Matthew W. Fitzgerald

Trademark Trial and Appeal Board

Jan 17, 2012

No. 77812771 (T.T.A.B. Jan. 17, 2012)

Mailed: January 17, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Matthew W. Fitzgerald
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Serial No. 77812771
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Adam J. Bruno of Bay State IP, LLC for applicant.

Andrew C. Leaser, Trademark Examining Attorney, Law Office 112
(Angela Bishop Wilson, Managing Attorney).
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Before Grendel, Mermelstein, and Shaw, Administrative Trademark
Judges.

Opinion by Shaw, Administrative Trademark Judge:

Matthew W. Fitzgerald has filed an application to register
the mark shown below, MANN ORCHARDS with an “orchard store front
and orchard trees” design, on the Principal Register for pies,
bread and pastries, in International Class 30, and raw fruits, in
International Class 31.1 Applicant has disclaimed the exclusive
right to use “orchards” apart from the mark as shown.

1 Application Serial No. 77812771, filed August 26, 2009, pursuant to Section
1(b) of the Trademark Act, 15 U.S.C. § 1051(b), alleging bona fide intent to
use the mark in commerce.
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 77850772

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Registration has been finally refused pursuant to Trademark
Act § 2(d), 15 U.S.C. § 1052(d), on the ground that applicant’s
mark so resembles the mark MANN, in the stylized form shown
below, for fresh vegetables, in International Class 31, as to be
likely to cause confusion.2

When the refusal was made final, applicant appealed and filed a
request for reconsideration which was denied by the examining
attorney. Applicant and the examining attorney both filed briefs
and the applicant filed a reply brief.
Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis
of all of the probative facts in evidence that are relevant to
the factors bearing on the likelihood of confusion issue. See In
re E. I. du Pont de Nemours and Co., 476 F.2d 1357, 177 USPQ 563,
567 (CCPA 1973). See also Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73

2 Registration No. 987992, issued on July 9, 1974 and alleging a date of first
use in commerce as early as 1939. Renewed.
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USPQ2d 1689, 1692 (Fed. Cir. 2005); In re Majestic Distilling
Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003); and In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d
1531, 1534 (Fed. Cir. 1997). In considering the evidence of
record on these factors, we keep in mind that “[t]he fundamental
inquiry mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and
differences in the marks.” Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); and In re
Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209, 1210 (TTAB
1999) and the cases cited therein.
A. The Similarity or Dissimilarity of the Marks in Their
Entireties

