Nunn Milling Company, Inc.

Trademark Trial and Appeal Board

Nov 15, 2019

87622839 (T.T.A.B. Nov. 15, 2019)

Oral Hearing: November 13, 2019 Mailed: November 15, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board
————
In re Nunn Milling Company, Inc.
————
Serial No. 87622839
————
Timothy D. Pescenye, Bradford C. Craig, and Samar Aryani-Sabet of Blank Rome
LLP, for Nunn Milling Company, Inc.

Robert N. Guliano, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
————
Before Wolfson, Adlin, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Nunn Milling Company, Inc. (“Applicant”) seeks registration on the Principal
Register of the standard character mark MERIDIAN for “pet food” in International
Class 31.1

1 Application Serial No. 87622839, filed on September 26, 2017, initially based on a claim of
Applicant’s bona fide intention to use the mark in commerce pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b). Applicant filed an amendment to allege use in commerce
on August 7, 2018, claiming August 6, 2018 as both the date of first use and the date of first
use in commerce.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 87622839
2
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the composite mark
(ANIMAL HEALTH disclaimed) registered on the Principal Register for the following
goods in International Class 5:2
Veterinary health care preparations for animals, namely, liquid
bandage for dressings for use on pets; nutritional and dietary
supplements for animals, namely, nutritional supplements for pets to
prevent or treat dry skin, hot spots, sores, rashes, worms and other
parasites, joint pain, and arthritis; medicated preparations for relief of
skin irritations in pets, namely, dogs, cats and other companion animals;
medicated inflammation relief preparations for animals, namely, dogs,
cats and other companion animals; ear miticides for pets for domestic
use; anthelcides, namely, anthelmintics for pets; medicated grooming
preparations for cats, namely, cat hairball remedy; veterinary
medicated grooming preparations for pets, namely, antimicrobial
medicated shampoo; medicated breath deodorizers for pets; veterinary
medicated preparations for pets, namely, dogs, cats and other
companion animals for use in the treatment of acute moist dermatitis;
insect repellent and insecticide for use on animals; flea and tick control
products, namely, antiparasitic collars, sprays, shampoos, powders, and
medicated veterinary shampoos for puppies; veterinary medicated
powders, and veterinary medicated topical ointments for pets; flea and
tick control aerosol foggers for premise applications; carpet insecticides
and fresheners; pet odor neutralizer for use on carpets and upholstery;
animal maintenance products, namely, indoor/outdoor pet repellent for
use with dogs, cats and other companion animals.

2 Registration No. 4038786, registered on October 11, 2011; renewed. The description of the
mark reads as follows: “The mark consists of a stylized depiction of a globe to the left of the
term ‘meridian’ which is above the term ‘ANIMAL HEALTH.’” Color is not claimed as a
feature of the mark.
Serial No. 87622839
3
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. The appeal is fully briefed. An oral hearing was
held on November 13, 2019. We affirm the refusal to register.3
I. Preliminary Matter – Evidentiary Objection
We first turn to an evidentiary objection lodged by the Examining Attorney
regarding evidence submitted by Applicant with its Request for Reconsideration, as
well as its Appeal Brief.4 Specifically, the Examining Attorney objects to a list from
the USPTO Trademark Electronic Search System (TESS) database of third-party
registrations submitted by Applicant for the purported purpose of demonstrating that
only a very small percentage of third parties have registered the same mark for both
pet food and nutritional supplements for animals.
The submission of a mere list of registrations does not make the listed
registrations part of the record. See In re Peace Love World Live, LLC, 127 USPQ2d
1400, 1405 n.17 (TTAB 2018) (citing In re 1st USA Realty Prof’ls, 84 USPQ2d 1581,
1583 (TTAB 2007); In re Duofold Inc., 184 USPQ 638, 640 (TTAB 1974)); TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) §1208.02 (2019);
TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) §710.03 (October 2018). To
make third party registrations part of the record, an applicant must submit copies of

