Life Data Labs, Inc.v.Helfter Enterprises, Inc.

Trademark Trial and Appeal Board

Jun 30, 1998

No. 92024398 (T.T.A.B. Jun. 30, 1998)

Paper No. 17
JQ
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 6/30/98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Life Data Labs, Inc.
v.
Helfter Enterprises, Inc.
_____
Cancellation No. 24,398
_____
Adrienne L. White of Burns, Doane, Swecker & Mathis for Life
Data Labs, Inc.
John E. Cepican of Henderson & Sturm for Helfter
Enterprises, Inc.
_____
Before Simms, Cissel and Quinn, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
Life Data Labs, Inc. has petitioned to cancel the
registration owned by Helfter Enterprises, Inc., doing
business as Advanced Biological Concepts, for the mark
FARRIER’S CHOICE for “nutritional additives for livestock
feed.”1
As grounds for cancellation, petitioner asserts
priority and likelihood of confusion under Section 2(d) of

1 Registration No. 1,859,439, issued October 25, 1994.
Cancellation No. 24,398
2
the Trademark Act, contending that respondent’s mark, when
applied to respondent’s goods, so resembles petitioner’s
previously used mark FARRIER’S FORMULA for nutritional
supplements for animals as to be likely to cause confusion.
Respondent, in the answer, admitted that its first use
of its mark occurred on November 2, 1993. Respondent
otherwise denied the allegations relating to likelihood of
confusion.
The record includes the pleadings; the file of the
involved registration; trial testimony, with related
exhibits, taken by petitioner; and the file history of
petitioner’s application serial no. 74/559,803, two third-
party registrations and a certified copy of a corporation
report issued by the Illinois Secretary of State, all
introduced by way of petitioner’s notice of reliance.
Respondent neither took testimony nor offered any other
evidence. Only petitioner filed a brief.
According to Linda Gravlee, petitioner’s president,
petitioner manufactures animal nutritional products.
Petitioner has continuously used since 1985 the mark
FARRIER’S FORMULA to identify nutritional supplements used
in the equine industry. Petitioner typically sells about
100,000 pounds of this product each month, and annual sales
generally exceed $1 million. The product is advertised in
magazines, trade journals and at trade shows. Petitioner’s
Cancellation No. 24,398
3
application to register its mark for “nutritional
supplements for animals” has been refused registration
pursuant to Section 2(d) on the basis of respondent’s
registration.
Our determination under Section 2(d) is based on an
analysis of all of the probative factors in evidence that
are relevant to the factors bearing on the likelihood of
confusion issue. In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods.
We first turn our attention to the goods. Petitioner’s
nutritional supplements for animals and respondent’s
nutritional additives for livestock feed are, for purposes
of our legal analysis, essentially identical. In point of
fact, both products are intended specifically to improve the
health of equine hoofs. The goods would appear to travel in
the identical channels of trade to the same classes of
purchasers. When marks are applied to identical goods, “the
degree of similarity [between the marks] necessary to
support a conclusion of likely confusion declines.” Century
21 Real Estate Corp. v. Century Life of America, 970 F.2d
874, 23 USPQ2d 1698, 1700 (Fed Cir. 1992).
Cancellation No. 24,398
4
With respect to the marks, we find that FARRIER’S
FORMULA and FARRIER’S CHOICE, when applied to essentially
identical goods, engender similar overall commercial
impressions. Both marks begin with the same term
“Farrier’s,” followed by terms which, when considered in the
context of the goods, convey somewhat similar meanings.
That is to say, both marks convey the idea that the
nutritional additives or supplements consist of the
formulation of choice among farriers (i.e., blacksmiths) or
the trade. The connotation is that the product is the one
preferred or used by farriers.
Petitioner contends that its mark is “well known” and
“strong” and, indeed, petitioner has enjoyed success with
the products sold under the mark FARRIER’S FORMULA.
Further, the record is devoid of evidence of any third-party
uses or registrations of similar marks for animal
nutritional products. Although we are willing to accept the
claim that its mark is well known and strong in the trade (a
claim which is not disputed by respondent), we do not
accord, however, the status of “famous mark” to the mark
FARRIER’S FORMULA. Cf.: Kenner Parker Toys v. Rose Art
Industries, 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir.
1992).
Petitioner has introduced evidence of actual confusion.
Ms. Gravlee testified regarding misdirected telephone calls,
Cancellation No. 24,398
5
some of which were documented in petitioner’s business
records (ex. nos. 61-63). Ms. Gravlee has handled some
misdirected calls herself, indicating that “some of the
customers are somewhat angry because they can’t understand
the fact that there are two products and they have such
similar names.” (dep., p. 35) Ms. Gravlee also testified
that “distributors tell us that they can sell the Farrier’s
Choice easier than they can sell the Farrier’s Formula
because it is a cheaper product and people don’t really know
the difference in Farrier’s Choice and Farrier’s Formula
because of the similarities in the name.” (dep., p. 35)
Further, there is a misdirected letter (ex. no. 64) and an
e-mail message (ex. no. 65) wherein the writer asked “[i]s
Farrier’s Choice the same as Farrier’s Formula?”
The applicable test here is likelihood of confusion,
not actual confusion, and, as often stated, it is
unnecessary to show actual confusion in establishing
likelihood of confusion. See, e.g., Weiss Associates Inc.
v. HRL Associates Inc., 902 F.2d 1546, 1549, 14 USPQ2d 1840,
1842-3 (Fed. Cir. 1990). Nonetheless, the evidence suggests
that actual confusion has occurred in the marketplace,
thereby buttressing our finding of a likelihood of
confusion.
Lastly, petitioner has questioned the good faith
adoption by respondent of its mark. The record reveals that
Cancellation No. 24,398
6
John Claudon is a former distributor of petitioner’s
FARRIER’S FORMULA brand products. Ms. Gravlee testified
that this business relationship was terminated due to
problems in collecting payment from Mr. Claudon, with the
last sales to Mr. Claudon occurring in September 1993. Mr.
Claudon went on to join with another manufacturer,
respondent, in distributing nutritional supplements for
animals under the involved mark FARRIER’S CHOICE. The date
of first use set forth in the involved registration is
November 2, 1993.
Although respondent’s alleged first use follows closely
on the heels of the events involving Mr. Claudon, the record
falls short in establishing bad faith adoption by
respondent. That is to say, there is nothing in the record
to show specifically what respondent itself knew when the
involved mark was adopted.
In view of the above, we conclude that purchasers
familiar with petitioner’s animal nutritional products sold
under the mark FARRIER’S FORMULA would be likely to believe,
upon encountering respondent’s mark FARRIER’S CHOICE for
nutritional additives for livestock feed, that the goods
originated with or were somehow associated with or sponsored
by the same entity.
Cancellation No. 24,398
7
Decision: The petition for cancellation is granted and
Registration No. 1,859,439 will be canceled in due course.
R. L. Simms
R. F. Cissel
T. J. Quinn
Administrative Trademark
Judges, Trademark Trial
and Appeal Board