “comprising organic products and/or made of organic material and/or organic ingredients” does not affect our analysis because the registrant’s products are broadly identified as cheese. Therefore, we must assume that registrant’s goods encompass all cheese, including cheese sold in retail grocery stores as well as organic cheese. In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). Thus, applicant’s goods in Class 29 are in part identical to the goods in the cited registration. Serial No. 76633814 Serial No. 76633815 11 Because these goods are identical, they must be deemed to be sold in the same channels of trade and to the same classes of consumers. Id. As for the remaining classes of goods, it is not necessary that the goods identified in an application and the cited registration be similar or competitive, or even that they move in the same channels of trade, to support a holding of likelihood of confusion. It is sufficient that the respective goods are such that they would or could, because of the similarity of the marks, give rise to the mistaken belief that they originate form the same producer. In re International Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). The Examining Attorney has submitted numerous third- party registrations to show the relatedness of at least some of the goods in each class of applicant’s applications to those in the cited registration. Third-party registrations which individually cover a number of different items and which are based on use in commerce serve to suggest that the listed goods are of a type which may emanate from a single source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993). However, many of the third-party registrations submitted by the Examining Attorney are in the nature of house marks that Serial No. 76633814 Serial No. 76633815 12 include a wide variety of goods and services. As such, these registrations are of little probative value in showing that the goods for which they are registered are all related. See In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (the Board discounted the probative value of two registrations for Saks & Company and Knott’s Berry Farm, owners of a large department store and an amusement park, where a wide variety of goods and services are sold). For example, Registration No. 3055791 for the mark PEACEKEEPER is registered for, inter alia, cheese and furniture polish, skin cleansers, and lipstick; and Registration No. 2380362 for the mark SYSCO is registered for, inter alia, cheese, floor cleaner, insecticidal fly bait, manually operated knife sharpeners, neon signs, urinal screens and financial management services in the healthcare industry. Furthermore, many of the third-party registrations are owned by supermarkets that sell their own brand of virtually every product. In that marketing milieu, consumers do not perceive the supermarket house brand, appearing on a wide variety of products, as necessarily signaling that all such branded products are commercially related products. Otherwise, giving such third-party registrations probative value would in effect create a “per Serial No. 76633814 Serial No. 76633815 13 se” rule that all products and services available in a modern supermarket are related. In this regard, the fact that applicant has applied to register a wide variety of products does not change the perception of consumers or give the third-party registrations any added probative value. In fact, applicant had originally included retail grocery store services in its applications, but withdrew it to avoid a likelihood of confusion citation with another registration. In other words, the fact that applicant intends to use the marks at issue to identify a laundry list of products, presumably in a supermarket, does not mean that consumers will ipso facto find that all the products are related. When we eliminate third-party registrations that include a wide variety of products or are owned by supermarkets, there is insufficient evidence to establish a relationship or nexus between applicant’s “detergent soaps,” in Class 5, “dietetic foods adapted for medical use,” in Class 5, paper products, in Class 16, pet foods, in Class 31, and fruit juices, in Class 32, and registrant’s cheese. On the other hand, the record is sufficient to show that consumers may believe that the food products identified in Class 30 are related to registrant’s cheese. Serial No. 76633814 Serial No. 76633815 14 With respect to the channels of trade and classes of consumers, as indicated above, all the products are consumer goods that may be purchased by the general public and, therefore, they may be encountered by the same classes of consumers. Moreover, because they are general consumer items, the purchasers cannot be presumed to have any particular expertise or sophistication; in addition, because the goods as identified can include inexpensive items, they may be bought without great care. C. The number of similar marks that are used with similar services. Applicant contends that the mark in the cited registration, HARVEST FARMS, is entitled to only a narrow scope of protection because that term has been registered several times for similar goods.7 Applicant specifically references the following registrations: 1. Registration No. 3602890 for the mark HARVEST MANOR FARMS for food products registered in Classes 29, 30 and 31, as well as the preparation of a pre-arranged gift basket featuring a selection of cheeses, in Class 45; and, 2. Registration No. 3125951 for the mark SUN HARVEST FARMS for retail grocery, health food and vitamin store services and retail delicatessen services, in Class 35. 