With respect to the marks, we must compare the marks in
their entireties as to appearance, sound, connotation and
commercial impression to determine the similarity or
dissimilarity between them. Palm Bay Imports, 73 USPQ2d at 1691.
The test, under the first du Pont factor, is not whether the
marks can be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently similar
in terms of their overall commercial impression that confusion as
to the source of the services offered under the respective marks
is likely to result. The focus is on the recollection of the
average purchaser, who normally retains a general rather than a
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specific impression of trademarks. See Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106 (TTAB 1975).
Applicant’s mark consists of an “orchard store front and
orchard trees” design with the wording MANN ORCHARDS across the
front of the store. The letter “O” in ORCHARDS appears in the
outline of an apple and the term ORCHARD has been disclaimed.
The mark appears in the colors red, black and white. The mark in
the cited registration consists solely of the word MANN in a
block letter typeface.
Applicant argues that the design elements in its mark
“create a different overall commercial impression to the relevant
public” when compared to the registered mark. Br. at 6.
Applicant admits that the term MANN exists within its mark, but
counters that “the dominant feature of [its] mark comprises the
orchard store front and orchard trees, which are greatly enhanced
by the additional literal term orchards.” Id. Thus, the addition
of these design elements, modeled after applicant’s place of
business, would lead a consumer to “expect to purchase apples,
and apple pies from the place depicted in the image.” Br. at 7.
That is, applicant contends that the addition of the design and
the term ORCHARDS removes any likelihood of confusion because it
“affords applicant’s mark clear source identification and
distinctive goods.” Id.
We disagree.
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The mark in the cited registration, MANN, is incorporated in
full in applicant’s mark. Moreover, the term MANN in both marks
has the look and feel of a surname. As such, the commercial
impression created by both marks suggests an enterprise or grower
named after an individual or family with the name “Mann.”
Consumers encountering registrant’s MANN mark may view it as a
simpler version of the longer MANN ORCHARDS and design mark and
mistakenly think the goods come from the same source. See In Re
Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir.
2010) (ML is likely to be perceived as a shortened version of ML
MARK LEES.).
Applicant argues that there is no general rule as to whether
letters or design will dominate in composite marks. Citing In re
Electrolyte Laboratories Inc., 929 F.2d 645, 16 USPQ2d 1239, 1240
(Fed. Cir. 1990). We agree that no part of mark can be ignored
and, further, that in some cases designs have a significant
impact on the overall commercial impression of the mark.
Nevertheless, both the CCPA and the Federal Circuit have said
that the words often are the crucial feature of a composite mark.
See CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed.
Cir. 1983) (“[I]n a composite mark comprising a design and words,
the verbal portion of the mark is the one most likely to indicate
the origin of the goods to which it is affixed.” (citing W.B.
Roddenbery Co. v. Kalich, 158 F.2d 289, 72 USPQ 138, 139-40 (CCPA
1946)); Rice-Stix Dry Goods Co. v. Indus. Undergarment Corp., 152
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F.2d 1011, 68 USPQ 186, 187 (CCPA 1946))). Moreover, the words
are likely to be remembered by potential purchasers of
applicant’s goods, as they would be used to call for or request
the applicant’s goods. In re Appetito Provisions Co., Inc., 3
USPQ2d 1553, 1554 (TTAB 1987) (“[I]f one of the marks comprises
both a word and a design, then the word is normally accorded
greater weight because it would be used by purchasers to request
the goods or services.”).
In this case, we find that MANN ORCHARDS is the dominant
feature of applicant’s mark. The presence of the “orchard store
front and orchard trees” design in applicant’s mark is less
dominant because it tends to reinforce the descriptive
connotation of the term ORCHARD and does little to create a
commercial impression different from registrant’s stylized word
mark. Thus, although applicant’s mark includes a design and the
word ORCHARD, when we compare the marks in their entireties we
find that on the whole they are similar in commercial impression
and that the design in applicant’s mark is not sufficient to
distinguish the marks.
B. The Similarity or Dissimilarity and Nature of the Goods

With respect to the goods, applicant is seeking to register
its mark for “pies, bread and pastries” and “raw fruits.” The
registered mark covers “fresh vegetables.” As a general rule, is
not necessary that the respective goods be competitive, or even
that they move in the same channels of trade to support a holding
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of likelihood of confusion. It is sufficient that the respective
goods are related in some manner, and/or that the conditions and
activities surrounding the marketing of the goods are such that
they would or could be encountered by the same persons under
circumstances that could, because of the similarity of the marks,
give rise to the mistaken belief that they originated from the
same producer. In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
The examining attorney made of record ten use-based,
registrations owned by third parties demonstrating that raw
fruits and fresh vegetables often emanate from the same source.
The following examples are illustrative:
Registration No. 2859764, CALIFORNIA”S LARGEST LEGAL HERB
FARM, for, inter alia, “fresh vegetables” and “raw fruits.”

Registration No. 3226518, HAND-PICKED RIPE ON MAUI, for,
inter alia, “raw fruits” and “fresh vegetables.”

Registration No. 3544125, “thumbs-up” design, for, inter
alia, “raw fruits” and “fresh vegetables.”

Registration No. 3481665, TRIANA, for inter alia, “fresh
vegetables” and “raw fruits.”

Registration No. 3529469, C.H. BELT & ASSOCIATES, for inter
alia, “fresh vegetables” and “raw fruits.”

Registration No. 3720007, OUR WORLD, for inter alia, “fresh
vegetables” and “raw fruits.”

Registration No. 3148716, MALENA BRAND, for inter alia,
“fresh vegetables” and “raw fruits.”