3 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents.
4 Examining Attorney’s Brief, p. 13, 20 TTABVUE 14.
Serial No. 87622839
4
the registrations, or the complete electronic equivalent from the USPTO’s automated
systems, prior to appeal. In re Star Belly Stitcher, Inc., 107 USPQ2d 2059, 2064
(TTAB 2013); TBMP §1208.02; TMEP §710.03. Because Applicant failed to submit
copies of the registrations identified in the list it provided, we sustain the Examining
Attorney’s objection solely to the extent that we do not consider the registrations
themselves. That being said, however, we will give the search results whatever
probative value they have, if any, as discussed more fully later in this decision.
II. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the factors bearing on the issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“DuPont”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each DuPont factor that is
relevant or for which there is evidence of record. See M2 Software, Inc. v. M2
Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); 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.”). “[E]ach case must be decided on its own facts
and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d
1197, 177 USPQ 386, 387 (CCPA 1973) (internal citations removed).
A. Similarity of the Marks
We initially consider the first DuPont factor focusing on the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation
Serial No. 87622839
5
and commercial impression. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)
(quoting DuPont, 177 USPQ at 567). “The proper test is not a side-by-side comparison
of the marks, but instead whether the marks are sufficiently similar in terms of their
commercial impression such that persons who encounter the marks would be likely
to assume a connection between the parties.” 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)) (internal
quotation marks omitted).
Applicant’s mark is MERIDIAN in standard characters. The cited mark is
. When considered in their entireties, we find
Applicant’s standard character mark MERIDIAN and Registrant’s mark to be very
similar in appearance, sound, connotation and commercial impression, due to the
shared term MERIDIAN. Registrant’s mark incorporates the entirety of Applicant’s
mark, and Registrant’s mark also includes the generic or at best merely descriptive
phrase ANIMAL HEALTH. While there is no rule that a likelihood of confusion is
present where one mark encompasses another, in this case, as in many others, the
fact that Registrant’s mark includes the entirety of Applicant’s MERIDIAN mark
increases the similarity between them. See, e.g., In re Mighty Leaf Tea, 601 F.3d 1342,
94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (finding applicant mark ML similar to
registrant’s mark ML MARK LEES).
Serial No. 87622839
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There is no evidence that MERIDIAN has any meaning or significance when
applied to the identified goods, and there is no evidence of use by third parties of
similar marks on similar goods that might dilute the source-identifying capacity of
MERIDIAN for those goods. Moreover, to the extent the term MERIDIAN does have
any meaning with regard to the involved goods, there is no evidence of record to
support a finding that the term would have a different meaning as applied to
Applicant’s goods than it would when applied to the goods identified in the cited
registration. On the other hand, the wording ANIMAL HEALTH in Registrant’s mark
is at least highly descriptive, if not generic, of the goods identified in the
corresponding registration, and has been appropriately disclaimed. See In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997). Descriptive
matter typically is less significant or less dominant when comparing marks. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir.
1985) (the “descriptive component of a mark may be given little weight in reaching a
conclusion on likelihood of confusion”)). We find that to be the case here, where
consumers likely will view the phrase ANIMAL HEALTH in Registrant’s mark in its
descriptive or generic sense, rather than as a source-distinguishing element.
MERIDIAN is the central and most visually prominent element in Registrant’s
mark, and it is the element that is most likely to catch consumers’ attention.
MERIDIAN also has more source-identifying capability than the design element
incorporated in Registrant’s mark, which would be viewed merely as a decorative
Serial No. 87622839
7
element and would not be verbalized by consumers when calling for the goods. In re
I-Coat Co., LLC, 126 USPQ2d 1730, 1736 (TTAB 2018) (“It further is settled that in
a mark consisting of wording and a design, the design tends to make a less significant
contribution to the mark’s overall commercial impression.”). To the extent consumers
recognize the design element as a globe, the design underscores the significance of
the term “MERIDIAN,” meaning the “circle or half circle numbered for longitude on
a map or globe.”5 The significance of the term MERIDIAN is further enhanced by its
location as the initial literal element in Registrant’s mark, see Palm Bay Imps. Inc.,
73 USPQ2d at 1692 (“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), as well as its appearance in larger font than the rest of the wording in
the mark.
Accordingly, we find that MERIDIAN is the dominant element in Registrant’s
mark, and accord that term more weight than the other elements of Registrant’s mark
in our likelihood of confusion analysis. In making this finding, we do not ignore the
presence of the additional wording, stylization or design element in Registrant’s
mark. However, for the reasons discussed above, consumers are more likely to

