Mars, Incorporatedv.PAGS Inc.

Trademark Trial and Appeal Board

Jul 15, 2019

91221462 (T.T.A.B. Jul. 15, 2019)

This Opinion is not a
Precedent of the TTAB

Hearing: Feb. 12, 2019 Mailed: July 15, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Mars, Incorporated
v.
PAGS Inc.
_____

Opposition No. 91221462
_____

Randall A. Brater, Ross Q. Panko, and Laura E. Zell of Arent Fox LLP,
for Mars, Inc.
Todd Deveau of Thomas|Horstemeyer, LLP,
for PAGS Inc.
_____

Before Denison, Commissioner for Trademarks,
and Mermelstein and Heasley, Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
PAGS Inc., d/b/a Pet-Agree Grooming Supplies (“Applicant”), seeks registration
on the Principal Register of the mark PET-AGREE (in standard characters) for
“wholesale and retail supply store services featuring pet grooming supplies; online
wholesale and retail services featuring pet grooming supplies,” in International Class
35.1

1 Application Serial No. 86235357 was filed on March 28, 2014, based on Applicant’s claim of
first use anywhere and use in commerce since at least as early as April 26, 2003.
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Mars, Incorporated (“Opposer”) opposes registration of Applicant’s mark on the
grounds of likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C.
§ 1052(d), and dilution by blurring under Trademark Act Section 43(c), 15 U.S.C.
§ 1125(c), of its registered marks containing or consisting of the word PEDIGREE,
used in connection with pet food, pet treats, cups, bowls, and other items used to
promote the sale of pet food, and other products and services for and relating to pets.
Opposer claims ownership of the following registered marks:
Mark Reg. No. Reg. Date Goods/Services

0284342 June 23, 1931 Canned dog food
PEDIGREE 1386983 Mar. 18, 1986 Pet food

1631808 Jan. 15, 1991 Pet food

1834853 May 3, 1994 Pet food
PEDIGREE
LITTLE
CHAMPIONS
1948798 Jan. 16, 1996 Pet food
PEDIGREE
PUPPY
1958952 Feb. 27, 1996 Pet food
PEDIGREE
MARROBONE
2077683 July 8, 1997 Food for dogs

4236428 Nov. 6, 2012 Pet food
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Mark Reg. No. Reg. Date Goods/Services

1679350 Mar. 17, 1992 Periodically published journal
pertaining to health care of pets
PEDIGREE
4268435 Jan. 1, 2013 Cups and bowls not of precious
metal or coated therewith;
porcelain mugs and
earthenware mugs, all of the
foregoing used to promote the
sale of pet food

4343941 May 28, 2013 Downloadable computer
software for modifying the
appearance and enabling
transmission of photographs;
downloadable computer game
software; all of the foregoing
used to promote the sale of pet
food
PEDIGREE
FOUNDATION
4168866 July 3, 2012 Promotion of public awareness
about the need for adopting
animals, responsible pet
ownership, and the proper care
and treatment of pets
PEDIGREE
FOUNDATION
4168867 July 3, 2012 Charitable fundraising
2
During the course of the opposition proceeding, Opposer obtained leave to amend
its Notice of Opposition to assert a claim of fraud,3 but later removed that claim.4
Applicant’s Answer to the First Amended Notice of Opposition denies Opposer’s

2 Notice of Opposition ¶¶ 1-3, 1 TTABVUE 11-14, as amended, 46 TTABVUE 6-7 (TESS
printouts of registrations attached). The Notice of Opposition, filed in April 2015, listed six
registrations―nos. 3160098, 3230631, 3788053, 3793895, 3540906, and 3311506―that have
since been cancelled. These cancelled registrations have been given no consideration.
References to the briefs, motions and orders on appeal are to the Board’s TTABVUE docket
system.
3 Motion to amend, 12 TTABVUE, Board Order, 20 TTABVUE.
4 Consent motion to amend first amended notice of opposition, 46 TTABVUE, granted by
Board Order, 48 TTABVUE.
Opposition No. 91221462

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salient claims and interposes four “affirmative defenses” that merely amplify its
denials. See Order of Sons of Italy in Am. v. Profumi Fratelli Nostra AG, 36 USPQ2d
1221, 1223 (TTAB 1995) (amplification of applicant’s denial of opposer’s claims
permitted); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP)
§ 311.02(d) (2018).
The parties fully briefed the issues of likelihood of confusion and dilution, and
appeared for oral argument. We sustain the opposition based on likelihood of
confusion under Section 2(d).
I. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the application file at issue. The parties introduced the following
testimony and evidence:
A. Opposer’s Evidence
1. Testimony deposition of Melodie Bolin, marketing operations director and
former PEDIGREE brand manager for Opposer, with exhibits.5
2. Notice of reliance on:
a. TESS printouts of third-party registrations reciting goods and
services of the type identified in Opposer’s registrations and
Applicant’s involved application;6

b. Assignment of Kal Kan Foods, Inc.’s trademarks, including
PEDIGREE trademarks, to Opposer;7

5 49, 51 TTABVUE, 50 TTABVUE (confidential).
6 43 TTABVUE 2-3 & ex. 27.
7 43 TTABVUE 3-4 & ex. 28.
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c. Notices of Opposition filed by Opposer;8

d. Board decisions involving Opposer or its predecessor;9

e. Specimens of use, declarations of use, and Statements of use of
Opposer’s registered PEDIGREE marks.10

3. Notice of reliance on TESS printouts, reflecting the status of and title to
Opposer’s PEDIGREE registrations.11

4. Notice of reliance on:

a. Applicant’s answers and supplemental responses to
interrogatories;12

b. Excerpts from discovery deposition of Robert Rhodes, with exhibits.13

5. Notice of reliance on:

a. Periodicals, publications, and websites regarding use and promotion
of the PEDIGREE marks and products;14

b. Applicant’s websites;15

c. Dictionary website concerning pronunciation of “T” and “D”;16

d. Third-party websites that offer both pet treats and pet grooming
supplies for sale;17

8 43 TTABVUE 4 & ex. 29.
9 43 TTABVUE 4 & ex. 30.
10 43 TTABVUE 4-5 & ex. 31.
11 42 TTABVUE & ex. 26.
12 44 TTABVUE 2 & ex. 32.
13 44 TTABVUE 2 & ex. 33.
14 45 TTABVUE 2-6 & exs. 34-40, 43-44, 47-56.
15 45 TTABVUE 4 & exs. 41-42.
16 45 TTABVUE 5 & ex. 45.
17 45 TTABVUE 5 & 46.
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e. Advertising trade show printout.18

6. Notice of reliance on TESS printouts of third-party registrations that cover
goods and services of the type identified in Opposer’s pleaded registrations
and Applicant’s involved application.19

7. Notice of reliance on excerpts from discovery deposition of Robert Rhoades,
Applicant’s president.20

8. Notice of reliance on:

a. Third-party websites that offer pet treats and pet grooming supplies
or services;21

b. Third-party websites and dictionaries defining “feature” or
“featuring”;22

c. Applicant’s websites;23

d. News articles regarding Opposer’s promotion of PEDIGREE marks
and products.24

9. Cross-examination deposition of Applicant’s Sales Manager, Keili
Somerlot.25

B. Applicant’s Evidence

1. Testimonial declaration of Robert Rhoades, president of Applicant, with
exhibits.26

18 45 TTABVUE 5 & ex. 48.
19 76 TTABVUE 2-3 & ex. 58.
20 75 TTABVUE 2 & ex. 57.
21 77 TTABVUE 2-3 & ex. 59-60, 78 TTABVUE ex. 61-62, 65.
22 77 TTABVUE 3, 78 TTABVUE ex. 63.
23 77 TTABVUE 3-4, 78 TTABVUE ex. 64, 66.
24 77 TTABVUE 4, 78 TTABVUE ex. 67-68.
25 79 TTABVUE.
26 54, 56-57 TTABVUE, 55 TTABVUE (confidential).
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2. Testimonial declaration of Keili Somerlot, Sales Manager for Applicant.27

3. Notice of reliance on Opposer’s answers to interrogatories.28

4. Notice of reliance on:

a. Corporate information from Georgia Secretary of State;29

b. TESS printouts of third-party registrations for PET-AGREE.30

5. Notice of reliance on:

a. Applicant’s web pages;31

b. WHOIS registration information for www.PetAgree.net;32

c. Dictionary definitions;33

d. Third-party uses relating to PET-AGREE.34

C. Evidentiary Objections

Applicant interposes a number of objections to Opposer’s evidence.35
First, Applicant contends, Opposer’s marketing operations director and former
PEDIGREE brand manager, Melodie Bolin, began her employment with Opposer in
June 2013 and became the PEDIGREE brand manager in September 2015.
Consequently, Applicant maintains, Ms. Bolin lacks personal knowledge about

27 58 TTABVUE.
28 59 TTABVUE.
29 61 TTABVUE & ex. PAGS 2.
30 61 TTABVUE & ex. PAGS 39.
31 60 TTABVUE 2, 5-7, 11-56.
32 60 TTABVUE 2, 8-10.
33 60 TTABVUE 3, 58-74.
34 60 TTABVUE 3, 75-80.
35 83 TTABVUE.
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Opposer’s use, advertising or promotion of the PEDIGREE marks before her
September 2015 transition date, and her testimony about these events that took place
prior to that date should be disregarded. In particular, Applicant argues, Ms. Bolin
may not testify regarding the first use or continuing use of Opposer’s pleaded
registered marks. In the absence of such evidence, Applicant maintains that the
earliest date on which Opposer can rely is the filing date of the applications
underlying Opposer’s registrations, citing Levi Strauss & Co. v. R. Josephs
Sportswear Inc., 28 USPQ2d 1464, 1467 (TTAB 1993).36
As Opposer correctly notes, however, testimony by a person that her job
responsibilities require her to be familiar with the activities of the company that
occurred prior to her employment may be sufficient to lay a foundation for her
subsequent testimony about such activities. See City Nat’l Bank v. OPGI Mgmt. GP
Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1673 (TTAB 2013), cited in Kemi
Organics, LLC v. Gupta, 126 USPQ2d 1601, 1609 (TTAB 2018). In this case, Ms. Bolin
was asked:
Q. What were your responsibilities as Pedigree brand manager?
A. I was responsible for managing the entire Pedigree business. That
includes anything from setting the brand strategy, the innovation
plans, product innovation, all of the advertising related to the brand,
all of the media placements of that advertising, all of the consumer
promotions, any offers. Basically everything consumer-facing and in
line with the support and sale of the brand.37
…
Q. Based on your background and experience, do you have knowledge

36 83 TTABVUE 3-4.
37 Bolin dep. 10:14-21, 49 TTABVUE 13.
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about how [Opposer] uses its Pedigree trademarks?
A. Yes.
Q. Do you have knowledge about the products that [Opposer] has offered
under the Pedigree trademarks?
A. Yes.
Q. Do you have knowledge regarding the advertising and promotions that
[Opposer] has used for the Pedigree products?
A. Yes.
Q. Do you have knowledge regarding the volume of sales [Opposer] has
had for Pedigree products in the U.S.?
A. Yes.
Q. Do you have knowledge regarding the steps [Opposer] has taken to
protect and enforce its Pedigree trademarks?
A. Yes.38
…
Q. How did you become familiar with the history of the Pedigree brand?
A. Through brand historical documents and day-to-day operation of the
brand.39
We find Ms. Bolin’s testimony sufficient to lay a foundation for her subsequent
testimony, all of which, taken together, clearly establishes that her job
responsibilities have required her to be familiar with the use, advertising, and
promotion of the PEDIGREE marks before and during her employment as Opposer’s
PEDIGREE brand manager, and afterward, as its marketing operations director. See
Kemi Organics v. Gupta, 126 USPQ2d at 1609.

