Local Urban Vegetables, LLLP

Trademark Trial and Appeal Board

Feb 25, 2019

EX (T.T.A.B. Feb. 25, 2019)

Mailed: February 25, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Local Urban Vegetables, LLLP
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Serial Nos. 86829745 and 86829746 (consolidated)
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Jill M. Pietrini and Michael C. Herrera of Sheppard Mullin Richter & Hampton
LLP, for Local Urban Vegetables, LLLP.
James MacFarlane, Trademark Examining Attorney, Law Office 104,
Dayna Browne, Managing Attorney.
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Before Zervas, Hightower, and Coggins,
Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
Applicant Local Urban Vegetables, LLLP seeks registration on the Principal
Register of the mark LUV, in standard characters, for “fresh fruits and fresh
vegetables” in International Class 31 (the “’745 Application”) and “farming in the field
of fresh produce” in International Class 44 (the “’746 Application”).1

1 Applications Serial Nos. 86829745 and 86829746, respectively, were filed November 23,
2015, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s
allegation of a bona fide intention to use the mark in commerce.
This Opinion Is Not a
Precedent of the TTAB
Serial Nos. 86829745 and 86829746

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The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark LUV, as
applied to the goods and services identified in the applications, so resembles the
typeset mark LOVE for “fresh fruit and vegetables” in International Class 312 as to
be likely to cause confusion, to cause mistake, or to deceive.
After the Examining Attorney made the refusals final, Applicant requested
reconsideration and appealed to this Board. Reconsideration was denied, proceedings
resumed, and Applicant filed its appeal briefs. 8 TTABVUE.3 The Board granted the
Examining Attorney’s motion to consolidate the appeals, and the Examining Attorney
filed his statement. 12-15 TTABVUE. The Board then granted Applicant’s motion to
suspend proceedings pending renewal of the cited registration under Section 9 of the
Trademark Act, 15 U.S.C. § 1059. 16-17 TTABVUE. After the cited registration was
renewed, proceedings resumed. 18 TTABVUE. We affirm the refusal to register.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all 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 Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003). In any likelihood of confusion analysis, however, two key considerations are

2 Registration No. 2191439, issued September 22, 1998; renewed. Before November 2, 2003,
“standard character” drawings were known as “typed” drawings. A typed mark is the legal
equivalent of a standard character mark. TMEP § 807.03(i) (October 2018).
3 Citations are to the record for the ’746 Application.
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the similarities between the marks and the similarities between the goods and
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976) (“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.”).
Similarity of the Goods and Services and Channels of Trade
We first consider the second and third du Pont factors, the similarity of the goods
and services, channels of trade, and classes of customers. Registrant’s “fresh fruit and
vegetables” are legally identical to the “fresh fruits and fresh vegetables” identified
in the ’745 Application. Because the goods are legally identical, we must presume
that the channels of trade and classes of purchasers are also the same. In re Fat Boys
Water Sports LLC, 118 USPQ2d 1511, 1518-19 (TTAB 2016); see also In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board entitled
to rely on this legal presumption in determining likelihood of confusion).
With respect to the ’746 Application, it is well-recognized that confusion may be
likely to occur from use of the same or similar marks for goods on the one hand and
services involving those goods on the other. See, e.g., In re Detroit Athletic Co., 903
F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); Corinthian Broad. Corp. v.
Nippon Elec. Co., 219 USPQ 733, 735-36 (TTAB 1983). Here, it is evident from the
respective identifications that Applicant’s services “farming in the field of fresh
produce” are highly related to the goods in the cited registration, “fresh fruit and
vegetables” – in other words, fresh produce. Relatedness generally would be
recognized because Applicant’s farming services are in the field of the fresh produce
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identified in the cited registration. See In re St. Helena Hosp., 774 F.3d 747, 113
USPQ2d 1082, 1087 (Fed. Cir. 2014); In re Coors Brewing Co., 343 F.3d 1340, 68
USPQ2d 1059, 1064 (Fed. Cir. 2003); Hewlett-Packard Co. v. Packard Press, Inc., 281
F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002). The Examining Attorney,
moreover, introduced evidence that third parties use and have registered the same
mark for both farming services and produce.4 This evidence suggests that the
identified goods and services are of a kind which emanate from a single source under
a single mark. See, e.g., In re I-Coat Co., 126 USPQ2d 1730, 1738 (TTAB 2018); In re
C.H. Hanson Co., 116 USPQ2d 1351, 1355-56 (TTAB 2015). In its appeal briefs,
Applicant does not dispute that its identified goods and services are related to
Registrant’s identified goods. The second and third du Pont factors weigh heavily in
favor of a finding that confusion is likely for both subject applications.
Strength of the Cited Mark
With its request for reconsideration, Applicant submitted evidence of registration
and use of marks incorporating the terms LOVE or LUV for fresh produce or farming
services. This evidence is relevant to the conceptual and commercial strength of the
cited mark, which bear on the scope of protection to which it is entitled. Applicant
argues that LOVE is diluted and suggestive in association with the relevant goods
and services. See Appeal Brief at 7-8, 8 TTABVUE 8-9.