5 At https://www.merriam-webster.com/dictionary/meridian?utm_campaign=sd&utm_me-
dium=serp&utm_source=jsonld, accessed November 14, 2019. The Board may take judicial
notice of dictionary definitions, including online dictionaries that exist in printed format or
regular fixed editions. Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ
594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re S. Malhotra &
Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018).
Serial No. 87622839
8
remember the term MERIDIAN than the other elements of Registrant’s mark. Nat’l
Data, 224 USPQ at 751.
While there are some specific differences between Applicant’s and Registrant’s
marks, we find that in their entireties, the marks are very similar in appearance,
sound, and connotation due to the common presence of the identical literal term
MERIDIAN, and that the marks convey similar commercial impressions. The first
DuPont factor thus favors a finding of likelihood of confusion.
B. Relatedness of the Goods
We next turn to the comparison of the goods, the second DuPont factor. In making
our determination regarding the relatedness of the goods, we must look to the goods
as identified in Applicant’s application and the cited registration. See Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162
(Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput. Servs. 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 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.”)); see also In
re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). It is well-settled that the
goods need not be identical or competitive to support a holding of likelihood of
confusion. It is sufficient that the respective goods are related in some manner, 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
Serial No. 87622839
9
that could, because of the similarity of the marks, give rise to the mistaken belief that
they originate from the same source. See Coach Servs. Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (citation omitted); Hilson
Research, Inc. v. Soc’y for Human Res. Mgmt., 27 USPQ2d 1423, 1432 (TTAB 1993).
The issue here, of course, is not whether consumers would confuse the goods, but
rather whether there is a likelihood of confusion as to the source of these goods.
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223
USPQ 830, 831 (TTAB 1984).
Applicant’s identified goods are “pet food.” In support of his refusal, the Examining
Attorney focuses on the following goods identified in the cited registration:
“nutritional and dietary supplements for animals, namely, nutritional supplements
for pets to prevent or treat dry skin, hot spots, sores, rashes, worms and other
parasites, joint pain, and arthritis.” Although the Examining Attorney has limited
his analysis to some of the goods identified in the cited registration, it is well
established that registration may be refused when there is a likelihood of confusion
of applicant’s mark for any of the goods in a particular class. See Tuxedo Monopoly,
Inc. v. General Mills Fun Group, Inc., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)
(likelihood of confusion must be found if there is likely to be confusion with respect to
any items that come within the identification of goods in the application [or cited
registration]). That is to say, registration is refused for the entire class when there is
a likelihood of confusion with any of the goods in that class.
To demonstrate that Applicant’s and Registrant’s goods are related, the
Serial No. 87622839
10
Examining Attorney submitted extensive Internet evidence showing that it is
common for a single entity to provide both nutritional and/or dietary supplements for
animals and pet food under the same mark. See In re Detroit Ath. Co., 903 F.3d 1297,
128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (relatedness supported by evidence that
third parties sell both types of goods under the same mark, showing that “consumers
are accustomed to seeing a single mark associated with a source that sells both”). For
example:
• www.petag.com – selling both pet treats and animal nutritional
supplements under the same mark;6

• www.drharveys.com – selling both pet food and animal nutritional

6 January 3, 2018 Office Action, TSDR, pp. 14-18.
Serial No. 87622839
11
supplements for joint health under the same mark;7

• www.arknaturals.com – selling both pet food in the form of pet chews and
animal nutritional supplements for joint health under the same

7 Id., TSDR pp. 19-21; July 19, 2018 Final Office Action, TSDR p. 162.
Serial No. 87622839
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mark;8

• www.petwellbeing.com - selling both pet food and animal nutritional
supplements for joint health under the same
mark;9

8 July 19, 2018 Final Office Action, TSDR pp. 164-170.
9 Id., TSDR pp. 225-229.
Serial No. 87622839
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• www.pawtree.com - selling both pet food and animal nutritional
supplements for joint health under the same mark;10

• www.annamaet.com - selling both pet food and animal nutritional
supplements for joint health under the same mark;11

10 Id., TSDR pp. 178-184.
11 Id., TSDR pp. 163 and 185-86.
Serial No. 87622839
14

• www.petsmart.com- online pet products retailer selling a third-party’s pet
food and animal nutritional supplements in the form of soft chews for hip
and joint health under the same AUTHORITY mark;12

12 February 14, 2019 Denial of Request for Reconsideration, TSDR pp. 105-109.
Serial No. 87622839
15
• www.earthanimal.com – selling both pet food and animal nutritional
supplements under the same mark;13

• www.wysong.net – selling both pet food and animal nutritional
supplements under the same mark;14