38 Bolin dep. 11:13-12:8, 49 TTABVUE 14-15.
39 Bolin dep. 12:24-13:3, 49 TTABVUE 16-17.
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Applicant further objects that Opposer’s designation of Ms. Bolin as its corporate
representative in its reply brief constitutes improper rebuttal: “Opposer’s Notice of
Testimony Deposition did not identify Ms. Bolin as Opposer’s Rule 30(b)(6) witness
or state with particularity the matters for examination.40 As such, Ms. Bolin was not
a Rule 30(b)(6) witness and her testimony was required to have been based on
personal knowledge or admissible exhibits.”41 However, Rule 30(b)(6) is designed to
facilitate discovery depositions. See generally Fed. R. Civ. P. 30(b)(6), cited in TBMP
§ 404.06(b); Red Wing Co. v. J.M. Smucker Co., 59 USPQ2d 1861, 1864 (TTAB 2001)
(“When a corporation is named by a party seeking discovery as a deponent, the subject
matter of the deposition is to be described with reasonable particularity in the notice.
It is then incumbent upon the corporation to designate one or more persons to testify
on its behalf, and these persons must testify as to matters known or reasonably
available to the corporation.”). It has no relevance to the testimony of a party’s own
witness. Indeed, given that a party may submit testimony in the form of an affidavit
or a declaration, with no notice whatsoever, it would be incongruous to require the
party to note its own representative’s deposition via Rule 30(b)(6). See Trademark
Rule 2.123(a)(1), 37 C.F.R. § 2.123(a)(1); TBMP § 703.01(b). We find that Opposer
complied with the applicable rules in noting and taking the testimonial deposition of
Ms. Bolin,42 and Applicant’s objection is overruled. See TBMP § 703.01(e),
Applicant’s concern that Ms. Bolin could not testify about Opposer’s dates of first

40 Bolin Dep. 49 TTABVUE 98-100 & ex. 1.
41 87 TTABVUE 3.
42 49 TTABVUE 98-100.
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use of its marks is misplaced. Opposer made its pleaded PEDIGREE registrations of
record in its amended notice of opposition43 and in a notice of reliance.44 See
Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d). As a result, priority is not an issue as
to the registered PEDIGREE marks and the associated goods and services. King
Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA
1974).
Second, Applicant contends that Bolin deposition exhibits 3 through 25 are
inadmissible. Specifically, it contends that exhibits 3 and 4, TESS printouts of
Registration nos. 1679350 and 4268435 for PEDIGREE marks, could not be
introduced via Ms. Bolin’s testimony.45 It also objects to her testimony regarding a
PEDIGREE newsletter distributed by Opposer, an example of which is appended to
exhibit 3. As noted above, however, the registrations — which are official records of
the USPTO — are already of record, and Ms. Bolin, as former PEDIGREE brand
manager, could testify about them.46 She could also testify that during her time as a
brand manager, Opposer distributed a PEDIGREE newsletter like the one appended

43 46 TTABVUE 14, et seq.
44 42 TTABVUE & ex. 26.
45 83 TTABVUE 4-5.
46 Applicant contends that Ms. Bolin is not competent to testify, among other things, to
Opposer’s ownership of the 1679350 Registration, which originally issued to another
company. Nonetheless, the official record of the ’350 Registration, which Opposer submitted
in evidence, indicates that it is currently owned by Opposer. In itself, the registration is
“prima facie evidence of the validity of the registered mark and of . . . the owner’s ownership
of the mark.” Trademark Act § 7(b). While Ms. Bolin’s testimony was admissible, it was
unnecessary to establish the validity of the registration or Opposer’s ownership of it. Absent
a counterclaim or separate petition to cancel the registration, Applicant cannot question its
validity or Opposer’s ownership of it. Trademark Rule 2.106(3)(ii).
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to the registration in exhibit 3.47
Applicant contends that Bolin deposition exhibits 4-13 and 18-19 contain hearsay,
and may only be admitted for what the documents show on their face, not to prove
the truth of what has been printed on them.48 Applicant does not elaborate on this
contention. As Opposer correctly notes, “Applicant fails to articulate how or why each
exhibit identified is hearsay, and leaves the Board to guess what specifically within
these exhibits is hearsay, and why.”49
As noted above, exhibit 4 is a TESS printout of Registration no. 4268435 for the
standard character mark PEDIGREE for use on cups and bowls. The registration is
properly of record, and Ms. Bolin was competent to testify that Opposer has
distributed cups and bowls bearing the PEDIGREE mark.50 Exhibit 5 contains
pictures of promotional items, such as a lunch box, a beach towel, a T-shirt, an
umbrella and a smart phone case, all bearing PEDIGREE brands. Ms. Bolin
authenticated the pictures and testified that all of the items were distributed in the
United States.51 Exhibit 6 is a TESS printout of Registration no. 4168866 for
PEDIGREE FOUNDATION. The registration is of record, and Ms. Bolin properly
testified about the services provided under the mark―promoting animal adoption,
responsible pet ownership, and the proper care and treatment of pets―and the

47 Bolin dep. 18:18-19:21, 49 TTABVUE 21-22.
48 83 TTABVUE 5-6.
49 85 TTABVUE 6.
50 Bolin dep. 20:22-25, 49 TTABVUE 23.
51 Bolin dep. 23:5-24:6, 49 TTABVUE 26-27.
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promotional items, such as leashes, dog collars, and dog bowls bearing the
PEDIGREE FOUNDATION mark, sold to promote its services.52 Exhibit 7 consists
of web pages from Zazzle.com showing promotional items offered under the
PEDIGREE FOUNDATION mark. The web pages display the URL and date of
downloading,53 and are admissible to show the use of the mark as displayed to the
public on the face of the web pages. In re Wal-Mart Stores, Inc., 129 USPQ2d 1148,
1156 n.38 (TTAB 2019) (“Internet evidence that includes the URL and the date the
material was accessed is generally admissible and may be considered for purposes of
evaluating a trademark.”); Harry Winston, Inc. v. Bruce Winston Corp., 111 USPQ2d
1419, 1428 (TTAB 2014) (“[S]uch materials are frequently competent to show, on their
face, matters of relevance to trademark claims (such as public perceptions),
regardless of whether the statements are true or false. Accordingly, they will not be
excluded outright, but considered for what they show on their face.”). And Ms. Bolin
could properly testify about the sale of the promotional items.54
Exhibit 8 is a printout of the PedigreeFoundation.org website.55 The exhibit
displays the website’s URL and date of downloading, and Ms. Bolin explains how
Opposer uses the website to promote the services of the PEDIGREE
FOUNDATION.56 None of that is hearsay. Exhibits 9-11 are printouts from the

52 Bolin dep. 25:4-27:17, 29:6-30:3, 49 TTABVUE 28-30, 32-33.
53 Zazzle.com/PedigreeFoundation/gifts dated May 30, 2017, 49 TTABVUE 119-30.
54 Bolin dep. 28:21-29:5, 49 TTABVUE 31-32.
55 PedigreeFoundation.org, 6/1/2017, 49 TTABVUE 131-33.
56 Bolin dep. 30:16-24, 49 TTABVUE 33.
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Pedigree.com website showing PEDIGREE branded dry and wet dog food and
treats.57 Ms. Bolin testified that Opposer sells the items depicted in the exhibits in
the United States, and further testified, based on her experience and job
responsibilities as brand manager, about the website traffic, all of which testimony is
admissible.58 Exhibit 12 is a printout from the websites Chewy.com and Target.com
depicting PEDIGREE treats and dog food, and their prices, according to Ms. Bolin.59
This documentary and testimonial evidence is admissible to show the goods sold
under Opposer’s PEDIGREE marks and their prices. Exhibit 13 is a printout of an
article from Pedigree.com about pet grooming entitled “All Things Dog – A Short
History of Poodle Grooming.”60 Ms. Bolin explained that Opposer offers information
about pet grooming on its website to promote responsible pet ownership.61 The
printout is admissible to show that Opposer offers this information under one of its
PEDIGREE marks. Harry Winston, Inc. v. Bruce Winston Corp., 111 USPQ2d at
1428.
Exhibit 18 contains printouts from Animal Planet and from the PEDIGREE
Facebook page relating to Opposer’s sponsorship of television programs―specifically,
the “Puppy Bowl,” presented annually on the day before the Super Bowl, and “The

57 Pedigree.com 5/30/2017, 49 TTABVUE 134-45.
58 Bolin dep. 32:7-20, 36:5-22, 37:11-24, 39:25-40:5, 49 TTABVUE 36, 39-40, 43-44.
59 Chewy.com 11/9/2015, Target.com 11/9/2015, Bolin dep. 40:15-42:3, 49 TTABVUE 43-45,
146-52.
60 Pedigree.com 9/2/2016, 49 TTABVUE 153-60.
61 Bolin dep. 42:8-13, 43:22-23, 44:6-12, 49 TTABVUE 45, 46, 47.
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View’s Annual Mutt Show.”62 Exhibit 19 depicts Opposer’s sponsorship of the
Westminster Kennel Club dog show, a NASCAR driver, and a National Hockey
League team.63 Ms. Bolin authenticated the exhibits and testified about the
sponsorships, which are relevant to establishing the commercial strength of the
PEDIGREE marks.64 These exhibits, and her testimony, are admissible. Applicant’s
objections to Bolin deposition exhibits 4-13, 18 and 19 are overruled.
Applicant next objects to Bolin deposition exhibits 14-16, which Ms. Bolin
identified as printouts from Ebiquity, a service provider Opposer uses to track
Opposer’s market advertising of its pet food brands.65 The exhibits show by date how
Opposer’s PEDIGREE brand is displayed on public media, such as television,
magazines, newspapers, and radio. For example:

62 49 TTABVUE 236-37.
63 49 TTABVUE 238-49.
64 Bolin dep. 69:18-75:22, 49 TTABVUE 72-78.
65 Bolin dep. 46:3-58:5, exs. 14-16, 49 TTABVUE 49-63, 161-235.
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66
Applicant objects that these exhibits constitute inadmissible hearsay to which no
exception applies. Applicant argues that they do not constitute business records
under Fed. R. Evid. 803(6), as they were not prepared by Opposer at or near the time
the advertisements ran, between 2012 and 2015, and were, in fact, prepared by
Ebiquity at Ms. Bolin’s request in November 2015.67 Opposer responds that the
exhibits were properly authenticated by Ms. Bolin, and fall within the business
records exception.68
The record indicates that the printouts in exhibits 14-16 are not records regularly
kept by Opposer, contemporaneously with its market advertising; they were instead
produced by Ebiquity years later at Ms. Bolin’s request, for use in this litigation.69
“[A] record created expressly for litigious rather than business purposes is not

