No. 76584265 (T.T.A.B. Jun. 3, 2009)

Nittany Corporation

Trademark Trial and Appeal BoardJun 3, 2009

No. 76584265 (T.T.A.B. Jun. 3, 2009)

Hearing: Mailed: May 12, 2009 June 3, 2009 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Nittany Corporation ________ Serial No. 76584265 _______ Timothy D. Pecsenye of Blank Rome LLP for Nittany Corporation. Ernest Shosho, Trademark Examining Attorney, Law Office 117 (Loretta C. Beck, Managing Attorney). _______ Before Walters, Taylor and Bergsman, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Nittany Corporation (“applicant”) filed a use-based application to register the mark GOLDEN GOURMET SNACKS, in standard character form, for goods ultimately identified as follows: Fried pork rinds, in Class 29; and, Corn chips and tortilla chips, in Class 30. Applicant disclaimed the exclusive right to use the word “snacks.” The Trademark Examining Attorney refused to register applicant’s mark under Section 2(d) of the Trademark Act of THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 78584265 2 1946, 15 U.S.C. §1052(d), on the ground that applicant’s mark is likely to cause confusion with the mark GOLDEN GOURMET, in typed drawing form, for “confectionary treats, namely, sweetened popcorn, nuts and pretzels,” in Class 30.1 Registrant disclaimed the exclusive right to use the word “gourmet.” The appeal has been fully briefed, and applicant and the examining attorney appeared at an oral hearing. Our determination of likelihood of confusion 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 issue of likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re Majestic Distilling 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 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 1 Registration No. 2421903, issued January 16, 2001; Sections 8 and 15 affidavits accepted and acknowledged. Serial No. 78584265 3 characteristics of the goods and differences in the marks”). A. The similarity or dissimilarity and nature of the goods described in the application and registration. Applicant is seeking to register its mark for fried pork rinds, corn chips and tortilla chips and registrant’s mark is registered for “confectionary treats, namely, sweetened popcorn, nuts and pretzels.” It is well settled that applicant’s goods and the registrant’s goods do not have to be identical or directly competitive to support a finding that there is a likelihood of confusion. It is sufficient if the respective products are related in some manner and/or that the conditions surrounding their marketing are such that they would be encountered by the same persons under circumstances that could, because of the similarity of the marks used in connection therewith, give rise to the mistaken belief that they emanate from or are associated with a single source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993); In re International Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). The Examining Attorney has submitted numerous use- based, third-party registrations for products listed in both the application and registration at issue. Third- Serial No. 78584265 4 party registrations which individually cover a number of different services that are based on use in commerce may have some probative value to the extent that they serve to suggest that the listed services are of a type which may emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d at 1785-1786; In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The registrations listed below are representative.2 Mark Reg. No. Goods MAZEL NOSH 2765821 Tortilla chips, corn chips, candy coated popcorn, chocolate covered snack foods NYSNACKS 2955967 Fried pork rinds, corn chips, nacho cheese tortilla chips, baked blue corn tortilla chips, candied nuts and/or popcorn. UNCLE RAY’S 2945076 Corn chips, tortilla chips, candy coated popcorn, KITCHEN COOKED 2957169 Pork rinds, tortilla chips, corn chips, candy coated popcorn CHARLES 1722211 Fried pork rinds, corn chips, tortilla chips, candy-coated pretzels and nuts, caramel coated popcorn 2 We have not included the entire description of goods for each of the registrations. Only the goods in both applicant’s application and registrant’s registration are listed. Serial No. 78584265 5 The Examining Attorney also submitted the following evidence to show that the goods in the application and registration are related: 1. An excerpt from the Snack Food Association website (www.sfa.com). The Snack Food Association is an international trade association. Members of the association include, inter alia, manufacturers of pork rinds, tortilla chips, popcorn, cheese snacks, snack nuts, corn snacks, fruit snacks, and snack cakes and cookies. The relevance of this website excerpt is that it shows that snack foods include both sweet and salty foods.3 2. An excerpt from the HERR’S website (www.herrs.com) describing the product line as including corn chips, pork rinds, tortilla chips, cheese flavored popcorn, and chocolate covered pretzel rods. 3. An excerpt from the FritoLay website (www.fritolay.com) describing the product line as including tortilla chips, corn chips, and CRACKER JACK, “a confection of caramel-coated popcorn and peanuts.”4 3 See also the excerpt from the GARRET Popcorn Shops website (www.garretpopcornshops.com) HERR’S website (www.herrsstore.com), BARREL O’ FUN website (www.barrelofun.com) showing that these companies make both plain popcorn (a salty snack) as well as candy-coated popcorn (a confectionary treat). 