13 Id., TSDR pp. 9-10 and 35-45.
14 July 19, 2018 Office Action, TSDR pp. 217-18.
Serial No. 87622839
16
•

• www.healthydogma.com – selling both pet food and animal nutritional
supplements under the same mark;15

15 February 14, 2019 Denial of Request for Reconsideration, TSDR pp. 28-32.
Serial No. 87622839
17
• www.kineticdogfood.com – selling both pet food and animal nutritional
supplements under the same ;16

• www.viandpet.com – selling both pet food and animal nutritional
supplements under the same stylized VIAND mark;17

• www.jeffreyspets.com – selling both pet food and animal nutritional

16 Id., TSDR pp. 49-52.
17 Id., TSDR pp. 53-61.
Serial No. 87622839
18
supplements for joint support under the same mark;18

• www.onlynaturalpet.com – selling both pet food and animal nutritional
supplements for joint support under the same mark;19

18 Id., TSDR pp. 62-64.
19 Id., TSDR pp. 102-104.
Serial No. 87622839
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• www.thehonestkitchen.com – selling both pet food and animal nutritional
supplements for digestion under the same mark;20

• www.solidgoldpet.com – selling both pet food and animal nutritional
supplements for joint health under the same stylized SOLID GOLD mark;21
and

20 Id., TSDR pp. 69-78.
21 Id., TSDR pp. 85-87.
Serial No. 87622839
20
• www.lifesabundance.com – selling both pet food and animal nutritional
supplements for joint health under the same mark.22

In further support of the refusal, the Examining Attorney made of record over fifty
third-party, use-based registrations, each identifying, under a single mark, goods
that are identical or very similar to Applicant’s and Registrant’s identified goods.23
Although such registrations are not evidence that the marks shown therein are in
use or that the public is familiar with them, they nonetheless have probative value
to the extent that they serve to suggest that the goods listed therein are of a kind
which may emanate from a single source under a single mark. See In re Albert Trostel
& Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). A representative sample of the
third-party registrations is listed below:

22 Id., TSDR pp. 92-97.
23 July 19, 2018 Final Office Action, TSDR pp. 10-161.
Serial No. 87622839
21
Reg. No. Mark Relevant Goods
5503977

“Dietary supplements for
pets” and “pet food.”
5487823 TECMAX “Dietary supplements for
animals” and “pet food.”
5515307

“Dietary supplements for
pets” and “pet food.”
5509949

“Nutritional supplements
for pets” and “pet food.”
4120005 ARK NATURALS “Pet products, namely,
pet food supplements,
nutritional supplements,
vitamin and mineral
supplements” and “pet
food.”
4104313 HIP BONES “Animal nutraceuticals
for use as a dietary
supplement” and “pet
food.”
4350692 DYNAMO DOG “Nutritional supplements
for pets” and “pet food.”
4621669 pawTree “Dietary supplements for
pets” and “pet food.”
4440294 BRAIN’S BEST FRIEND “Nutritional supplements
and vitamins for pets;
Nutritional supplements
for pets in the nature of
pet treats; dietary and
nutritional supplements
in the nature of pet treats
used for weight control
for pets; dietary
supplements for pets in
the nature of pet treats”
and “Pet food products,
namely, edible pet treats,
pet food, pet snacks,
Serial No. 87622839
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Reg. No. Mark Relevant Goods
edible pet treats in the
nature of pet snacks.”
4440295 OLD DOGS! HAPPY
JOINTS!
“Nutritional supplements
and vitamins for pets;
Nutritional supplements
for pets in the nature of
pet treats; dietary and
nutritional supplements
in the nature of pet treats
used for weight control
for pets; dietary
supplements for pets in
the nature of pet treats”
and “Pet food products,
namely, edible pet treats,
pet food, pet snacks,
edible pet treats in the
nature of pet snacks.”
4672864 MAKE GOOD HAPPEN “Dietary supplements for
animals” and “pet food”
4796022 KRILLEX “Vitamin and dietary
supplements for cats and
dogs” and “pet food.”
4732796 LICKS PILL FREE “Dietary supplements for
pets” and “pet food.”
4769699 THE PILL-FREE
SOLUTION TO PET
HEALTH
“Dietary supplements for
pets” and “pet food.”
4732797 LICKS “Dietary supplements for
pets” and “pet food.”