66 49 TTABVUE 162.
67 83 TTABVUE 6.
68 85 TTABVUE 10-11.
69 Bolin dep. 46:7-9, 49 TTABVUE 49.
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admissible under the business records exception to the hearsay rule.” Pfizer Inc. v.
Cody John Cosmetics, Inc., 211 USPQ 64, 67 n.3 (TTAB 1981) (citing Fed. R. Evid.
803(6); Weinstein’s Evidence 803-40, 803-177)); see also Flowers Indus. Inc. v.
Interstate Brands Corp., 5 USPQ2d 1580, 1582 n.4 (TTAB 1987) (“Nor does it qualify
as a business record within the meaning of Rule 803(6) of the Federal Rules of
Evidence, because it was generated specifically for use in connection with this
proceeding.”). Hence, the printouts do not qualify as business records under Federal
Rule of Evidence 803(6).
Even so, while Opposer cannot rely on the business records hearsay exception
under Fed. R. Evid. 803(6), it can rely on Ms. Bolin’s testimony. Ms. Bolin
authenticated exhibits 14, 15, and 16, and testified that the contents of the documents
were accurate.70 See Fed. R. Evid. 901(a), (b)(1); TBMP §§ 702.02; 704.08(c). Ms.
Bolin’s testimony about the contents of these documents is admissible, and Applicant
has not demonstrated that the documents are other than what they appear to be, or
that this evidence lacks trustworthiness. Consequently, the printouts and testimony
together show how market advertisements of the PEDIGREE brand have been
circulated and shown to the public. See Rocket Trademarks Pty Ltd. v. Phard S.p.A.,
98 USPQ2d 1066, 1072 (TTAB 2011); Standard Knitting Ltd. v. Toyota Jidosha K.K.,
77 USPQ2d 1917, 1931 n.26 (TTAB 2006); Blue Man Prods. Inc. v. Tarmann, 75
USPQ2d 1811, 1813 (TTAB 2005); Hard Rock Café Int’l (USA) Inc. v. Elsea, 56
USPQ2d 1504, 1508 (TTAB 2000). Applicant’s objection is overruled to this extent.

70 Bolin dep. 51:8-10, 57:7-15, 49 TTABVUE 54, 60.
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Bolin deposition exhibit no. 22 is a year-by-year summary of Opposer’s sales,
advertising and promotional figures for the PEDIGREE brand in the United States,
from 2003 through 2016.71 Applicant objects that the summary is inadmissible
because it was not produced in discovery, contains hearsay to which no exception
applies, was improperly authenticated, and was not accompanied by the originals or
duplicates of the voluminous documents it summarized.72 We agree with Opposer,
however, that this exhibit is admissible as a summary of voluminous business
records. See Fed. R. Evid. 803(6), 1006 (business records and summaries). The
presentation of summary data “is quite proper and has been encouraged by our
reviewing court.” Yamaha Int’l Corp. v. Hoshino Gakki Co., 231 USPQ 926, 928
(TTAB 1986) (citing Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 n.4
(Fed. Cir. 1983) (summary properly introduced by testimony)), aff’d, 840 F.2d 1572,
6 USPQ2d 1001 (Fed. Cir. 1988). Ms. Bolin was well-positioned to know or have access
to information relevant to the substance of her testimony and the exhibit she
authenticated. See Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1013-14
(TTAB 2015). It was apparent from her testimony that she had knowledge of the
magnitude of Opposer’s sales, advertising and promotional figures. See W. End
Brewing Co. of Utica v. S. Australian Brewing Co., 2 USPQ2d 1306, 1308 n.3 (TTAB
1987). She was thus an appropriate witness to authenticate this exhibit. Ms. Bolin
identified the exhibit, described how Opposer tracks its sales, advertising and

71 Bolin dep. ex. 22, 50 TTABVUE 33 (confidential).
72 83 TTABVUE 7.
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promotional figures in the ordinary course of its business, and testified how the
exhibit accurately summarizes those figures.73 When Opposer introduced this exhibit
during Ms. Bolin’s testimony, Applicant’s counsel stated, “I’m not sure that
everything on the document was previously produced, so we would object to anything
on the document that was not previously produced.”74 In the deposition and in its
brief, Opposer maintains that it produced sales and advertising figures during
discovery.75 Moreover, there is no indication that Applicant sought to review the
documents underlying this summary. Exhibit 22 is therefore admitted, and
Applicant’s objection is overruled.
Ms. Bolin identified deposition exhibit 20 as a 2015 promotional and advertising
agreement, maintained in the regular course of Opposer’s business, licensing Minor
League Baseball to display PEDIGREE brands.76 And she identified exhibits 23, 24,
and 25, from Opposer’s records, as Opposer’s settlement agreements with third
parties, restricting their use and registration of the marks PETAGREE, PEDIGREE
PERFECTION, and PEDIGREEN.77 Applicant objects that these exhibits were not
produced during discovery, and that Ms. Bolin was not competent to authenticate
them. Opposer responds that Ms. Bolin properly authenticated these exhibits.78
Applicant does not identify any discovery request seeking identification or production

73 Bolin dep. 83:4-86:7, 50 TTABVUE 8-11 (confidential).
74 Bolin dep. 82:4-7, 50 TTABVUE 7 (confidential).
75 Bolin dep. 81:25-82:3, 50 TTABVUE 7-8, Opposer’s brief, 85 TTABVUE 12.
76 Bolin dep. 77:19-79:7, ex. 20, 50 TTABVUE 5-7, 15-32 (confidential).
77 Bolin dep. 89:4-exs. 23-25, 50 TTABVUE 12-22,34-48 (confidential).
78 Opposer’s rebuttal brief (confidential), 86 TTABVUE 3.
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of these documents, and for the same reasons as those elaborated upon above, Ms.
Bolin was competent to identify and provide testimony about them. These objections
are not well taken, and are overruled.
Opposer’s notice of reliance exhibit 31 consists of copies of Opposer’s Specimens of
Use, Declarations of Use, and Statements of Use for its registrations.79 Applicant
objects to consideration of the dates of use and specimens, arguing that they are not
evidence of first or continuing use.80 See Trademark Rule 2.122(b)(2). The specimens
in Opposer’s registration files “are not evidence on behalf of the . . . registrant unless
identified and introduced in evidence as exhibits during the period for the taking of
testimony.” Trademark Rule 2.122(b)(2). Because Opposer could not introduce the
specimens in its registration files by notice of reliance, we have disregarded them. As
we have noted, however, Opposer has made its pleaded registrations of record in its
amended notice of opposition81 and in a notice of reliance.82 See Trademark Rule
2.122(d), 37 C.F.R. § 2.122(d), making priority irrelevant as to the registered
PEDIGREE marks. King Candy v. Eunice King’s Kitchen, 182 USPQ at 110.
Opposer’s notice of reliance exhibits 34-56 consist of printed publications, such as
periodicals and website printouts, available to the general public.83 Applicant states
that these documents “would be admissible for what they show on their face,” but

79 43 TTABVUE 4-5, 119-79.
80 83 TTABVUE 9.
81 46 TTABVUE 14, et seq.
82 42 TTABVUE & ex. 26.
83 45 TTABVUE.
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objects that they “may not be relied upon for the truth of the matters asserted
therein.”84 Opposer responds that “Applicant makes a sweeping objection to Exhibits
34-56…, [but] Applicant’s objection misses the point―Opposer introduced Exhibits
34-56 for what they show on their face (as Applicant conceded is appropriate), not for
the truth of the matters asserted therein.”85 We find that all of these exhibits
constitute printed publications that may be admitted by notice of reliance.
Trademark Rule 2.122(e)(1),(2), 37 C.F.R. §§ 2.122(e)(1)-(2). Exhibit 45 is dictionary
evidence regarding the pronunciation of “d” and “t,” which is relevant to the phonetic
similarity or dissimilarity of the parties’ PEDIGREE and PET-AGREE marks.86
The remaining exhibits consist of Internet web pages and news publications. See
In re Wal-Mart Stores, 129 USPQ2d at 1156 n.38 (internet web pages); Safer, Inc. v.
OMS Invs., Inc., 94 USPQ2d 1031, 1039 (TTAB 2010) (same); Barclays Capital Inc.
v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1165 (TTAB 2017) (news publications).
Although these sources may only be considered for what they show on their face, TV
Azteca, S.A.B. De C.V. v. Martin, 128 USPQ2d 1786, 1790 (TTAB 2018), TBMP
§ 704.08, what they show on their face can be quite probative. Exhibits 40-44 consist
of printouts from Opposer’s and Applicant’s websites, including social media

84 83 TTABVUE 10.
85 85 TTABVUE 15.
86 Opposer’s notice of reliance, ex. 45, LearnersDictionary.com 11/2/2016 (in American
English, “d” and “t” are pronounced alike if they are “between vowels when the following
vowel is not stressed”). 45 TTABVUE 403-05. The Board may take judicial notice of dictionary
definitions, including online dictionaries that exist in printed format. In re Cordua Rests. LP,
110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir.
2016).
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websites, which show on their face the parties’ use of their marks in connection with
offering goods and services for sale to the public. Exhibits 46-48 are third-party
websites selling pet treats, pet grooming supplies, and PEDIGREE products, as well
as Opposer’s trade show participation. This evidence is relevant to the similarity or
dissimilarity of the parties’ goods and services, channels of trade, and classes of
customers, and that relevance is apparent on the face of the exhibits.
The remaining exhibits in this notice of reliance show media attention evidencing
public exposure and reputation of Opposer’s PEDIGREE marks, which is relevant to
the commercial strength of those marks. See Alcatraz Media, Inc. v. Chesapeake
Marine Tours Inc., 107 USPQ2d 1750, 1758-59 (TTAB 2013) (articles and Internet
printouts are competent evidence of exposure to the public). Cf. In re FabFitFun, Inc.,
127 USPQ2d 1670, 1674 (TTAB 2018) (“Internet printouts, such as those offered by
Applicant, ‘on their face, show that the public may have been exposed to those
internet websites and therefore may be aware of the advertisements contained
therein.’”).87 By the same token, Exhibit 68 consists of online articles concerning a
pledge that for each “Annie the Musical” ticket sold, Pedigree would donate two
dollars, up to one million dollars, to the PEDIGREE Foundation, a nonprofit
organization dedicated to helping shelter dogs find adoptive homes.88 The articles will

87 Opposer’s exhibit 64 purports to be evidence of third-party videos posted on Applicant’s
Facebook website where customers pronounce PET-AGREE the same as PEDIGREE. 77
TTABVUE 3, 78 TTABVUE 149-51. The record does not include legible printouts or video or
audio recordings of these postings, so this exhibit has not been considered. Applicant’s
hearsay objection is moot.
88 Notice of reliance ex. 68, 78 TTABVUE 177-99, FidoFriendly.com, PRNewswire.com,
Theatermania.com 7/3/2018.
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be considered for what they show on their face evidencing public exposure and
reputation of the PEDIGREE marks, including the PEDIGREE FOUNDATION
mark. Applicant’s hearsay objections are overruled.
Opposer objects to Applicant’s introduction of web pages from Applicant’s
Petagree.net website, retrieved via the Archive.org Wayback Machine.89 As Applicant
points out, though, its Sales Manager, Keili Somerlot, authenticated the web pages
as “true and correct copies of captures of [Applicant’s] website home page over the
period of February 16, 2003 to August 12, 2017.”90 Opposer argues that the website
printouts should nonetheless be accorded very little, if any, evidentiary weight.91 We
will consider this as evidence of the historic appearance of Applicant’s website. See
Paris Glove of Canada, Ltd. v. SBC/Sporto Corp., 84 USPQ2d 1856, 1858 (TTAB
2007). “Ultimately, the Board is capable of weighing the relevance and strength or
weakness of the objected-to testimony and evidence, including any inherent
limitations, and this precludes the need to strike the testimony and evidence.” Inter
IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1737 (TTAB 2014). Opposer’s
objection is overruled, and the evidence will be accorded its appropriate weight.
II. Standing and Priority

Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111

89 Opposer’s brief, 89 TTABVUE 13 n.1, objecting to Applicant’s notice of reliance, exs. 22-37,
60 TTABVUE 2, 5-7, 11-57.
90 Somerlot decl. ¶ 26, 58 TTABVUE 6-7, Applicant’s brief, 82 TTABVUE 7.
91 Opposer’s rebuttal brief, 84 TTABVUE 24-25.
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USPQ2d 1058, 1062 (Fed. Cir. 2014). A plaintiff must demonstrate that he possesses
a “real interest” in the proceeding and “a reasonable basis for his belief of damage.”
Id. (citing ShutEmDown Sports, Inc. v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012);
Ritchie v. Simpson, 170 F.3d 1902, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999)). A “real
interest” is a “direct and personal stake” in the outcome of the proceeding. Ritchie v.
Simpson, 50 USPQ2d at 1026. Opposer’s standing to oppose registration of
Applicant’s PET-AGREE mark based on likelihood of confusion and dilution is
established by its PEDIGREE registrations that are valid and subsisting. See, e.g.,
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000); N.Y. Yankees P’ship v. IET Prods. & Servs., Inc., 114 USPQ2d 1497, 1501
(TTAB 2015). Opposer has accordingly established its standing.
Applicant does not challenge Opposer’s standing. With respect to priority, it “does
not dispute that Mars can establish priority in this action for at least its oldest
PEDIGREE mark.”92 However, it is not necessary that this or any of the other
registrations on which Opposer relies predate applicant’s filing date or first use date.
Because Opposer’s pleaded registrations are of record, priority is not at issue with
respect to the goods and services covered by those registrations. Mini Melts, Inc. v.
Reckitt Benckiser LLC, 118 USPQ2d 1464, 1469 (TTAB 2016) (citing King Candy v.
Eunice King’s Kitchen, 182 USPQ at 110).
III. Likelihood of Confusion

We base our determination of likelihood of confusion under Trademark Act Section

92 Applicant’s brief, 82 TTABVUE 8 n.2.
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2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. __, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Guild
Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019). In the course
of applying the DuPont factors, we bear in mind the fundamental purposes
underlying Section 2(d), which are to prevent confusion as to sources and
relationships, and to protect mark owners from damage caused by registration of
confusingly similar marks. Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34
USPQ2d 1161, 1163 (1995); Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189,
224 USPQ 327, 331 (1985); DuPont, 177 USPQ at 566.
We have considered each DuPont factor that is relevant, and have treated any
other factors as neutral. See Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127
USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342,
94 USPQ2d 1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant
to every case, and only factors of significance to the particular mark need be
considered.”)); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242
(TTAB 2015) (“While we have considered each factor for which we have evidence, we
focus our analysis on those factors we find to be relevant.”). Opposer bears the burden
of proving its claim by a preponderance of the evidence. Cunningham, 55 USPQ2d at
1848. Varying weights may be assigned to each DuPont factor depending on the
evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26
Opposition No. 91221462

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USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more
or less weighty roles in any particular determination”). Two key considerations are
the similarities between the marks and the relatedness of the goods or 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 services] and
differences in the marks.”); In re FabFitFun, 127 USPQ2d at 1672.
A. Similarity of the Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Opposer’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). “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.” In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744,
1748 (Fed. Cir. 2017) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d
1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)).
Applicant argues that the parties’ marks differ in appearance, connotation, and
sound, all of which adds up to different commercial impressions. If the marks are
considered in their entireties, it argues, any consumer could easily recognize and
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understand that the terms PET-AGREE and PEDIGREE have very different
appearances. “PET-AGREE is formed of two different, distinct, commonly used and
easily recognized words separated by a hyphen. PEDIGREE is a single, distinct, and
commonly used … word.”93 In terms of connotation, it argues, “PEDIGREE implies a
high-quality, purebred, and highly desirable animal, and the like. To the contrary,
PET-AGREE is the combination of two distinct words, PET and AGREE. When used
in combination, they imply that the services offered under the mark are found
agreeable by pets.”94
In terms of sound, Applicant asserts:
[T]he terms ‘pedigree,’ ‘pet,’ and ‘agree’ are all common, recognized words
in English that have known pronunciations in the English language,”
Moreover, pronunciation of PET-AGREE results in emphasis on the term
“PET” with descending emphasis and descending lilt thereafter.
Pronunciation of the term “AGREE” has primary emphasis on the letter
“A” and less emphasis on the letters “GREE”. To the contrary,
pronunciation of the term “PEDIGREE” has ascending emphasis and lilt
ending on a lingering pronunciation of the “EE” portion of the term.
Because the known pronunciation of PET-AGREE would be different than
PEDIGREE, a normal United States purchaser would be able to
distinguish there words aurally.95
Moreover, Applicant contends, “[E]ven if the Board finds the marks phonetically
similar, that is insufficient, alone, to lead to a likelihood of confusion.”96 “Because

93 Applicant’s brief, 82 TTABVUE 16-17.
94 Id., 82 TTABVUE 17; “Pedigree”: “a distinguished ancestry … the recorded purity of an
individual or strain…. As in ‘What is the dog’s pedigree?’” Merriam-Webster.com 12/21/2016,
Applicant’s notice of reliance, 60 TTABVUE 60.
95 Id. 82 TTABVUE 18.
96 Id. 82 TTABVUE 19 (citing Standard Brands v. E. Shore Canning Co., 172 F.2d 144, 80
USPQ 318, 320-21 (4th Cir. 1949) (no confusion between V-8 for vegetable juice and VA for
tomato juice despite similar pronunciation).
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PET-AGREE and PEDIGREE have different appearances, different connotations,
and distinguishable sounds, the marks have very different overall commercial
impressions,” Applicant concludes.97
We agree with Opposer, though, that the parties’ marks are more similar than
dissimilar. Contrary to Applicant’s argument, “[s]imilarity in any one of the
elements[, sight, sound, meaning, or commercial impression,] may be sufficient to
find the marks confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB
2014); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523,
526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound
alone is likely to cause confusion.”), cited in In re Inn at St. John’s, LLC, 126 USPQ2d
1742, 1746 (TTAB 2018). As the Board has stated, “In a particular case, “two marks
may be found to be confusingly similar if there are sufficient similarities in terms of
sound or visual appearance or connotation.” Kabushiki Kaisha Hattori Seiko v.
Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB 1991), aff’d mem., 979 F.2d 216
(Fed. Cir. 1992).
Opposer’s marks consist of or contain the dominant component PEDIGREE. As
Opposer correctly observes, PEDIGREE and PET-AGREE are similar in sight and
sound. In terms of appearance, both have the same number of letters, the same
number of syllables, and the same structure, beginning with “PE” and ending with
“GREE.” In terms of sound, they are practically phonetic equivalents. Both are three
syllables, with the same cadence. Although Applicant asserts that they would be

97 Id. 82 TTABVUE 19.
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pronounced differently, Opposer adduces dictionary evidence that the difference
between the pronunciation of “T” and “D” in the marks would be slight.98 See Pfizer
Inc. v. Cody John Cosmetics, Inc., 211 USPQ 64, 68-69 (TTAB 1981) (citing the Guide
to Pronunciation in WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY: “The
phonetic similarity of ‘COTY’ and ‘CODY’ is marked. … [M]any Americans are apt to
use the voiced flap consonant for both ‘COTY’ and ‘CODY’, in which case the names
are identical in sound”). The hyphen, in Applicant’s mark, would not be pronounced,
and would not distinguish its sound from that of Opposer’s mark. See Mini Melts, 118
USPQ2d at 1470 (“the hyphen in Applicant’s mark MINI-MELTS does not
distinguish it from Opposer’s mark [MINI MELTS]”). Hence, the difference in sound
is so slight that consumers who hear the marks spoken by others are not likely to
even notice the difference. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1912
(Fed. Cir. 2012) (“any minor differences in the sound of these marks may go
undetected by consumers and, therefore, would not be sufficient to distinguish the
marks.”).
This marked similarity in structure and sound supports a finding of similarity.
See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018)
(quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ2d 749, 752 (Fed. Cir. 1985)
(finding marks similar because they “are, in large part, identical in sound and
appearance and have a general similarity in cadence.”)); Krim-Ko v. Coca-Cola, 156

98 LearnersDictionary.com 11/2/2016 (in American English, “d” and “t” are pronounced alike
if they are “between vowels when the following vowel is not stressed”) Opposer’s notice of
reliance, ex. 45, 45 TTABVUE 403-05, cited in Opposer’s brief, 80 TTABVUE 21-22.
Opposition No. 91221462

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USPQ at 526 (“Despite specific differences in spelling ... the dominant factor for
consideration is the likelihood of confusion arising from the similarity in sound of the
two words [VEEP and BEEP] when spoken.”). Even though some of Opposer’s
registered marks have design elements, “the words are normally accorded greater
weight because they are likely to make a greater impression upon purchasers, to be
remembered by them, and to be used by them to request the goods. See In re Viterra,
101 USPQ2d at 1908 (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200
(Fed. Cir 1983)). The literal portion of a word and design mark “likely will appear
alone when used in text and will be spoken when requested by consumers.” In re
Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018). This is especially
true in this case, where the application and registrations are for goods or services
that may be promoted, referred to or recommended by word of mouth. See In re 1st
USA Realty Prof’ls., Inc., 84 USPQ2d 1581, 1586 (TTAB 2007). Applicant makes an
average of 375-750 telephone sales “cold calls” per month (4,500-9,000 cold calls per
year), in which prospective customers would hear the mark but not see it.99
Approximately fifty to sixty percent of Applicant’s sales are made through its call
center.100 It does not provide its employees any instruction on how to pronounce “PET-
AGREE.”101
Turning to consideration of the connotation and commercial impression of the
marks, we note that the average consumer retains a general rather than specific

99 Somerlot dep. at 31:24-32:8, 80:18-81:8, 94:2-16, 79 TTABVUE 35-36, 83-84, 97.
100 Somerlot dep. at 79:17-21, 79 TTABVUE 82.
101 Rhoades dep. at 73:5-7, 81:11-20, 44 TTABVUE 20, 27.
Opposition No. 91221462

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impression of marks. In re FabFitFun, 127 USPQ2d at 1675. Since the similar-
sounding PET-AGREE could easily be perceived as a play on the word PEDIGREE,
those consumers “who do notice the difference in the marks will not necessarily
conclude that there are different sources for the goods [or services], but will see the
marks as variations of each other, pointing to a single source.” In re Hitachi High-
Technologies Corp., 109 USPQ2d 1769, 1774 (TTAB 2014).102 The fact that Opposer
owns a number of variant PEDIGREE-formative marks enhances this consumer
perception.
In sum, we find the marks similar in sight, sound, connotation, and commercial
impression.
The first DuPont factor thus weighs in favor of finding a likelihood of confusion.