4 The Random House Dictionary of the English Language (Unabridged), p. 469 (2nd ed. 1987). The Board may take judicial notice of dictionary evidence. University of Notre Dame du Lac Serial No. 78584265 6 4. An excerpt from the Snyders of Hanover website (http://snydersofhanvoer.stores.yahoo.net) describing the product line as including tortilla chips, corn chips, and chocolate covered pretzels. Applicant, on the other hand, contends that applicant’s salty snacks and registrant’s sweet treats are completely different types of foods and the manufacturers of salty snacks do not make sweet treats. To support its argument, applicant submitted excerpts from websites of producers of salty snacks5 and from producers of sweet treats.6 In these excerpts, the companies that manufacture salty snacks do not manufacture sweet treats and vice versa. However, applicant’s evidence does not rebut the evidence submitted by the Examining Attorney. Applicant’s evidence merely shows that the companies that applicant selected, with the exception of See’s Candies, do not sell both salty snacks and sweet treats. Applicant’s evidence does not prove that the companies identified by the Examining Attorney in the third-party registrations and v. J. C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). 5 Grippo’s Snack Foods, Inc., Rudolph Foods, Mike Sell’s Potato Chip Co., and Bickel’s Snack Foods Inc. 6 Fannie May Candies, Asher’s Chocolates Inc., Maron Chocolates, Steel’s Fudge, and Russell Stover Candies, Inc. Applicant also submitted an excerpt from the See’s Candies websites. However, the excerpt from See’s Candies shows that See’s sells salted nuts (a salty snack), as well sweet treats. Serial No. 78584265 7 websites do not, in fact, sell both salty snacks and sweet treats. Applicant also argues that neither applicant’s salty snacks nor registrant’s sweet treats would be located in similar sections or aisles of a grocery or convenience store.7 The only evidence of record regarding how the products are sold is in the excerpts from the SAFEWAY and GIANT supermarket websites (safeway.com and peapod.com). The SAFEWAY website advertises salty snacks and sweet treats together under “snacks” (e.g., corn chips, tortilla chips, pork rinds, covered pretzels, caramel and toffee popcorn, cookies, etc.). The GIANT website also advertises salty snacks and sweet treats under the heading of “Snacks, Cookies & Candy.” At least in the on-line presentation of products by two supermarket chains, salty snacks and sweet treats are sold in the same location. In view of the foregoing, we find that the goods at issue are related. B. The similarity or dissimilarity of likely-to-continue trade channels and classes of consumers. Because there are no limitations as to channels of trade or classes of purchasers in the description of goods in either the application or the registration, it is 7 Applicant’s Brief, pp. 6-7 and 10. Serial No. 78584265 8 presumed that applicant’s salty snacks (i.e., pork rinds, corn chips, and tortilla chips) and registrant’s sweet treats (i.e., “confectionary treats, namely, sweetened popcorn, nuts and pretzels”), move in all channels of trade normal for those services, and that they are available to all classes of purchasers for the listed goods. See In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). The only evidence of record regarding where the products at issue are sold is the SAFEWAY and GIANT websites. As discussed above, those websites show that salty snacks and sweet treats are sold in the same section of the websites. Moreover, it is common knowledge that ordinary consumers purchase and eat both salty snacks and sweet treats and that both sets of products may be purchased in the same stores. Accordingly, we find that the products at issue move in the same channels of trade and are sold to the same classes of consumers. C. The conditions under which and buyers to whom sales are made, i.e. “impulse” vs. careful, sophisticated purchasing. Applicant's and registrant's identifications of goods do not contain any limitations pertaining to the conditions of sale of the goods. Therefore, their respective identifications of goods are broad enough to encompass inexpensive salty snacks and sweet treats which may be sold Serial No. 78584265 9 in grocery stores and convenience stores to consumers who may not exercise a high degree of care. D. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. We now turn to the du Pont likelihood of confusion factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177 USPQ at 567. In a particular case, any one of these means of comparison may be critical in finding the marks to be similar. In re White Swan Ltd., 9 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks, we are mindful that the test 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 so that confusion as to the source of the goods and services offered under the respective marks is likely to result. San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5, 1992). The proper focus is on the recollection of Serial No. 78584265 10 the average customer, who retains a general rather than a specific impression of the marks. Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). In this case, the average consumer of applicant’s “salty snacks” and registrant’s “sweet treats” are ordinary consumers. Applicant’s mark GOLDEN GOURMET SNACKS is similar to registrant’s mark GOLDEN GOURMET to the extent that both marks share the term “Golden Gourmet.” It is a well- established principle that, in articulating reasons for reaching a conclusion on the issue of likelihood of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Thus, we find the term “Golden Gourmet” is the dominant portion of applicant’s mark because the word “snacks” is descriptive when it is used in connection with fried pork rinds, corn chips and tortilla chips. When used in connection with food, “snacks” means “a small portion of food or drink or a light Serial No. 78584265 11 meal, esp. one eaten between regular meals.”8 Therefore, the term “Golden Gourmet” is accorded more weight than the word “snacks” in our comparison of the marks. In re National Data Corp., 224 USPQ at 751. The significance of the term “Golden Gourmet” as the dominant element of applicant’s mark is further reinforced by its location as the first part of the mark. See Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered”); see also Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers must first notice the identical lead word). As indicated above, applicant’s mark contains the entire registered mark (i.e., GOLDEN GOURMET). Likelihood 8 The Random House Dictionary of the English Language (Unabridged), p. 1805 (2nd ed. 1987). See also the Wikipedia entry for snack food (“type of food not meant to be eaten as a main meal of the day . . . but one that is intended to assuage a person’s hunger between these meals”). Serial No. 78584265 12 of confusion is often found where the entirety of one mark is incorporated within another. In re Denisi, 225 USPQ 624, 626 (TTAB 1985) (“the fact that [applicant’s] mark herein [PERRY’S PIZZA] incorporates the descriptive term ‘pizza’ as part of the mark presented for registration does not obviate the likelihood of confusion with the mark of the cited registration [PERRY’S]”); Johnson Publishing Co. v. International Development Ltd., 221 USPQ 155, 156 (TTAB 1982) (EBONY for cosmetics and EBONY DRUM for hairdressing and conditioner); In re South Bend Toy Manufacturing Company, Inc., 218 USPQ 479, 480 (TTAB 1983) (LIL’ LADY BUGGY for toy doll carriages is likely to cause confusion with LITTLE LADY for doll clothing because “the word ‘buggy’ is clearly descriptive of applicant’s doll carriage products” and “would fail to alter the perceived identity of the dominant and more arbitrary ‘LITTLE LADY’ and ‘LIL’ LADY’ elements of these marks”). Accordingly, applicant’s mark GOLDEN GOURMET SNACKS is virtually identical to registrant’s mark GOLDEN GOURMET. We are not persuaded that the addition of the word “snacks” to applicant’s mark is sufficient to differentiate applicant’s mark from the registered mark in any meaningful way. As indicated above, the word “snacks” is descriptive, if not generic, when used in connection with applicant’s Serial No. 78584265 13 food products thereby making the term “Golden Gourmet” that part of the mark on which consumers will focus their attention. Applicant argues that registrant’s mark GOLDEN GOURMET is highly suggestive and, therefore, it should be accorded only a narrow scope of protection.9 Applicant has submitted three third-party GOLDEN GOURMET registrations and three third-party GOLD GOURMET registrations, shown below, for food products to prove that registrant’s GOLDEN GOURMET mark is “highly suggestive and diluted.” Mark Reg. No. Goods GOLDEN GOURMET 3211841 Ice cream cone mix and tortilla mix GOLDEN GOURMET and design 2941718 2230970 Blintzes, knishes, pierogies10 GOURMET GOLD and design 1661878 Coffee GOURMET GOLD 1830449 Frozen fried potatoes GOURMET GOLD 1950996 Seasonings 9 Applicant’s Brief, pp. 11-15. Applicant also submitted a number of other third-party registrations consisting of the word “Golden” followed by a word beginning with the letter “G” (e.g., GOLDEN GRIDDLE, GOLDEN GLEN, GOLDEN GIRL BAKERIES, etc.). These other third-party registrations have limited probative value because the marks are not similar to either applicant’s mark or registrant’s mark and, therefore, they do not show that the term GOLDEN GOURMET is suggestive or diluted. 