Applicant attempts to diminish the probative value of the Internet evidence
submitted by the Examining Attorney by contending that several of the submissions
demonstrate use of a single mark in connection with “pet treats” which Applicant
maintains is not “pet food.”24 The evidence of record, however, belies Applicant’s

24 Applicant’s Appeal Brief, pp. 6-7, 17 TTABVUE 10-11.
Serial No. 87622839
23
argument. The record demonstrates that “pet treats” are considered a subset of “pet
food.”25
Applicant also argues that many of the Internet submissions include both a house
mark and a distinct product mark for the particular goods.26 Applicant maintains
that the Examining Attorney’s focus on a company’s house mark as the primary
source indicator for the goods is not the proper analysis where, as here, the goods are
offered under clearly distinct product marks affixed to the respective products.27
Applicant contends that the house marks identified in the Examining Attorney’s
Internet evidence are the equivalent of a Walmart or Target house mark for pet
products and do not function as a source indicator for the particular goods.28
We are not persuaded by Applicant’s argument. The Board has explained what a
house mark is as follows:
It is well established that a product can bear more than one trademark,
that each trademark may perform a different function for consumers and
recipients of the product, and that each can be registered providing the
mark as used, creates a separate and distinct impression in and of itself
and serves to identify and distinguish the product as it is encountered by
consumers in the normal marketing milieu for such goods…The usual

25 February 14, 2019 Denial of Request for Reconsideration, TSDR p. 114. An article from the
Association of American Food Control Official’s website www.talkspetfood.aafco.org which
states that “[t]reat products are a subset of pet food that are not usually intended to be
a source of complete and balanced nutrition, but are primarily for rewarding pets.” (emphasis
added). Additionally, a Wikipedia submission of the definition of “pet food” states that “[p]et
food is a plant or animal material intended for consumption by pets.” See id. at TSDR pp.
115-117. This definition is broad enough to clearly encompass “pet treats.” Finally, evidence
from the West Virginia Department of Agriculture’s regulatory website states that “[p]et
food includes treats, biscuits, training foods, sample sizes as well as traditional pet foods.”
(emphasis added). See id., TSDR pp. 111-12.
26 Applicant’s Reply Brief, pp. 1-2, 21 TTABVUE 3-4.
27 Id. at p. 2, 21 TTABVUE 4.
28 Id.
Serial No. 87622839
24
situation in which this principle has normally been applied…involves a
house mark which normally serves to identify the source of the product,
per se, and a product mark which serves to identify a particular product
within a line of merchandise normally associated with and distinguished
by the house mark. That is, a house mark serves as an umbrella for all
of the product marks and merchandise emanating from a single source.

Amica Mutual Insurance Co., v. R. H. Cosmetics Corp., 204 USPQ 155, 161 (TTAB
1979).
Thus, a house mark can function as a source indicator, including when the
evidence shows that it serves as a mark for a number of an entity’s products, as the
evidence of record in this case demonstrates. Moreover, unlike Target and Walmart
that offer a wide variety of diverse consumers goods under their respective house
marks, the house marks identified in the Examining Attorney’s Internet evidence are
for businesses that sell only pet products. As such, we find that the house marks
appearing on the pet products do function as source indicators, notwithstanding that
other product marks also appear on the product’s packaging.
Finally, Applicant submits that an objective review of the Office’s online records
reveals that pet food and nutritional supplements for animals are rarely offered
under the same mark.29 Specifically, Applicant contends that of the 4,260 live, use-
based registrations covering pet food in Class 31 and/or nutritional supplements for
animals or pets in Class 5, less than 1% (42 total) include both pet food and
nutritional supplements for animals or pets. To support this contention, Applicant
submitted the TESS search results consisting of a mere list of these 42 third-party