B. Relatedness of the Goods and Services, Their Channels of Trade,
and Their Classes of Customers
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration,” Stone Lion
Capital v. Lion Capital, 110 USPQ2d at 1159, and the third DuPont factor concerns
“[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” Id.
at 1161 (quoting DuPont, 177 USPQ at 567). Opposer’s most pertinent identified

102 At oral argument, Applicant’s counsel denied that PET-AGREE was intended as
a play on the word PEDIGREE. “However, we must look to the likely consumer
perception of the mark in connection with the identified goods, rather than applicant’s
intended connotation.” UMG Recordings, Inc. v. Mattel, Inc., 100 USPQ2d 1868, 1886
(TTAB 2011). In doing so, we do not mean to imply that Applicant adopted its mark
in bad faith.
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goods and services are, essentially, pet food, cups and bowls used to promote the sale
of pet food, and promotion of public awareness about responsible pet ownership and
the proper care and treatment of pets. Applicant’s identified services, once again, are
“wholesale and retail supply store services featuring pet grooming supplies; online
wholesale and retail services featuring pet grooming supplies.”
Applicant argues that it “is not registering its PET-AGREE mark for goods, let
alone for pet food—but instead for the above services.”103 Its marketing of “supply
store services featuring pet grooming supplies is directed to the pet professional and
not to the pet owner,” it argues. Even though the parties’ respective goods and
services are both “pet-related,” it contends, a finding of similarity cannot be “based
on whether a general term or overarching relationship can be found to encompass
them both.”104 “There is a distinction between a store offering pet supplies and
[Applicant’s] ‘supply store services featuring pet grooming supplies.’ … They are not
the same type of store, nor are they directed to the same market or customer.”
Applicant argues that its “customers look to [Applicant] to provide pet grooming
supplies to meet their professional needs. [Applicant’s] customers do not look to
[Applicant] to buy pet food.”105 Opposer “has not shown that pet food is the type of
product that would normally be offered by a supply store providing services
featuring pet grooming supplies,” Applicant concludes.106 “Moreover, professional

103 Applicant’s brief, 82 TTABVUE 20.
104 Id., 82 TTABVUE 19 (quoting Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d
1399, 1410 (TTAB 2010)).
105 Id., 82 TTABVUE 23 (citing Somerlot decl. ¶¶ 6-8, 12-16, 58 TTABVUE 3-5).
106 Id. 82 TTABVUE 20.
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pet groomers do not confuse the pet grooming supplies they buy from us with dog
food, let alone pet food.”107
The issue, though, is not whether purchasers would confuse the parties’ goods or
services, but rather whether there is a likelihood of confusion as to the source of
those goods or services. In re Cook Med. Techs. LLC, 105 USPQ2d 1377, 1380 (TTAB
2012). In other words, the issue is “whether ‘the consuming public may perceive [the
respective goods and services of the parties] as related enough to cause confusion
about the source or origin of the goods and services.’” In re St. Helena Hosp., 774
F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)), quoted
in In re FabFitFun, 127 USPQ2d at 1672. To support a finding of likelihood of
confusion, it is not necessary that the parties’ goods and services be identical or even
competitive. It is sufficient that they are related in some manner, or that the
circumstances surrounding their marketing are such that they would be encountered
by the same persons in situations that would give rise, because of the marks, to a
mistaken belief that they originate from the same source or that there is an
association or connection between their sources. See Hewlett-Packard v. Packard
Press, 62 USPQ2d at 1004; In re I-Coat Co., LLC, 126 USPQ2d 1730, 1737 (TTAB
2018). Evidence of relatedness may include news articles or other evidence showing
that the relevant goods and services are used together; advertisements showing that
they are advertised together or sold by the same source, or copies of prior use-based

107 Somerlot decl. ¶ 23, 58 TTABVUE 6.
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registrations of the same mark for both Applicant’s services and the goods and
services listed in Opposer’s registrations. See, e.g., L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1140 (TTAB 2012); In re Davia, 110 USPQ2d at 1817.
In this case, we find that the parties’ identified goods and services are sufficiently
related to contribute to source confusion. To demonstrate the relatedness of the
parties’ goods and services, Opposer adduces evidence of three dozen use-based third-
party registrations that cover pet grooming supplies and pet food under a single
mark.108 For example:
Registration
No.
Mark Pertinent Goods and Services
3846635 ISLE OF DOGS Deodorizers and fragrances for pets; non-medicated grooming
preparation for pets, namely, hair care and skin care
preparations, and styling preparations for pets.
Pet food.
On-line retail store services and wholesale distributorship
services in the field of pet care, grooming, beauty, health and
wellness.
4029186 CANIS CALLIDUS Pet food; pet treats
Retail store and on-line retail store services featuring pet
supplies, namely … grooming products
2611979 HALO PURELY FOR
PETS
Pet food, namely, dog food, cat food, edible dog treats, edible
cat treats
Retail store, mail order catalog and internet retail services
featuring pet foods, nutritional supplements for pets, pet
treats, grooming aids for pets
4326698 WOOF GANG Dog treats; pet treats, retail shops featuring pet treats, pet
food, and pet supplies
Dog grooming services; pet grooming services; providing self-
service pet washing facilities
4512657 PET SHED Retail pet supply store services; online retail store services
featuring …pet treats, pet foods…, pet grooming aids.
4327683 HOWLISTIC Retail store services featuring pet supplies, pet food, pet toys,
and pet grooming products

108 43 TTABVUE 8-55; 76 TTABVUE 6-30; Opposer’s brief, 80 TTABVUE 26.
Opposition No. 91221462

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Registration
No.
Mark Pertinent Goods and Services
4233122 HOLISTIC HOUND Retail store services featuring pet food, … pet treats and …
pet grooming tools
3873776 FETCHDOG Pet feeding bowls; pet grooming and cleaning products,
namely, brushes and combs
Pet food
4664024 PET CARESS Pet care kits comprising shampoo, conditioner, body spray;
pet fragrances; pet odor removers; pet shampoo and
conditioner; non-medicated grooming preparations for cats
and dogs
Pet food
4023538 BOOTS & BARKLEY Medicated grooming preparations for pets, namely, shampoos
Pet brushes; pet feeding dishes
Pet food; consumable pet chews…edible pet treats
2711145 SHAKE A PAW
And Design
Retail pet store services featuring puppies, dog food, toys and
treats, grooming supplies
3142473 COSMOPAWLITAN
And Design
Retail pet products store; on-line services featuring but not
limited to pet grooming products, and all-natural pet foods
and gourmet treats.
4660998 DIAMOND COLLAR
And Design
Retail store services featuring pet supplies, pet food, pet
accessories and grooming supplies
4401326 PAWNEWS On-line retail store services featuring pet food, pet supplies,
accessories, specialty products, namely, good, treats,
grooming aids

“As a general proposition, although use-based, third-party registrations alone are
not evidence that the marks shown therein are in use or that the public is familiar
with them, they nonetheless may have some probative value to the extent they may
serve to suggest that the goods are of a kind that emanate from a single source.” In
re I-Coat Co., 126 USPQ2d at 1738; see also Joel Gott Wines, LLC v. Rehoboth Von
Gott, Inc., 107 USPQ2d 1424, 1432 (TTAB 2013); In re Davey Prods. Pty Ltd., 92
USPQ2d 1198, 1203 (TTAB 2009) (citing In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785-86 (TTAB 1993) and In re Mucky Duck Mustard Co., 6 USPQ2d 1467,
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1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir.) (mem.)); In re Aquamar, Inc.,
115 USPQ2d 1122, 1126 n.5 (TTAB 2015); TRADEMARK MANUAL OF EXAMINING
PROCEDURE (TMEP) §1207.01(d)(iii). These third-party registrations thus tend to
show the relatedness of the parties’ goods and services.
To underscore the relatedness of the parties’ goods and services, Opposer adduces
Internet web pages purporting to show 18 third parties marketing and selling
grooming supplies and pet food online under the same marks.109 Applicant counters
that this third-party evidence is not probative of relatedness, as it encompasses large
stores such as Walmart, Target, and CVS, as well as large pet supply stores such as
Petco and PetSmart―all of which are unlike Applicant, a specialty supply store
featuring pet grooming supplies. Applicant contends that “a supply store featuring
pet grooming supplies is a specific type of store, distinct from a Petco, Walmart, or
Petsmart.”110 The emphasis on the word featuring does not preclude Applicant from
selling pet supplies other than pet grooming supplies. As Applicant’s sales manager,
Keili Somerlot, stated in her deposition:
Q. But the word “featuring” does not mean “only,” correct?
A. No.
Q. That’s correct, right?
A. Correct.111

109 45, 77, 78 TTABVUE; Opposer’s brief, 80 TTABVUE 26; Opposer’s reply brief, 84
TTABVUE 18.
110 Applicant’s brief, 82 TTABVUE 21.
111 Somerlot dep. 42:12-43:5, 79 TTABVUE 45-46.
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Nonetheless, “[s]uch stores are specialty stores that prominently feature pet
grooming supplies,” Applicant maintains, “[Applicant’s] services are not in the same
market as big box stores, such as Petco, Target and grocery stores.”112
Applicant’s point is well taken, as “[i]t has long been held that the mere fact that
two different items can be found in a supermarket, department store, drugstore or
mass merchandiser store is not a sufficient basis for a finding that the goods are
related.” Morgan Creek Prods. Inc. v. Foria Int’l Inc., 91 USPQ2d 1134, 1142 (TTAB
2009) (collecting cases). Opposer’s marketing operations director testified, however,
that its PEDIGREE–branded goods were carried not only at superstores such as
Walmart and Target, or club stores such as Costco, but also at “basically every grocery
store in the U.S.[,] Pet specialty stores, PetSmart, Petco, and independent pet stores
as well,” all of which sell pet grooming supplies.113 Moreover, Opposer followed up by
asking Ms. Somerlot at her deposition to identify Applicant’s competitors:
Q. Who would you say [are Applicant’s] main competitors?
A. Groomer’s Choice, Ryan’s, Frank Rowe & Sons, Groomer’s Mall, PetEdge.114
Opposer then demonstrated that some of those competitors, as well as other
similarly situated small concerns, offered both grooming supplies and pet treats. For
example:
• Groomer’s Choice115

112 Applicant’s brief, 82 TTABVUE 22-23.
113 Bolin dep. 35:4-24, 49 TTABVUE 38.
114 Somerlot dep. 43:18-21, 79 TTABVUE 46; see also Somerlot decl. ¶ 18, 58 TTABVUE 5.
115 GroomersChoice.com 6/18/2018, 77 TTABVUE 63-66, 232-35.
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• Ryan’s Pet Supplies116

116 RyansPet.com 6/18/2018, 77 TTABVUE 132-63.
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• Halo Pets117

• Muttropolis118

Evidence that “a single company sells the goods and services of both parties, if
presented, is relevant to the relatedness analysis.” Hewlett-Packard v. Packard Press,
62 USPQ2d at 1004, cited in In re Integrated Embedded, 120 USPQ2d 1504, 1514-15
(TTAB 2016). Opposer’s evidence tends to show these third parties marketing pet
treats, rather than pet food, in conjunction with grooming supplies. Nonetheless,
these treats are related to Opposer’s pet food goods, inasmuch as both kinds of goods

