Mountain Organic Foods, LLC

Trademark Trial and Appeal Board

Aug 5, 2008

No. 78563148 (T.T.A.B. Aug. 5, 2008)

Mailed:
8/5/2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

In re Mountain Organic Foods, LLC
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Serial No. 78563148

_______

Thomas W. Lathram, of Silicon Edge Law Group, for Mountain
Organic Foods, LLC

Michael Kazazian, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
_______

Before Seeherman, Bergsman, and Ritchie de Larena,
Administrative Trademark Judges.

Opinion by Ritchie de Larena, Administrative Trademark
Judge:
Mountain Organic Foods, LLC filed an application to
register the mark BEAR FRUIT BAR, in standard character
format, for “organic fruit bars made from organic fruits
and organic vegetable bars made from organic vegetables” in
International Class 29.1
The trademark examining attorney refused registration
of the mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s
mark so resembles the mark BARE FRUIT, registered for

1 Application Serial No. 78563148, filed February 8, 2005,
pursuant to Section 1(b) of the Trademark Act, 15 USC §1051(b),
alleging a bona fide intent to use the mark in commerce, and
disclaiming the exclusive right to use the term “FRUIT BAR.”
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 78563148
2
“dried, organic fruits and nuts,”2 that when used in
connection with applicant’s identified goods, applicant’s
mark will be likely to cause confusion.
Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney
filed briefs. For the reasons discussed herein, the Board
affirms the final refusal to register.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973); see also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the goods.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental
inquiry mandated by §2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods
and differences in the marks”). We consider each of the
factors as to which applicant or the examining attorney
presented arguments or evidence.

2 Registration No. 3163402, registered October 24, 2006.
Registrant disclaimed the exclusive right to use the term
“FRUIT.”
Serial No. 78563148
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The similarity or dissimilarity of the marks
in their entireties
We consider and compare the appearance, sound,
connotation and commercial impression of the marks in their
entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005). Both marks begin with the
phonetically identical words BEAR/BARE FRUIT. These words
are also visually very close. The additional word BAR in
applicant’s mark does not serve to distinguish it from the
registered mark, as it is merely a generic term for the
product (an “organic fruit bar”).
We recognize that, because of the differences in
spelling, the word BEAR in applicant’s mark would most
likely raise in consumers’ minds a reference to an animal
or perhaps suggest the verb to bear (or “bring forth”)
fruit. Meanwhile the word BARE in the registered mark
means without adornment, suggesting that registrant’s
product is “simply fruit.” Although these words have
different connotations, overall we find that this is not
sufficient to distinguish the marks. In particular, these
goods may be recommended by word-of-mouth, where the
difference in spelling of BEAR/BARE would not come into
play, and therefore the difference in connotation would
have no effect. Further, because these are presumably
inexpensive products that may be purchased on impulse and
without care, consumers are not likely to notice the
difference in spelling and therefore the difference in
Serial No. 78563148
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connotation. In sum, the marks convey the same commercial
impression.
In comparing the marks in their entireties, we find
that the similarities outweigh the differences.
Accordingly, the first du Pont factor weighs in favor of
finding that there is a likelihood of consumer confusion.

The similarity or dissimilarity and nature
of the goods and classes of consumers
It is not necessary that the goods at issue be similar
or competitive, or even that they move in the same channels
of trade, to support a holding of likelihood of confusion.
It is sufficient instead 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
originate from the same producer. See In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
The examining attorney has submitted evidence of
third-party registrations that include both “fruit bars” as
identified in the pending BEAR FRUIT BAR application, and
“dried fruit” as identified in the cited registration. The
examining attorney has even submitted evidence of third-
party registrations that merge the identified goods
together as “fruit bars made from dried fruits.” These
Serial No. 78563148
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third-party registrations serve to suggest that the goods
are of a type which may emanate from a single source. See
In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB
1993). Further, because both applicant’s and the
registrant’s goods are “organic,” and because registrant’s
products may be an integral component of applicant’s goods,
we find applicant’s goods and the registrant’s to be
closely related.
Applicant argues that it targets the sophisticated
consumer of “organic” products, and that its organic fruit
and vegetable bars would be sold in a different aisle from
registrant’s dried organic fruits and nuts.3 Applicant does
not offer any evidence in support of this point, however,
and we find it to be unpersuasive. Organic foods are no
longer esoteric items that are sold only in health food
stores and the like. Rather, they are sold in mainstream
grocery stores, and are purchased by the public at large.
In any event, even a sophisticated consumer is not immune
from source confusion. Since the marks are similar in
appearance and sound and used on closely related products,
even a careful, sophisticated consumer is not likely to
note the differences in the marks. Cunningham v. Laser
Golf Corp., 222 F.3d 943, 948-949 (Fed. Cir. 2000).

3 Even so, if true then consumers would not have the opportunity
to make a side-by-side comparison, thus enhancing the similarity
of the marks in appearance and sound.
Serial No. 78563148
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Conclusion
Considering all of the evidence of record as it
pertains to the du Pont factors, we conclude that
applicant’s mark BEAR FRUIT BAR for “organic fruit bars
made from organic fruits and organic vegetable bars made
from organic vegetables” is likely to cause confusion with
BARE FRUIT for “dried, organic fruits and nuts.” In
reaching this conclusion, we point out that to the extent
that there may be any doubt on the issue of likelihood of
confusion, it is well-established that such doubt is to be
resolved in favor of the registrant. In re Hyper Shoppes
(Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir.
1988).”
Decision: The refusal to register is affirmed.