4 March 19, 2016 Office Action at TSDR 3-32 (registrations); October 21, 2016 Final Office
Action at TSDR 28-62 (Internet evidence of use).
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First, Applicant submitted lists of results of searches of the USPTO Trademark
Electronic Search System (TESS) database for marks incorporating “LOVE.”5 Such
lists do not make the underlying registrations of record, but the Examining Attorney
was not required to advise Applicant of their insufficiency, since at the point that
Applicant filed the lists, it no longer had the opportunity to add to the records of the
applications. See In re Lorillard Licensing Co., 99 USPQ2d 1312, 1314-15 n.3
(TTAB 2011); In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581, 1583 (TTAB 2007);
TBMP § 1207.03 (2018). Since the Examining Attorney discussed the lists and treated
them as of record in his brief,6 we consider them for whatever limited probative value
they have. See, e.g., In re Olin Corp., 124 USPQ2d 1327, 1335 n.22 (TTAB 2017); In re
Total Quality Grp. Inc., 51 USPQ2d 1474, 1477 n.6 (TTAB 1999). The lists indicate
that there are 136 live registrations comprising LOVE in International Class 31 and
215 such registrations in International Class 44. Because they do not display the
goods and services identified in the registrations, however, we accord them minimal
probative weight.
Applicant also submitted printouts, from TESS and the Office’s Trademark Status
& Document Retrieval (TSDR) database, of some 12 existing registrations based on
use in the United States for marks incorporating LOVE or LUV for fresh fruits,
vegetables, or both, along with Internet printouts or materials from the registration

5 Request for Reconsideration, Exhibit A, 4 TTABVUE 12-24.
6 See 14 TTABVUE 5.
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files showing use of the marks.7 Some of the more probative examples, all at 4
TTABVUE, include:
Registration
No.
Page
Nos.
Mark Selected Goods
5100581 32-36 293-96
THE LOVE OF THE
LAND Fresh fruit and vegetables
4310046 42-45 174-78 SHARE THE LOVE Fresh fruits and vegetables
4296049 68-72 179-80 SPACES OF LOVE Fresh fruit and vegetables
3805599 104-09
235-41
I LOVE PRODUCE Fresh fruits and vegetables
3020482
1313734
86-91
216-20
127-33
269-77

8

Fresh vegetables

Applicant also submitted Internet evidence of five third-party farms or farm-related
services in the United States incorporating LOVE in their names along with other
matter, including, for example, LOVE FARM ORGANICS, TRUE LOVE FARM, and
BE LOVE TOO FARM.9
The Court of Appeals for the Federal Circuit has instructed that evidence of
extensive use and registration of a term as a mark by others can be “‘powerful on its
face,’ even where the specific extent and impact of the usage has not been