117 HaloPets.com 6/20/2018, 78 TTABVUE 4-11.
118 Muttropolis.com 6/20/2018 78 TTABVUE 36-65.
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are edible, commonly offered by one source under one mark, purchased together, and
fed to pets.
Like its competitors, Applicant sells, in addition to grooming supplies, bowls and
cups used to serve dogs food and water.119 These goods are identical to the bowls and
cups used to serve pet food that are identified in Opposer’s Registration No.
4268435,120 and they are complementary to the pet food and dog food identified in
over a dozen of Opposer’s registrations. See In re Cook Med. Techs., 105 USPQ2d at
1380 (“If goods are complementary in nature, or used together, this relatedness can
support a finding of likelihood of confusion.” (citing In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984)). Applicant also
offered edible treats for sale, such as pork hide treats, pig ears, rawhide bones, salmon
filets, beer and liver treats, and peanut flavored stuffed bones under other
manufacturers’ brands.121 Although it subsequently stopped selling most of these
treats, and now claims it has no intention of resuming those sales, it still sells “bully
sticks” and deer antlers, which are chewable treats for dogs.122

119 Rhoades dep. 82:3-83:6, exs. 9-10, 44 TTABVUE 28-29, 45 TTABVUE 236-44, 253-59.
120 See Bolin dep. 20:11-25, 22:8-24, 49 TTABVUE 23, 25.
121 Somerlot dep. 48:13-49:22, 79 TTABVUE 51-52; Rhoades decl. ex. 4, Applicant’s Spring
2015 catalog, 54 TTABVUE 89.
122 Rhoades dep. 75:2-76:4, 44 TTABVUE 22-24, dep. ex. 7, 44 TTABVUE 65-69, 147.
Opposer’s marketing operations director testified that Applicant’s dog treats, including bully
sticks and deer antlers, were in the same product category as Opposer’s DENTASTIX
product. Bolin dep. 38:10-39:15, 49 TTABVUE 41-42. Opposer’s registration for the mark
DENTASTIX is not one of the registrations pleaded in its amended notice of opposition, nor
does it contain the word PEDIGREE. Thus this testimony is relevant only insofar as it
furnishes further evidence that dog treats and dog food are related, as they may emanate
from the same source.
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The fact that Applicant has sold the same or similar goods as Opposer under its
PET-AGREE service mark, even if the goods bear different trademarks, is relevant
for purposes of establishing the relationship between the goods and services of the
parties because it shows the provision of Applicant’s services and the sale of goods
identified by Opposer by a common source — Applicant itself. See TBC Corp. v. Grand
Prix Ltd., 16 USPQ2d 1399, 1400 (TTAB 1990) (“where the goods of the parties differ,
information from which it may be learned whether the parties market some goods of
the same type is relevant to establishing the relationship between the goods of the
parties.”) (citing Sterling Drug Inc. v. Sebring, 515 F.2d 1128, 185 USPQ 649, 652
(CCPA 1975)).
Even if Applicant’s services feature pet grooming supplies, its advertisements, as
well as those of its competitors, indicate that stores of that sort commonly sell
ancillary goods, such as bowls, cups, and treats for pets. And the third-party evidence
cited above indicates that such goods and services commonly emanate from the same
source under the same mark, so that consumers would regard them as related. Hence,
Applicant’s “[w]holesale and retail supply store services featuring pet grooming
supplies” would be perceived as related to Opposer’s identified goods. See, e.g., Wet
Seal, Inc. v. FD Mgmt., Inc., 82 USPQ2d 1629, 1639-40 (TTAB 2007) (“It is settled
that the likelihood of confusion may result from the use by different parties of the
same or similar marks in connection with goods, on the one hand, and services which
deal with or are related to those goods, on the other.”).
Similarly, even though Applicant claims that its services are directed to pet
grooming professionals, “[a]n application with ‘no restriction on trade channels’
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cannot be ‘narrowed by testimony that the applicant’s use is, in fact, restricted to a
particular class of purchasers.’” Stone Lion Capital v. Lion Capital, 110 USPQ2d at
1162 (quoting Octocom v. Houston Comp. Servs., 16 USPQ2d at 1788). Because
Applicant’s services are not limited to sales to “professionals, the goods are presumed
to travel in all normal channels and to all prospective purchasers for the relevant
goods.” Coach Servs. v. Triumph Learning, 101 USPQ2d at 1722; see Centraz Indus.
v. Spartan Chem., 77 USPQ2d at 1700 (“We also note, however, that the
identifications of goods are not limited to commercial and institutional customers.”).
As Applicant’s witness confirmed, reviewing the wording of its identification:
Q.· · The words “pet professionals” do not appear in this application, correct?
A.· · Correct.
Q.· · And the words “professional pet groomers” don’t appear in this
application, correct?
A.· · Correct.
Q.· · And the words “veterinarian,” “kennels” and “boarders” don’t appear in
this application, correct?
A.· · Correct.123
Applicant’s president, Robert Rhoades, testified that its products are purchased
primarily but not exclusively by professionals:
Indeed, throughout his testimony, Mr. Rhoades consistently emphasized that
Applicant does not identify whether it is selling to professionals or consumers:
A. …I have no way of identifying whether they are a consumer or a
professional groomer. We don’t ask.124

123 Somerlot dep. 35:9-18, 79 TTABVUE 38.
124 Rhoades dep. 74:19-21, 44 TTABVUE 21.
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A. Well again, if someone calls in and orders, we don’t know if it’s a business
or if it’s an individual.125
Q. And you don’t take any steps to prevent someone from the general public
from buying your products, correct?
A. We don’t, but ― we don’t encourage it because we want ongoing sales.126
A. [W]e don’t ask for identification. We just take the order, process it, and
then move on.127
. . .
Q. Could a member of the general public purchase a bowl via your catalog as
well?
A. They could have.
Q. Have you made any sales of bowls to members of the general public?
A. We don’t identify who we are selling to.128
Thus, despite Applicant’s argument that its retail services are intended for
professionals, neither its identification nor its actual services is so limited. In sum,
Applicant’s services are related to Opposer’s goods, and pass through the same or
similar normal channels of trade to overlapping classes of customers, including pet
owners. For these reasons, the second and third DuPont factors weigh in favor of
finding a likelihood of confusion.
C. Care and Sophistication of Purchasers

Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”

125 Rhoades dep. 106:6-8, 44 TTABVUE 45.
126 Rhoades dep. 106:19-20, 44 TTABVUE 45.
127 Rhoades dep. 107:2-4, 44 TTABVUE 46.
128 Rhoades dep. 82:16-21, 44 TTABVUE 28.
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DuPont, 177 USPQ at 567. Applicant, relying on much the same arguments as above,
argues that its services are rendered to pet grooming professionals―sophisticated
purchasers who can “readily distinguish the ‘pet grooming supplies’ they are selling
from pet food and would not confuse the two.”129 “Additionally,” it maintains, “since
most of [Applicant’s] sales are through a catalogue or online, there is no ability to
impulse purchase a low value item”130
Regardless of their level of sophistication, whether Applicant’s customers can tell
the difference between pet grooming supplies and pet food is irrelevant. “The issue,
of course, is not whether purchasers would confuse the goods or services, but rather
whether there is a likelihood of confusion as to the[ir] source. . . .” Giersch v. Scripps
Networks, Inc., 90 USPQ2d 1020, 1026 (TTAB 2009). There is no support for a rule
that likelihood of confusion can only be found when the involved goods or services are
indistinguishable. In any event, as Applicant’s president admits, the general public
can purchase items from its inventory; Applicant takes no steps to discourage
members of the general public from buying its products, and has no way of knowing
whether purchasers are professionals or consumers.131 And while some of its items
are expensive, such as modular cages in sets ranging from $885.00 to $2,536.00,
others are inexpensive, such as stainless steel bowls ranging from 99 cents to $3.49

129 Applicant’s brief, 82 TTABVUE 27.
130 Id.
131 Rhoades dep., 44 TTABVUE 21, 28, 45-46.
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apiece,132 or bully sticks for $2.29 to $4.50 per pack.133 Applicant’s website also lists
items such as combs, bandannas, nail polish, ribbons, and cologne, all for under ten
dollars.134
The standard of care for purchasing the goods is that of the least sophisticated
potential purchaser. Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1163, cited
in In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (“Board precedent
requires our decision to be based on the least sophisticated potential purchasers.”).
And “[w]hen products are relatively low-priced and subject to impulse buying, the
risk of likelihood of confusion is increased because purchasers of such products are
held to a lesser standard of purchasing care.” In re FabFitFun, 127 USPQ2d at 1673
(citing Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir.
2000)).
Consequently, there is no reason to find that purchasers would be particularly
sophisticated, or exercise more than an ordinary degree of care in their purchases.
This factor is therefore neutral.
D. Strength of Opposer’s Marks

The fifth DuPont factor is “[t]he fame of the prior mark (sales, advertising, length
of use).” DuPont, 177 USPQ at 567. The fame of a mark is not “an all-or-nothing
measure” when considered in the context of likelihood of confusion. Joseph Phelps

132 Somerlot dep. ex. 20, 57 TTABVUE 80.
133 Rhoades dep. ex. 7, 45 TTABVUE 228, 231.
134 Rhoades dep. 133:10-135:22, 44 TTABVUE 47-49, 45 TTABVUE 228-32, 260-61, 267-70,
335-36, 339-40; 78 TTABVUE 163.
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Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734
(Fed. Cir. 2017). Rather, likelihood of confusion fame “varies along a spectrum from
very strong to very weak.” Palm Bay Imps., 73 USPQ2d at 1694 (quoting In re Coors
Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003)).
In determining strength of a mark, we consider both inherent strength, based on
the nature of the mark itself, and commercial strength, based on marketplace
recognition. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686
(Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength
(distinctiveness) and its marketplace strength….”); Bell’s Brewery, Inc. v. Innovation
Brewing, 125 USPQ2d 1340, 1345 (TTAB 2017); Top Tobacco, L.P. v. N. Atl.
Operating Co., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (the strength of a mark is
determined by assessing its inherent strength and its commercial strength, “based on
the marketplace recognition value of the mark”); Tea Bd. of India v. Republic of Tea
Inc., 80 USPQ2d 1881, 1899 (TTAB 2006) (market strength is the extent to which the
relevant public recognizes a mark as denoting a single source); MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 11:83 (5th ed. June 2019 update) (“The first
enquiry focuses on the inherent potential of the term at the time of its first use. The
second evaluates the actual customer recognition value of the mark at the time
registration is sought or at the time the mark is asserted in litigation to prevent
another’s use.”). To determine the conceptual strength of the PEDIGREE marks, we
evaluate the word’s intrinsic nature, that is, where it lies along the generic-
descriptive-suggestive-arbitrary-fanciful continuum of words. In re Davia, 110
USPQ2d at 1814.
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Applicant argues that Opposer’s PEDIGREE marks are conceptually weak, as
“pedigree” is a laudatory term, alluding to one’s distinguished ancestry, as in “What
is the dog’s pedigree?” or “a purebred animal.”135 Laudatory terms, it argues, are
generally deemed to be merely descriptive, or, if registered, entitled to only a narrow
scope of protection.136 However, inasmuch as Opposer’s PEDIGREE marks are
registered on the Principal Register without disclaimers or claims of acquired
distinctiveness under Section 2(f), they are entitled to a presumption that they are
inherently distinctive, not merely descriptive. 15 U.S.C. § 1057(b); Tea Bd. of India
v. Republic of Tea, 80 USPQ2d at 1889. As Opposer correctly observes, “pedigree”
may be laudatory of certain dogs with distinguished ancestries, but it is not laudatory
of dog food.137 The term is arbitrary or―to the extent that it implies that Opposer’s
pet food may be appropriate for dogs of a distinguished pedigree―at most slightly
suggestive. See In re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 (TTAB 2007)
(“inasmuch as the cited mark is registered on the Principal Register, we must assume
that it is at least suggestive and we cannot entertain applicant’s argument that the
registered mark is descriptive of registrant’s services.”). “[T]he fact that mark may be
somewhat suggestive does not mean that it is a ‘weak’ mark entitled to a limited scope
of protection.” In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985).
Thus, conceptually, Opposer’s PEDIGREE marks are inherently distinctive.