10 These registrations are owned by the same entity. Serial No. 78584265 14 Applicant’s contention that registrant’s mark GOLDEN GOURMET is suggestive, and therefore should be accorded a narrow scope of protection is not persuasive. First, there are only two other entities that have registered marks with the term GOLDEN GOURMET, and they are for products that are not as close to registrant’s products (sweetened popcorn, nuts and pretzels) as applicant’s products (fried pork rinds, corn chips, tortilla chips). Two of the registrations, owned by the same entity, are for blintzes, knishes and pierogis that are ethnic foods. A “blintz,” from Jewish cookery, is “a thin pancake folded or rolled around a filling as of cheese or fruit, and fried and baked.”11 A “knish,” from Jewish cookery, is “a fried or baked turnover or roll of dough with a filling, as of meat, kasha, or potato, often eaten as an appetizer or snack.”12 A “pierogi,” from Eastern European Cookery, “is a small dough envelope [a dumpling] filled with mashed potato, meat, cheese, or vegetables, crimped to seal the edge and then boiled or fried, typically served with sour cream or onions.”13 There is no evidence in the record to show how these ethnic foods are related to registrant’s sweet 11 The Random House Dictionary of the English Language (Unabridged), p. 223(2nd ed. 1987). 12 The Random House Dictionary of the English Language (Unabridged), p. 1062 (2nd ed. 1987). 13 Dictionary.com derived from the Random House Dictionary (2009). Serial No. 78584265 15 treats. In fact, none of the companies made of record, including those in the third-party registrations, that make salty snacks and/or sweet treats also make blintzes, knishes, or pierogies. The remaining third-party registration is registered for an ice cream cone mix and tortilla mix. There is nothing in the record explaining who buys those products and whether they would be purchased in the same channels of trade and by the same classes of consumers. In other words, there is nothing in the record regarding who would purchase an ice cream cone or tortilla mix presumably to make their own ice cream cones and tortillas. As with blintzes, knishes and pierogies, none of the companies made of record, including those in the third-party registrations, that make salty snacks and/or sweet treats also make ice cream cone and tortilla mix. In any event, two third-party registrations for the term GOLDEN GOURMET does not prove that the term GOLDEN GOURMET is so weak and diluted that applicant’s addition of the descriptive, or generic term, “snacks” is sufficient to distinguish the marks when they are used in connection with related products. Moreover, three third-party registrations owned by two different entities does not, in our view, justify the registration of another confusingly Serial No. 78584265 16 similar mark. AMF Inc. v. American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); Plus Products v. Star-Kist Foods, Inc., 220 USPQ 541, 544 (TTAB 1983). However, even if we were to concede that GOLDEN GOURMET is a weak mark, it is well established that even the owner of a weak mark is entitled to be protected from a likelihood of confusion with another’s use of the same or confusingly similar mark. Giant Foods, Inc. v. Ross and Mastracco, Inc., 218 USPQ 521, 526 (TTAB 1982). Furthermore, the three third-party registrations for the term GOURMET GOLD does not persuade us that the term GOLDEN GOURMET is weak and diluted. The term GOURMET GOLD engenders a different commercial impression than the term GOLDEN GOURMET. The term GOLDEN GOURMET creates the impression of a highly respected connoisseur of fine foods. On the other hand, GOURMET GOLD creates the impression of a connoisseur’s highly regarded product. In addition, the GOURMET GOLD marks are used to identify products even further removed from the goods at issue than the third- party registrations for GOLDEN GOURMET. In view of the foregoing, we find that applicant’s mark GOLDEN GOURMET SNACKS is similar to registrant’s mark GOLDEN GOURMET. Serial No. 78584265 17 E. Balancing the du Pont factors. In view of the facts that the marks are similar, the goods are related, the goods move in the same channels of trade and are available to the same classes of consumers, we find that applicant’s registration of the mark GOLDEN GOURMET SNACKS for fried pork rinds, corn chips and tortilla chips is likely to cause confusion with the mark GOLDEN GOURMET for “confectionary treats, namely, sweetened popcorn, nuts and pretzels.” Decision: The refusal to register is affirmed.