29 Applicant’s Appeal Brief, p. 11, 17 TTABVUE 15.
Serial No. 87622839
25
registrations.
The Examining Attorney argues that to the extent the Board considers these
search results, they have little to no probative value.30 Specifically, the Examining
Attorney maintains that Applicant’s search of live, use-based third-party
registrations is flawed in the following aspects: (1) it fails to contemplate identical
marks from the same source that filed separate applications in International Classes
5 and 31; and (2) its search algorithm leaves out several possible descriptions of goods
that are legally identical to the goods listed by Applicant and Registrant.31
To the latter point, the Examining Attorney contends that the search only looks
at “pet food” in Class 31.32 In view thereof, the Examining Attorney maintains that
this search fails to capture relevant and legally identical descriptions such as “animal
food,” “pet foods,” “food for pets,” “foodstuffs for animals,” “foodstuffs for pets,” “dog
food,” “cat food,” “animal feed,” “pet feed,” “pet treats,” “animal treats,” “pet biscuits,”
“dog biscuits,” “pet chews,” and numerous other entries that are within the scope of
the “pet food” identified by Applicant.33 Similarly, the Examining Attorney maintains
that Applicant’s search of “nutritional supplements” and “animals or pets” in Class 5
fails to reveal relevant and legally identical descriptions like “dietary supplements
for animals,” “nutritional supplements for animal consumption,” “nutritional
supplements for pet consumption,” “animal nutritional supplements,” “nutritional

30 Examining Attorney’s Brief, p. 14, 20 TTABVUE 15.
31 Id.
32 Id.
33 Id.
Serial No. 87622839
26
food supplements for pets,” “supplements for animals in the nature of…,” “nutritional
supplements for dogs,” “nutritional supplements for cats,” “nutritional supplement
for the treatment of….in pets,” “vitamin supplements for animals,” and several other
entries that are within the scope of the goods listed by Registrant.34
We agree with the Examining Attorney’s observations regarding Applicant’s
search strategy. We find that the search results have not captured all possible and
relevant registrations and, therefore, the search results have limited or no probative
value in our analysis.
Based on the aggregate of the Internet and third-party registration evidence of
record, we find that Applicant’s “pet food” and Registrant’s nutritional and dietary
supplements for animals are related goods for likelihood of confusion purposes
because such goods are offered under the same marks by the same entities.
Accordingly, the second DuPont factor also favors a finding of likelihood of confusion.
C. Similarity of Trade Channels and Classes of Purchasers
Next we consider established, likely-to-continue channels of trade, the third
DuPont factor. Because the identifications of Applicant’s and Registrant’s goods have
no restrictions as to channels of trade or classes of customers, we must presume that
the identified goods travel through all normal and usual trade channels for such
goods, and that they are sold to all classes of prospective purchasers for those goods.
Stone Lion, 110 USPQ2d at 1161; see also Coach Servs., 101 USPQ2d at 1723 (absent
limitation, “goods are presumed to travel in all normal channels ... for the relevant

34 Id.
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goods.”).
Applicant attempts to restrict the trade channels and classes of purchasers of
Registrant’s goods by submitting extrinsic evidence. Specifically, Applicant
submitted Registrant’s response to an office action during the prosecution of its cited
registration wherein Registrant indicated that it entered into a consent agreement
with a third party and stated that it marketed and sold its goods only to
veterinarians.35 Applicant maintains that Registrant’s response constitutes an
admission that that Registrant’s goods are only sold to veterinarians.36 During the
oral hearing, Applicant’s counsel argued that Registrant’s statements in its response
to an office action constitutes prosecution estoppel. In other words, Applicant
maintains that Registrant has conceded that its goods are sold only to veterinarians.
In Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671,
1675 (Fed. Cir. 2015), the Federal Circuit addressed the probity of statements made
in the course of prosecuting an application:
Although estoppel based on prosecution of an application has played a
more limited role for trademarks than for patents, we have recognized
that such comments [made in prosecuting an application] have
significance as “facts ‘illuminative of shade and tone in the total picture
confronting the decision maker[.]”’ (citations omitted.)

Even if we were to consider Registrant’s statement that at the time it entered into
a consent agreement with the third-party owner of a different registration, its goods
were marketed and sold only to veterinarians, it adds little in terms of the “shade and

35 Applicant’s Appeal Brief, pp. 12-13, 17 TTABVUE 16-17; Applicant’s January 22, 2019
Request for Reconsideration, Exh. B, TSDR pp. 31-48.
36 Applicant’s Appeal Brief, p. 12, 17 TTABVUE 16.
Serial No. 87622839
28
tone in the total picture” because we must base our analysis regarding trade channels
and classes of purchasers on the identifications of goods in the involved application
and cited registration. Neither Applicant’s nor Registrant’s identification limits the
trade channels or classes of purchasers intended for their respective identified
goods.37 The Federal Circuit has recently reiterated this requirement in In re Detroit
Athletic Co., 903 F.3d 1297, 1307, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018) (citing In
re i.am.symbolic, llc, 123 USPQ2d at 1748 (“It is well established that the Board may
not read limitations into an unrestricted registration or application.”)). As such, the
parties’ goods would travel in all normal channels of trade for such goods which
include pet stores, online pet product retailers, and supermarkets. Moreover, the
classes of purchasers for such pet products would be the same, i.e., pet owners and
veterinarians. In any event, there is no way for us to know whether Registrant
continues to sell its goods only to veterinarians, even if its channels of trade were so
limited at the time of the office action response, and the cited registration confers
rights on Registrant which are not limited to veterinarians.
Thus, the third DuPont factor also weighs in favor of finding a likelihood of
confusion.
D. Sophistication of Consumers
Under the fourth DuPont factor, we consider “[t]he conditions under which and