135 Applicant’s brief, 82 TTABVUE 9-10, citing the OXFORD ENGLISH DICTIONARY,
www.dictionary.com, 60 TTABVUE 64-74.
136 Id. (citing In re The Place, Inc., 76 USPQ2d 1467 (TTAB 2005) (finding the term
GREATEST to be laudatory because it denotes a superior character or quality)).
137 Opposer’s reply brief, 84 TTABVUE 9.
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Commercially, Opposer maintains, its PEDIGREE marks are “famous, extremely
strong, and are entitled to a broad scope of protection.”138 The commercial strength of
a mark may be measured indirectly by the volume of sales of and advertising
expenditures for the goods identified by the marks, the length of time those indicia of
commercial awareness have been evident, widespread critical assessments, notice by
independent sources of the goods, and the general reputation of the goods. In re Mr.
Recipe, 118 USPQ2d 1084, 1086 (TTAB 2016) (citing Bose Corp. v. QSC Audio Prods.
Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305-06, 1309 (Fed. Cir. 2002)).
To provide this proof, Opposer relies upon the deposition of its marketing
operations director, Melodie Bolin, the former PEDIGREE brand manager,139 who
testifies that:
• Opposer’s predecessor in interest, Kal Kan Foods, Inc., launched its
PEDIGREE brand in the United States in the early 1980s;140
• The PEDIGREE brand sells through all types of stores: superstores such as
Walmart and Kmart, club stores such as Costco, all major grocery stores in the
U.S., such as Safeway, Kroger, and Winn-Dixie, pet specialty stores such as
PetSmart, independent pet stores, and farm and feed stores;141
• Sales of PEDIGREE branded products in the United States from 2011 to 2016
total over one billion dollars’ worth per year;142

138 Opposer’s brief, 80 TTABVUE 32.
139 Bolin dep. 9:7-10:21, 49 TTABVUE 12-13.
140 Bolin dep. 13:17-21, 49 TTABVUE 116. In 1985, Kal Kan acquired Registration No.
0284342 for PEDIGREE (stylized), issued in 1931. In 2002, the registration was assigned to
Opposer.
141 Bolin dep. 35:4-20, 49 TTABVUE 38.
142 Bolin dep. 84:3-18 & ex. 22, 50 TTABVUE 9, 33 (confidential); see Opposer’s brief, 80
TTABVUE 34.
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• Opposer’s advertising and consumer promotion expenditures for the
PEDIGREE brand from 2011 to 2015 were over $400 million;143
• Opposer has advertised the PEDIGREE brand on television in the United
States since the 1980s, including sponsoring the Westminster Kennel Club
Show from 2008 to 2012, sponsoring an annual “Puppy Bowl” on Animal Planet
just before the Super Bowl, and placing ads during the Super Bowl;144
• Opposer places PEDIGREE brand advertisements in many national
magazines, including People, US Weekly, Better Homes & Gardens;145
• Opposer maintains an extensive presence online, purchasing ads at major
websites such as PetSmart.com, Walmart.com, and CNN.com, maintaining
sites on social media, such as Facebook, Instagram, Twitter, and Snapchat,
and maintaining its own website Pedigree.com, which has three to five million
views per month;146
Opposer also points to two prior nonprecedential Board decisions finding,
respectively, that “the PEDIGREE mark has achieved a degree of renown … with
respect to pet food,” and “counsel for applicant conceded at the oral hearing that
opposer’s ‘PEDIGREE’ marks are famous for dog food.”147 However, as the Board
noted in denying Opposer’s earlier motion for summary judgment, those decisions
were issued long ago, in proceedings involving different parties, on different records,

143 Bolin dep. 85:14-86:7 & ex. 22, 50 TTABVUE 10-11, 33 (confidential); see Opposer’s brief,
80 TTABVUE 34.
144 Bolin dep. 59:25-60:7, 62:10-22, 68:18-69:5, 72:21-73:11, 49 TTABVUE 62-65, 71-72, 75-
76.
145 Bolin dep. 52:2-6, 59:3-10, 49 TTABVUE 55, 62.
146 Bolin dep. 39:25-40:5, 49:19-50:5, 58:6-24, 49 TTABVUE 42-43, 52-53, 61. “A party may
increase the weight the Board will give website evidence by submitting testimony and proof
of the extent to which a particular website has been viewed.” TBMP § 704.08.
147 Mars, Inc. v. Dan-Dee Int’l Ltd., 2005 WL 3551105 (TTAB 2005); Kal Kan Foods, Inc. v.
Hacht Sales & Mktg., Ltd., 1999 WL 792379 (TTAB 1993).
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and are not binding in this proceeding.148 See Hyde Park Footwear Co. v. Hampshire-
Designers, Inc., 197 USPQ 639, 641 (TTAB 1977) (findings of fact in an opposition
between an opposer and a third party cannot be used against a different applicant).
Applicant argues that while the PEDIGREE mark “may be generally recognized
amongst dog owners that regularly shop for dog food…, [Opposer] has submitted no
evidence that the general public recognizes the PEDIGREE mark.”149 However, “[t]he
proper legal standard for evaluating the fame of a mark under the fifth DuPont factor
is the class of consumers and potential consumers of a product or service, and not the
general public.” Palm Bay Imps., 73 USPQ2d at 1694 (“fame for confusion purposes
arises as long as a significant portion of the relevant consuming public … recognizes
the mark as a source indicator”). The relevant consuming public’s perception of the
marks may be proven by indirect evidence of the sort Opposer has submitted. Coach
Servs. v. Triumph Learning, 101 USPQ2d at 1720; Tao Licensing, LLC v. Bender
Consulting Ltd., 125 USPQ2d 1043, 1056 (TTAB 2017).
Applicant argues that Opposer must demonstrate fame prior to Applicant’s first
use of its PET-AGREE mark in 2003 to be relevant to the likelihood of confusion
analysis.150 That is incorrect. Whether Opposer’s PEDIGREE marks achieved fame
prior to Applicant’s first use would be relevant to a dilution analysis, but not a
likelihood of confusion analysis under Section 2(d). For our present purposes, fame,
if it exists, is determined at the time of trial. Hornby v. TJX Cos., 87 USPQ2d 1411,

148 Order denying motion for summary judgment, 41 TTABVUE 4 n.3.
149 Applicant’s brief, 82 TTABVUE 11.
150 Applicant’s brief, 82 TTABVUE 12.
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1416 (TTAB 2008), cited in TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1113
n.69 (TTAB 2019). Applicant finally contends that the consuming public’s
“recognition is tied exclusively to PEDIGREE used in conjunction with a blue ribbon
and a yellow background. There is no testimony that the word mark PEDIGREE,
standing alone, has much significance.”151 As Opposer correctly observes, however, it
owns registrations for standard-character PEDIGREE marks. And as noted above,
the verbal portion of a word and design mark “likely will appear alone when used in
text and will be spoken when requested by consumers.” In re Aquitaine Wine, 126
USPQ2d at 1184. Indeed, unsolicited media coverage has recognized PEDIGREE pet
food by brand name as “the single largest-selling pet food trademark,” “Pedigree dog
food, the biggest-selling brand of dry dog food in the United States,” and “Pedigree,
owned by Mars, is still market leader, both in wet and dried dog food….”152
We find, accordingly, that Opposer’s PEDIGREE marks are commercially strong
for pet food, and are entitled to a commensurately broad scope of legal protection. See
Palm Bay Imps., 73 USPQ2d at 1694 (strong marks “enjoy wide latitude of legal
protection”). The strength of Opposer’s marks enhances the likelihood that customers
would perceive a trademark similar to PEDIGREE as being associated with Opposer,
even if it is used in connection with goods or services other than providing pet food.
See Recot v. Becton, 54 USPQ2d at 1897. The fifth DuPont factor therefore weighs in
favor of Opposer.

151 Applicant’s brief, 82 TTABVUE 10.
152 Supermarket Business 6/1/91, Portland Oregonian 4/26/97, Super Marketing 3/13/98, 45
TTABVUE 92, 99, 101. This evidence is considered insofar as it relates to the PEDIGREE
brands’ reputation and recognition in the media, not for the truth of the matter asserted.
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E. Third Party Marks

Under the sixth DuPont factor, we consider “[t]he number and nature of similar
marks in use on similar goods [or services].” DuPont, 177 USPQ at 567. This factor
may serve as a counterpoint to the fifth DuPont factor, undermining the conceptual
or commercial strength of Opposer’s marks.
Applicant argues that “Third-party use of the PET-AGREE mark demonstrates
that consumers are able to distinguish between PEDIGREE and PET-AGREE.”153 Its
support for this argument consists of three cancelled registrations, the first two of
which were owned by the same registrant:
Registration Mark Pertinent Goods
1648728
(cancelled)
PET-AGREE Electronic ultrasonic sound device used
for pet training
2395039
(cancelled)
PET-AGREE Electronic ultrasonic sound device used
for pet training
2193583
(cancelled)
PET-AGREE Laminate film used on the back of carpeting
to keep moisture from being absorbed by the
padding, sold as an integral part of carpet154

We find, however, that these cancelled registrations showing prior registration of
a term is unavailing, especially since all of them were cancelled due to failure to file
acceptable declarations of continued use under Section 8. As the Board has noted,
“The existence of a cancelled registration — particularly one cancelled for failure to
provide a declaration of continued use — does not tend to show that the cited mark
is weak due to third-party use. A cancelled registration is only evidence that the

153 Applicant’s brief, 82 TTABVUE 27.
154 Applicant’s ex. 39, 61 TTABVUE 9-23.
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registration issued and it does not carry any of the legal presumptions under Section
7(b) of the Trademark Act, 15 U.S.C. § 1057(b).” In re Inn at St. John’s, 126 USPQ2d
at 1745. “Consistent with well-established decisional law, the cancelled registrations
submitted by Applicant have little, if any, probative value.” TiVo v. Tivoli, 129
USPQ2d at 1117.
As the Board stated in Inn at St. Johns, this is a far cry from the “extensive
evidence of third-party use and [live] registrations” that was held to be significant in
Juice Generation, where there were at least twenty-six relevant third-party uses and
registrations of record, see Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
115 USPQ2d 1671, 1675, 1673 n.1 (Fed. Cir. 2015), and in Jack Wolfskin, where there
was “voluminous” evidence of use and at least fourteen registrations, Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797
F.3d 1362, 116 USPQ2d 1129, 1136 & n.2 (Fed. Cir. 2015). See also Primrose
Retirement Communities, LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030
(TTAB 2016) (weakness found based on at least 85 actual uses of ROSE-formative
marks for similar services, eight similar third-party registrations, expert testimony
and other evidence regarding the common nature of ROSE-formative marks in the
industry, and testimony by opposer that it did not vigorously enforce its mark).
Unlike the plaintiff in Primrose Retirement Communities, Opposer has shown that it
actively enforces its rights in the PEDIGREE marks, and has successfully curtailed
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the unauthorized use or registration of marks such as PETAGREE, PEDIGREE
PARK, PEDIGREE PETS, PEDIGREE PERFECTION, and PEDIGREEN.155
Beyond that, under the sixth DuPont factor, “the controlling inquiry is the extent
of third-party marks in use on ‘similar’ goods or services. . . . ‘It is less relevant that
[the mark] is used on unrelated goods or services….’ ” Omaha Steaks Int’l, Inc. v.
Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1694 (Fed. Cir. 2018)
(quoting Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698, 1701 (Fed. Cir. 1992)). In this case, the ultrasonic sound device used
for pet training―the subject of the first two third-party registrations―has only the
most distant, attenuated connection with grooming supplies or pet food, and the
third, laminate film used on the back of carpeting to keep moisture from being
absorbed by the padding, is even more remote. See In re i.am.symbolic, 123 USPQ2d
at 1751 (disregarding third-party registrations for goods in other classes where the
proffering party “has neither introduced evidence, nor provided adequate explanation
to support a determination that the existence of I AM marks for goods in other classes,
... support a finding that registrants’ marks are weak with respect to the
goods identified in their registrations”), cited in In re Fabfitfun, 127 USPQ2d at 1674
n.11.
The totality of the third-party evidence relating to the sixth DuPont factor fails to
show that Opposer’s PEDIGREE marks are weak, either conceptually or
commercially. As a result, the evidence fails to show that the cited mark should be