Third-party registrations which individually cover a number
of different items and which are based on use in commerce serve
to suggest that the listed goods and/or services are of a type
which may emanate from a single source. See In re Albert Trostel
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& Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993). In this case, the
evidence of record supports a finding that the same marks are
often used to identify both raw fruits and fresh vegetables.
The examining attorney also included printouts from a number
of internet websites showing that fruits and vegetables are
routinely sold alongside baked goods such as applicant’s pies,
breads and pastries. The following examples are illustrative:
www.melickstownfarm.com – “We grow it ourselves. For nearly
300 years, the Melick family has provided our community with
delicious, locally grown, farm fresh fruits and vegetables!
We also sell plants, shrubs, jams and jellies, baked goods.”
(Emphasis added).
www.paulusfarmmarket.com – “Paulus Farm Market is a fun
venture for the whole family, with fruits, vegetables, deli,
farm raised beef, baked goods, mixes, candies, plants,
planters and much more.” (Emphasis added).
http://www.rockvillemd.gov/events/farmers.htm – “Every week
the Farmers’ Market transforms itself as different fruits
and vegetables become available throughout the season. Your
pick of farm-fresh fruits and vegetables, bedding plants,
cut flowers, preserves, honey herbs, baked goods, and more.”
(Emphasis added).
http://sakumamarket.com – “We farm 1500 acres of fruit,
growing many varieties so that you have fresh strawberries,
fruit, and vegetables all summer long” and “Our newest
addition is the Sakuma Market Bakery.” (Emphasis added).
www.bfmazzeo.com – “Today, B.F. Mazzeo's has expanded from
fresh fruits and vegetables to prepared foods, fresh baked
goods, party trays, gourmet cheeses and groceries.”
(Emphasis added).
http://www.peacefulvalleyorchards.com/ – “Our farm market is
always stocked with fresh fruits and vegetables ... Don't
miss out on our delicious fresh baked pies!” (Emphasis
added).
These websites show that fresh vegetables are often sold
alongside freshly baked goods, especially at local farm markets.
Thus, consumers seeking freshly grown fruits and vegetables and
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freshly prepared baked goods may often purchase these goods from
the same source. Based on all of the evidence, we find all of
applicant’s goods to be closely related to registrant’s goods.
C. Channels of Trade

Applicant argues that its goods travel in channels of trade
different from those of the registrant’s goods and therefore it
is unlikely the goods bearing the marks would be encountered by
the same consumers. Reply Br. at 7. In particular, applicant
alleges that its “fruits and vegetables, grown and harvested on
site, and freshly baked goods, are all sold directly at
applicant’s orchard (which constitutes the predominant portion of
the mark).” Id. at 6. Conversely, registrant is alleged to be a
wholesaler whose business is “packaging and distributing
vegetables, grown by others, to locations in bulk quantities.”
Id. Applicant’s argument ignores the fact that there is no
limitation regarding channels of trade in either applicant’s or
registrant’s identification of goods.
In an ex parte appeal, likelihood of confusion is determined
on the basis of the goods as they are identified in the
application and the cited registration. In re Elbaum, 211 USPQ
639, 640 (TTAB 1981); In re William Hodges & Co., Inc., 190 USPQ
47, 48 (TTAB 1976). See also Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990) (“The authority is legion that the question of
registrability of an applicant’s mark must be decided on the
basis of the identification of goods set forth in the application
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regardless of what the record may reveal as to the particular
nature of an applicant’s goods, the particular channels of trade
or the class of purchasers to which the sales of goods are
directed”).
Because there are no limitations as to channels of trade or
classes of purchasers in either the application or the
registration, it is presumed that the application and the
registration encompass all of the goods of the type described in
the description of goods, that the goods so identified move in
all channels of trade normal for those goods, and that the
products are available to all classes of purchasers for the
listed products. See In re Linkvest S.A., 24 USPQ2d 1716 (TTAB
1992). Based on the evidence demonstrating that these goods are
frequently sold alongside each other, we find that applicant’s
and registrant’s goods travel in the same channels of trade and
are available to consumers seeking fresh food and fresh produce.
We conclude that in view of the substantial similarities
between the marks, their contemporaneous use on the identified
related goods is likely to cause confusion as to the source or
sponsorship of such goods.
Decision: The refusal under Section 2(d) of the Trademark
Act is affirmed and registration to applicant is refused.