7 Applicant’s Brief, p. 9. Serial No. 76633814 Serial No. 76633815 15 There are a number of problems with applicant’s argument. The two third-party registrations that applicant made of record fail to demonstrate that the third-party registered marks are actually being used, much less that the extent of such third-party use is so great that consumers have become accustomed to seeing various HARVEST FARMS marks and, therefore, have learned to distinguish between them. See 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); AMF Inc. v. American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); In re Mucky Duck Mustard Co., 6 USPQ2d at 1470 n.6. While third-party registrations may be used in the manner of a dictionary to show that a mark or a portion of a mark is descriptive or suggestive of goods and services, two third-party registrations do not prove that the term HARVEST FARMS is so weak and diluted that applicant’s addition of a farm scene and the descriptive words “Organic” or “Natural” are sufficient to distinguish the marks when they are used in connection with related products. Serial No. 76633814 Serial No. 76633815 16 Another problem with applicant’s third-party registrations is that the registration for the mark HARVEST MANOR FARMS is different from the marks at issue because the words “Harvest” and “Farms” are separated by the word “Manor.” In short, applicant has submitted only one registration displaying HARVEST FARMS as a unitary term. Considering that only one other registrant has adopted the term HARVEST FARMS, the third-party registration evidence does not support applicant’s argument that HARVEST FARMS is a weak mark. Moreover, two third-party registrations owned by two different entities does not, in our view, justify the registration of another confusingly similar mark. AMF Inc. v. American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); Plus Products v. Star-Kist Foods, Inc., 220 USPQ 541, 544 (TTAB 1983). However, even if we were to concede that HARVEST FARMS is a weak mark, it is well established that even the owner of a weak mark is entitled to be protected from a likelihood of confusion with another’s use of the same or confusingly similar mark. Giant Foods, Inc. v. Ross and Mastracco, Inc., 218 USPQ 521, 526 (TTAB 1982). Applicant’s reliance on In re Dayco Products- Eaglemotive Inc., 9 USPQ2d 1910 (TTAB 1988) (IMPERIAL for automobiles is not likely to cause confusion with IMPERIAL Serial No. 76633814 Serial No. 76633815 17 for automotive parts because the weakness of the word “Imperial” is a significant factor in determining likelihood of confusion) is unpersuasive. First, the Board found that IMPERIAL was a “laudatory designation which should be afforded a more restricted scope of protection than would an arbitrary designation.” 9 USPQ2d at 1911. HARVEST FARMS is not a laudatory designation; it is an arbitrary, or at worst a suggestive, designation. Furthermore, in Dayco, the applicant submitted at least eleven third-party registrations that comprise the word “Imperial” by itself or as part of a composite mark. Applicant also contends that the word “Harvest” is weak when used in connection with food products. To support its contention, applicant submitted the summary of the search results shown below for the word “Harvest” for live/active records in Classes 29, 30 and 32. The submission of a copy of a search report is not proper evidence of third-party registrations. In re Hub Distributing, Inc., 218 USPQ 284 (TTAB 1983). To make registrations of record, soft copies of the registrations or the complete electronic equivalent (i.e., complete Serial No. 76633814 Serial No. 76633815 18 printouts taken from any of the USPTO’s automated systems (X-Search, TESS, TARR, or TRAM)) must be submitted. Raccioppi v. Apogee Inc., 47 USPQ2d 1368, 1370 (TTAB 1998); In re Volvo Cars of North America Inc., 46 USPQ2d 1455 (TTAB 1998); In re Broadway Chicken Inc., 38 USPQ2d 1559, 1561 n.6 (TTAB 1996); In re Smith & Mehaffey, 31 USPQ2d 1531, 1532 n.3 (TTAB 1994); Weyerhaeuser Co. v. Katz, 24 USPQ2d 1230, 1231-32 (TTAB 1992). Where, as here, the applicant submits improper evidence of third-party registrations, the examining attorney should object to the evidence in the next Office action, or the Board may consider the objection to be waived. See In re 1st USA Realty Professionals, 84 USPQ2d 1581 (TTAB 2007) (Board considered applicant’s own registration, provided for the first time on appeal, because it had been referred to during prosecution and the examining attorney addressed the issue without objection; Board also allowed evidence of a list of third-party registrations because the examining attorney did not advise applicant of the insufficiency of the list while there was still time to correct the mistake); In re Broyhill Furniture Industries, Inc., 60 USPQ2d 1511, 1513 n.3 (TTAB 2001) (objection to evidence waived where it was not interposed in response to applicant’s reliance on listing of third-party Serial No. 76633814 Serial No. 76633815 19 registrations in response to initial Office action). Because the examining attorney did not lodge an objection, we consider applicant’s search summary for whatever probative value it may have which, in this case, is very little. First, it is not clear what percentage of results are registrations as opposed to applications. An application has “no probative value other than as evidence that the application was filed.” In re Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1049 n.4 (TTAB 2002). Second, the summary does not indicate how many of the references are duplicates. Finally, since applicant did not identify the marks retrieved and the associated goods identified in the registrations, any conclusions that we could draw would be sheer speculation. E. Balancing the factors. The du Pont factors require to us to consider the thirteen factors for which evidence has been made of record in likelihood of confusion cases. Keeping in mind that the dominant portion of applicant’s marks is the name HARVEST FARMS which is identical to the mark in the cited registration, we find that the examining attorney has shown a sufficient relationship between the goods in Classes 29 and 30 to support a likelihood of confusion. However, the examining attorney has not met his burden of proof with Serial No. 76633814 Serial No. 76633815 20 respect to the goods identified in Classes 3, 5, 16, 31 and 32 and, therefore, with respect to the goods in those classes, we find that there is no likelihood of confusion. Decision: The refusals to register applicant’s marks under Section 2(d) are affirmed with respect to Classes 29 and 30. The refusals to register applicant’s marks under section 2(d) are reversed with respect to Classes 3, 5, 16, 31, and 32.