37 While we acknowledge that many of the goods identified in the cited registration are
veterinarian products, the goods upon which the Examining Attorney bases his refusal are
not so limited.
Serial No. 87622839
29
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567.
Applicant contends, without any supporting evidence, that the sophistication of
Applicant’s consumers is such that consumer confusion is unlikely.38 With regard to
Registrant’s identified goods, Applicant once again impermissibly argues that
Registrant’s goods are marketed and sold only to veterinarians who are not casual
consumers and do not make purchasing decisions hastily; rather they are
exceptionally discriminatory and exercise a high degree of care in identifying safe,
reliable and effective products prior to purchasing such items.39 In support of its
arguments, Applicant submitted articles about potential harmful effects of
insecticides and flea and tick treatment products to posit that consumers of
Registrant’s goods use heightened scrutiny in purchasing these goods.40 Applicant’s
evidence, however, does not address consumers of nutritional and dietary
supplements for animals, and fails to provide evidence that purchasers are
particularly sophisticated when it comes to pet food. Even where the purchasers
consist of both professionals and the public, the standard of care for purchasing the
goods is that of the least sophisticated potential purchaser. In re FCA US LLC, 126
USPQ2d 1214, 1222 (TTAB 2018) (citing Stone Lion, 110 USPQ2d at 1163).
In this case, the evidence of record shows that pet food and dietary and nutritional

38 Applicant’s Appeal Brief, p. 13, 17 TTABVUE 17.
39 Id., pp. 13-14, 17 TTABVUE 17-18.
40 Applicant’s January 22, 2019 Request for Reconsideration, Exh. C, TSDR pp. 49-66.
Serial No. 87622839
30
supplements for animals are relatively low cost goods.41 Casual purchasers of low-
cost, every-day consumer items are generally more likely to be confused as to the
source of the goods. In re Davia, 110 USPQ2d 1810, 1818 (TTAB 2014) (citing
Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 672, 223 USPQ
1281, 1282 (Fed. Cir. 1984)).
Thus, the fourth DuPont factor is neutral.
E. Extent of Potential Confusion
Applicant next argues that the twelfth DuPont factor, the extent of potential
confusion, i.e., whether de minimis or substantial, is also a relevant consideration.
According to Applicant, any potential confusion would be de minimis because the
parties’ respective goods are unrelated and serve entirely different classes of
consumers, the trade channels are mutually exclusive, the relevant consumers are
sophisticated, and the marks at issue are distinct.42 We disagree. Because we have
found that the marks at issue are similar, that the parties’ respective goods are
related and are sold in the same or overlapping trade channels to the same or
overlapping consumers and since there is no evidence of record to substantiate that
the consumers of either Applicant’s or Registrant’s goods are sophisticated, the
potential for confusion cannot be deemed to be de minimis.
Accordingly, this DuPont factor is also neutral.

41 See generally July 19, 2018 Office Action, TSDR pp. 163-234 and February 14, 2019 Denial
of Request for Reconsideration, TSDR pp. 6-112.
42 Applicant’s Appeal Brief, p. 17, 17 TTABVUE 21.
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31
III. Conclusion
We have considered all of the arguments and evidence of record and all relevant
DuPont factors. We find that the marks at issue are similar and that Applicant’s “pet
food” and Registrant’s animal nutritional and dietary supplements for specific
purposes are related goods and that they would move in the same or overlapping
trade channels and are offered to the same class of purchasers. As such, we conclude
that Applicant’s mark, as used in connection with “pet food,” so resembles the cited
mark as to be likely to cause confusion or mistake, or to deceive under
Section 2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s MERIDIAN mark under Section 2(d)
of the Trademark Act is affirmed.