7 Id., Exhibits B-C, 4 TTABVUE 25-321.
8 The two registrations in this row list the same owner.
9 Id., Exhibits D-H, 4 TTABVUE 322-39.
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established.” Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015)
(quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671,
1674 (Fed. Cir. 2015)). In view of the evidence of third-party use and registration of
marks incorporating LOVE and LUV, we find the strength of Registrant’s mark to be
somewhat limited and the mark entitled to a relatively narrow scope of protection.
The du Pont factors assessing the strength of the mark weigh in Applicant’s favor.
Similarity of the Marks
The final du Pont likelihood of confusion factor relevant to this appeal focuses on
“‘the similarity or dissimilarity of the marks in their entireties as to appearance,
sound, connotation and commercial impression.’” Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). “The proper test is not a side-
by-side comparison of the marks, but instead whether the marks are sufficiently
similar in terms of their commercial impression such that persons who encounter the
marks would be likely to assume a connection between the parties.” Coach Servs. Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(citation omitted). For the ’745 Application, because the Applicant’s and Registrant’s
marks would appear on goods that are legally identical, “the degree of similarity
necessary to support a conclusion of likely confusion declines.” Century 21 Real Estate
Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992);
In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB 2016).
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The Examining Attorney submitted evidence that Applicant’s mark, LUV, is an
informal version of Registrant’s mark, LOVE. This includes:
• An entry from MACMILLAN DICTIONARY (macmillandictionary.com/
dictionary/american/luv) stating that the informal noun “luv” is “used in
writing for the word ‘love,’ for example at the end of a message or in an e-
mail.”10
• An entry from NEW OXFORD AMERICAN DICTIONARY 1043 (3d ed. 2010)
defining “luv” as a “nonstandard spelling of LOVE (representing informal
or dialect use).”11
• An entry from THE CONCISE NEW PARTRIDGE DICTIONARY OF SLANG AND
UNCONVENTIONAL ENGLISH 495 (2d ed. 2015) defining the noun “luv” as
“love, especially as a form of address. A variant spelling; also used for
reasons of alphabetic economy in text messaging.”12
The Examining Attorney also made of record evidence that LUV and LOVE are
phonetically identical in the form of dictionary definitions rendering the
pronunciation of “love” as “luv.”13
Applicant, in turn, submitted an entry from the Urban Dictionary comparing and
contrasting “luv” and “love.”14 In that evidence, the top definition of “luv” is:
A casual way of saying you really like someone without
freaking them out by saying I love you. Commonly used by
people early on in relationships, where it is too soon to say
I love you. Luv may develop into love but it is not love.15

10 October 21, 2016 Final Office Action at TSDR 2.
11 Submitted with Examiner’s Statement, 14 TTABVUE 30-33. We grant the Examining
Attorney’s request to take judicial notice of the dictionary definitions filed with his brief.
12 Id. at 35-37.
13 14 TTABVUE 38-15 TTABVUE 5 (RANDOM HOUSE WEBSTER’S UNABRIDGED DICTIONARY
1139) (2d ed. 2001)); 15 TTABVUE 6-12 (WEBSTER’S NEW WORLD COLLEGE DICTIONARY 864
(5th ed. 2014)).
14 September 26, 2016 Response to Office Action, Exhibit 1, TSDR 10-16.
15 Id. at TSDR 11.
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A similar definition of LUV is: “Mild version of love, describing good feelings for
someone . . . . Love is considered to be deeper and stronger, luv is the mild version.”16
Other Urban Dictionary definitions of “luv,” said to be specifically used by teenagers,
include “1. n. A less serious form of love. 2. abr. Short for love.”17
Applicant argues that its mark is dissimilar to the cited mark in appearance,
connotation, and commercial impression. See Appeal Brief at 10-16, 8 TTABVUE 11-
17. We agree with Applicant that LUV and LOVE are visually distinguishable. The
record shows, however, that they are phonetically identical and convey very similar
meanings. We find that the difference in appearance does not outweigh the marks’
similarities in sound and meaning when used for legally identical goods and highly
related services. No evidence of record, moreover, shows use or registration of any
third-party marks containing only the single word LOVE or LUV for fresh produce or
farming services; rather, all incorporate additional matter, making them more
readily distinguishable from Registrant’s mark than Applicant’s mark.
Applicant argues that it
intends to center its business around a revolutionary way
to grow produce in the modern era. . . . In conjunction with
this revolutionary process, Applicant created the LUV
mark, a playful acronym of its corporate name Local Urban
Vegetables, in order to convey this new, edgy, and modern
way of sustainable living and producing.
Appeal Brief at 2, 8 TTABVUE 3. Applicant contends that consumers will distinguish
its mark from Registrant’s on this basis:

16 Id. at TSDR 14.
17 Id. at TSDR 13.
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The mark is clearly an acronym for Applicant’s name Local
Urban Vegetables. Consumers in the marketplace, seeing
the differing spelling, will know that the mark is of a
completely differing origin than the Cited Mark and will
likely conclude that it is an acronym given the name of
Applicant.
Id. at 16, 8 TTABVUE 17.
This argument is not persuasive because Applicant’s name is not part of its mark;
there is no evidence, moreover, that Applicant intends to use the LUV mark in
proximity to its corporate name. Christian Broad. Network, Inc. v. ABS-CBN Int’l, 84
USPQ2d 1560, 1569 (TTAB 2007). It is well-established that the derivation of letter
marks, acronyms, or initialisms are of no particular significance in our analysis
under Section 2(d), especially where, as here, there is no evidence that purchasers
are aware of the derivation. B.V.D. Licensing Corp. v. Rodriguez, 83 USPQ2d 1500,
1508 (TTAB 2007); Edison Bros. Stores, Inc. v. Brutting E.B. Sport-Int’l GmbH, 230
USPQ 530, 533 (TTAB 1986); Aerojet-Gen. Corp. v. Comput. Learning & Sys. Corp.,
170 USPQ 358, 362 (TTAB 1971); see also In re Max Capital Grp. Ltd., 93 USPQ2d
1243, 1247 (TTAB 2010) (stating that mark would be perceived as word MAX, rather
than as an abbreviation for applicant’s company name, “because it is not depicted
with periods or anything that would indicate that MAX stands for the initials of
‘Mutual’ and ‘Aid’ and an abbreviation for ‘Exchange’”).
We bear in mind both the relatively narrow scope of protection for the cited mark
on the one hand and, on the other, that Applicant’s identified goods are legally
identical to Registrant’s, its recited services are highly related to Registrant’s goods,
and so “the degree of similarity necessary to support a conclusion of likely confusion
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declines.” Century 21 Real Estate, 23 USPQ2d at 1700. Considered in their entireties,
we find that Applicant’s mark LUV creates an overall commercial impression similar
to the cited mark LOVE. The first du Pont factor thus weighs in favor of a finding
that confusion is likely.
II. Conclusion
We have considered all arguments and evidence of record as they pertain to the
relevant du Pont likelihood of confusion factors. To the extent that any other du Pont
factors for which no evidence was presented by Applicant or the Examining Attorney
may nonetheless be applicable, we treat them as neutral.
We have found that the first, second, and third du Pont factors weigh in favor of a
finding that confusion is likely as to both subject applications. The strength of the
cited mark weighs in Applicant’s favor, but even a “weak” mark is entitled to
protection against a confusingly similar mark for legally identical goods and highly
related services. See King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400,
182 USPQ 108, 109 (CCPA 1974). We find that Applicant’s mark is likely to cause
confusion with the mark in Registration No. 2191439 when used in association with
the identified goods and services.
Decision: The refusal to register is affirmed as to both applications.