155 Exs. 29-30, 43 TTABVUE 65-118; Bolin dep. exs. 23-25, 50 TTABVUE 12-14, 34-48.
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afforded such a narrow scope of protection that it would weigh in favor of finding a
likelihood of confusion.
F. Actual Confusion

Under the seventh and eighth DuPont factors, we consider the nature and extent
of any actual confusion, in light of the length of time and conditions under which
there has been contemporaneous use of the parties’ subject marks. DuPont, 177
USPQ at 567.
Applicant’s witnesses―its president and sales manager―aver that they are not
aware of any instance of actual confusion with Opposer’s marks. There were no
misdirected communications to Applicant that were intended for Opposer, no
inquiries about whether Applicant was affiliated with Opposer, no queries about
whether Applicant sells dog food.156 Yet Applicant has been using its mark
contemporaneously with Opposer for over 15 years, since 2003; its website has
displayed its mark at least as early as that year; it places 4,500-9,000 cold calls per
year using the mark; it distributes its catalogs four times a year to 30,000 people
nationwide; and it participates in trade shows across the country.157
Opposer responds that it is unnecessary for a plaintiff in an inter partes
proceeding to show instances of actual confusion in order to establish likelihood of
confusion. According to Opposer, Applicant “has provided no evidence as to when it

156 Somerlot decl. ¶¶ 28-30, 58 TTABVUE 7, Somerlot dep. 90:13-91:5, 79 TTABVUE 93-94;
Rhoades decl. ¶¶ 28-30, 54 TTABVUE 6-7, Rhoades dep. 72:14-17, 135:23-137:8, 44
TTABVUE 19, 50, 67 TTABVUE 23-25.
157 Rhoades dep. 87:22-88:2, 91:3-9, 101:24-102:18, 44 TTABVUE 34-35, 37, 40-41. Somerlot
decl. ¶¶ 4, 20-21, 26-27, 58 TTABVUE 3, 5-6.
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began making cold calls, or that it had a method, procedure, or policy to track whether
confusion was expressed during the cold calls.”158 “Because [Applicant] introduced no
evidence demonstrating the extent to which consumers were exposed to the mark
PET-AGREE during the supposed period of coexistence, the alleged lack of actual
confusion does not favor” Applicant, Opposer concludes.159
Although the evidence is not completely clear, we find that these DuPont factors
weigh somewhat in Applicant’s favor. It is true that Opposer need not demonstrate
instances of actual confusion in order to prove a likelihood thereof. Zheng Cai v.
Diamond Hong, 127 USPQ2d at 1800 (citing Herbko Int’l, Inc. v. Kappa Books, Inc.,
308 F.3d 1156, 1165 (Fed. Cir. 2002)).
Moreover, the Federal Circuit has observed that:
uncorroborated statements of no known instances of actual confusion are
of little evidentiary value. See In re Bissett-Berman Corp., 476 F.2d 640,
642, 177 USPQ 528, 529 (CCPA 1973) (stating that self-serving testimony
of appellant’s corporate president’s unawareness of instances of actual
confusion was not conclusive that actual confusion did not exist or that
there was no likelihood of confusion). A showing of actual confusion would
of course be highly probative, if not conclusive, of a high likelihood of
confusion. The opposite is not true, however. The lack of evidence
of actual confusion carries little weight….

In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003)
(emphasis added) (citing J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144
USPQ 435, 438 (CCPA 1965) (uncorroborated statements of no known instances of
actual confusion are of little evidentiary value).

158 Opposer’s reply brief, 84 TTABVUE 21.
159 Opposer’s reply brief, 84 TTABVUE 22.
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The seventh and eighth DuPont factors are interrelated. “[T]he absence of any
reported instances of actual confusion would be meaningful only if the record
indicated appreciable and continuous use by applicant of its mark for a significant
period of time in the same markets as those served by opposer under its marks.”
Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). The record
in this case indicates that Applicant has made continuous use of its mark for over 15
years, but the extent of that use is less clear. The record does not indicate how long
Applicant has made cold calls and disseminated catalogs, apart from recent activity,
nor does it indicate the number of visitors to its website or trade show booths; and
even though Applicant avers that it has produced its financial information to Opposer
for the years 2012 through 2014,160 it has not made its advertising and sales
information of record. Applicant has thus established use of its mark for a
considerable period, but we are left to guess at how extensive that use might have
been.
On the other hand, Opposer has established that its mark is well-known under
Section 2(d), with use of significant duration and nationwide scope. Yet despite that
long and appreciable use, at the same time and over the same territory as Applicant’s
recent and significant cold calls, promulgation of catalogs, and maintenance of its
Internet presence, Opposer cannot point to even one instance of actual confusion.
“Based on this evidence, we find that there has been a reasonable opportunity for
confusion to have occurred and that the lack of any reported instances of confusion

160 Applicant’s answers and supplemental answers to interrogatories 12 and 13, 44
TTABVUE 12-13.
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weighs against finding that there is a likelihood of confusion.” Citigroup Inc. v.
Capital City Bank Grp., Inc., 94 USPQ2d 1645, 1662 (TTAB 2010), aff’d, 98 USPQ2d
1253.
Consequently, the seventh and eighth DuPont factors weigh in Applicant’s favor,
although, given the gaps in the evidence, they carry little weight, and are outweighed
by the other factors. See Fiserv, Inc. v. Elec. Transaction Sys. Corp., 113 USPQ2d
1913, 1922 (TTAB 2015) (“We note, however, that while the presence of confusion
may be very useful to our analysis, the lack of evidence of actual confusion carries
little weight. … This is especially true where, as here, the record is unclear as to the
amount of meaningful opportunities for confusion to have occurred among
purchasers.”); Nike, Inc. v. WNBA Enters., LLC, 85 USPQ2d 1187, 1202 (TTAB 2007)
(“The lack of actual confusion is only one of a number of factors to be considered in
determining likelihood of confusion and in this case we find that it is outweighed by
all the other factors in opposer’s favor.”).
G. Variety of Goods and Services on Which Opposer’s Marks are Used
The ninth DuPont factor is “the variety of goods on which a mark is or is not used.”
DuPont, 177 USPQ at 567.
Opposer contends that the PEDIGREE marks are used on a wide variety of goods
and services.161 Opposer’s pleaded PEDIGREE registrations identify canned dog food,
pet food; a periodically published journal pertaining to health care of pets; cups, bowls
and mugs used to promote the sale of pet food; computer software used to promote

161 Opposer’s brief, 80 TTABVUE 38-39.
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the sale of pet food; promotion of public awareness about the need for adopting
animals, responsible pet ownership, and the proper care and treatment of pets; and
charitable fundraising.162 Ms. Bolin testified regarding Opposer’s provision of these
PEDIGREE brand goods and services in the United States, and identified over 150
distinct items (SKUs, or stock keeping units) currently sold in the United States
bearing the PEDIGREE mark.163 She testified about promotional products Opposer
has sold in the United States under the PEDIGREE FOUNDATION service
mark―products such as pajamas, yoga pants, scarves, hats, dog leashes, dog collars,
dog bowls, picture frames, Christmas ornaments and calendars.164 And she testified
about other types of promotional PEDIGREE products, such as T-shirts, umbrellas,
lunch boxes, cell phone covers, pens, notebooks, bandannas for dogs, collars, leashes,
and posters, Opposer has distributed at shelters to promote the adoption of dogs,
among other venues.165 Applicant acknowledges the applicability of this DuPont
factor,166 but does not counter Opposer’s argument.
If a party in the position of plaintiff uses its mark on a wide variety of goods and
services, then purchasers are more likely to view a defendant’s related goods or
services under a similar mark as an extension of the plaintiff's line. See, e.g., In re

162 Notice of Opposition ¶¶ 1-3, 1 TTABVUE 11-14, as amended, 46 TTABVUE 6-7 (TESS
printouts of registrations attached).
163 See Bolin dep 17:6-21:4, 22:11-24, 25:9-26:19, 29:6-30:24, 32:7-20, 34:2-6, 36:5-14, 39:16-
24, 42:8-44:12; 49 TTABVUE 20-25, 28-29, 32-33, 35, 37, 39, 42, 45.
164 Bolin dep. 26:20-27:18; 49 TTABVUE 29-30.
165 21:9-22:10, 23:5-24:8, 23-25; 49 TTABVUE 24-27.
166 Applicant’s brief, 82 TTABVUE 8.
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Hitachi, 109 USPQ2d at 1774; In re Wilson, 57 USPQ2d 1863, 1867 (TTAB 2001) (use
on a wide variety of goods weighs in favor of likelihood of confusion).
Accordingly, we find that the ninth DuPont factor weighs in Opposer’s favor.
H. Balancing the Factors

We have considered all of the evidence of record and all of the arguments of the
parties, including evidence and arguments not specifically discussed in this opinion,
as they pertain to the relevant DuPont likelihood of confusion factors. We find that
the marks are similar; the goods and services are related, and move through the same
or similar channels of trade to the same or overlapping classes of customers; these
customers cannot be expected to exercise sufficient care or sophistication to avoid
confusion; Opposer’s marks are inherently distinctive and commercially strong, and
are not weak or diluted in the marketplace due to third-party use of similar marks
on similar goods or services. Even without this commercial strength, however, the
balance of factors would weigh in Opposer’s favor. There is no evidence of actual
confusion, but this factor is outweighed by the other DuPont factors addressed above.
Thus, the evidence as a whole leads us to conclude that a likelihood of confusion
exists.
IV. Conclusion

For the above reasons, we conclude that Applicant’s subject mark, as used in
connection with the services identified in the application, so resembles the cited
registered marks as to be likely to cause confusion or mistake, or to deceive under
Section 2(d) of the Trademark Act. Having determined that Opposer is entitled to
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prevail in this opposition proceeding based upon its Section 2(d) claim of likelihood of
confusion, we need not reach the merits of Opposer’s dilution claim.
Decision: The opposition to registration of Applicant’s mark PET-AGREE is
sustained under Section 2(d) of the Trademark Act.