Panache LLC

Trademark Trial and Appeal Board

Feb 20, 2018

No. 87182253 (T.T.A.B. Feb. 20, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: February 20, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Panache LLC
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Serial No. 87182253
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Tye Biasco of Patterson Thuente Pedersen, P.A.,
for Panache LLC.
Kelley L. Wells, Trademark Examining Attorney, Law Office 118,
Michael W. Baird, Managing Attorney.
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Before Zervas, Bergsman and Heasley,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Panache LLC (“Applicant”) seeks registration on the Principal Register of the
mark PANACHE (in standard characters) for, inter alia, “apple butter; apple purée;
processed apples,” in Class 29.1

1 Application Serial No. 87182253 was filed on September 24, 2016, in Classes 29, 30, 32 and
33. The Trademark Examining Attorney limited the refusal to register Applicant’s mark to
the goods in Class 29. Applicant filed to register its mark in Class 29 under Section 1(a) of
the Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere
on October 15, 2015 and first use in commerce on November 9, 2015.
Serial No. 87182253
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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 that
Applicant’s mark so resembles the registered mark MANGO MANGO MANGO
PRESERVES A PANACHE PARTY PRESERVE and design for “fruit preserves,” in
Class 29, as to be likely to cause confusion.2 Registrant’s mark is reproduced below:

The registration includes the following description of the mark:
The color(s) orange, green and black is/are claimed as a
feature of the mark. The mark consists of the words “mango
mango” in orange lettering with the “o” in the first mango
depicted as a stylized orange-colored mango with a green
leaf and outlined in black. An orange bar displayed
immediately below contains the words “Mango Preserves”
“A Panache PARTY Preserve” all in black lettering with a
vertical black bar between the words “Preserves” and “A”.
Registrant disclaimed the exclusive right to use the terms “Mango” and “Mango
Preserves.”
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We reverse the refusal to register.

2 Registration No. 4550628, registered on June 17, 2014.
Serial No. 87182253
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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 issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973) (“du Pont”) (cited in B&B Hardware, Inc. v. Hargis
Indus., Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each du Pont 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.”). In any likelihood of
confusion analysis, two key considerations are the similarities between the marks
and the similarities between the goods or services. See In re Chatam Int’l Inc., 380
F.2d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); 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.”); see also In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus … on dispositive factors, such as similarity of the marks and
relatedness of the goods’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d
1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
Serial No. 87182253
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I. The similarity or dissimilarity of the goods and established, likely-to-
continue channels of trade.
As noted above, Applicant is seeking to register its mark for apple butter, apple
purée, and processed apples, and the goods in the cited registration are fruit
preserves.
“Preserves” are defined, inter alia, as “food made with fruit preserved in sugar,
such as jam or marmalade.”3 “Jam” is “a preserve of whole fruit, slightly crushed,
boiled with sugar.”4 “Marmalade” is “a jellylike preserve in which small pieces of fruit
and fruit rind, as of oranges or lemons, are suspended.”5
“Apple butter” is defined as “a thick brown spread made by cooking apples sugar
and spices usually in cider.”6
“Puree” is defined as “a paste or thick liquid suspension usually made from cooked
food ground finely.”7
Applicant’s use of the term “processed apples” is broad enough to encompass
Registrant’s “fruit preserves” because fruit includes apples, and preserves are

3 Oxford Living Dictionaries (oxforddictionaries.com) attached to the April 13, 2017 Office
Action (TSDR 6). References to the TSDR database are to the .pdf version.
4 Dictionary.com based on the Random House Dictionary (2018). 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); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d
1031, 1038 n.14 (TTAB 2010).
5 Dictionary.com based on the Random House Dictionary.
6 Merriam-Webster Online Dictionary (merriam-webster.com) attached to the April 13, 2017
Office Action (TSDR 10-11).
7 Merriam-Webster Online Dictionary (merriam-webster.com) attached to the April 13, 2017
Office Action (TSDR 17-18).
Serial No. 87182253
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processed fruit. See In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137
(TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily
encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”). In addition, since apple butter is a spread and preserves, including jam
and marmalade, commonly are used as spreads, apple butter and fruit preserves are
related products.
The Trademark Examining Attorney submitted excerpts from McCutcheon’s
Apple Products, Inc. (shop.mccutcheons.com),8 King Arthur Flour Company
(kingarthurflour.com) advertising Blake Hill Preserves,9 Dickinson’s
(dickinsonsfamily.com),10 and Dillman Farm (dillmanfarm.com)11 websites showing
that the same entities sell apple butter and preserves under the same mark.
The above-noted websites also provide online sales of their products. Thus,
Applicant’s apple butter, apple purée, and processed apples and Registrant’s fruit
preserves are offered in at least one similar channel of trade.
Applicant did not address the similarity or dissimilarity of the goods or channels
of trade in its brief.
We find the goods are in part identical and that they are offered in the same
channels of trade.

8 April 13, 2017 Office Action (TSDR 28-31).
9 April 13, 2017 Office Action (TSDR 34-35).
10 April 13, 2017 Office Action (TSDR 36-43).
11 April 13, 2017 Office Action (TSDR 44-48).
Serial No. 87182253
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II. The similarity or dissimilarity of the marks.
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. du Pont, 177 USPQ at 567. “Similarity in any one of
these elements may be sufficient to find the marks confusingly similar.” In re Davia,
110 USPQ2d 1810, 1812 (TTAB 2014).
In comparing the marks, we are mindful that “[t]he 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.” Coach Servs. Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(quotation omitted); see also San Fernando Elec. Mfg. Co. v. JFD Elec. Components
Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Rests. Inc. v. Morrison Inc.,
23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The
proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem.
Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon,
102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975). Because the goods at issue -- apple butter, apple purée,
processed apples, and fruit preserves -- all are spreads that any person could use for
bread or toast, the average customer for these products is an ordinary consumer.
Serial No. 87182253
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Applicant’s mark PANACHE is not similar to Registrant’s mark MANGO
MANGO MANGO PRESERVES A PANACHE PARTY PRESERVE and design
because the term “MANGO MANGO” with a mango design is the dominant element
of Registrant’s mark. They are by far the largest elements of Registrant’s mark and
most likely to catch consumers’ eyes. As such, they are that part of the mark
consumers use to call for Registrant’s preserves. It stretches credulity that consumers
would refer to Registrant’s preserves as “A Panache Party Preserve” or “panache”.
There is nothing improper in stating that, for rational reasons, more or less weight
has been given to a particular feature of a mark, such as a common dominant element,
provided the ultimate conclusion rests on a consideration of the marks in their
entireties. See In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985).
“Mango Preserves” is name of the product and, therefore, has little or no source
indicating function. It is well-settled that disclaimed, descriptive matter may have
less significance in likelihood of confusion determinations. See Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding
descriptive terms, this court has noted that the ‘descriptive component of a mark may
be given little weight in reaching a conclusion on the likelihood of confusion.’”)
(quoting In re Nat’l Data Corp., 224 USPQ at 752)); In re Dixie Rests. Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997).
The term “A Panache Party Preserve” is an advertising tagline informing
consumers that Registrant’s MANGO MANGO preserves are high quality products.
Serial No. 87182253
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The word “Panache” is defined as “a grand or flamboyant manner; verve; style; flair:
The actor who would play Cyrano must have panache.”12 The Trademark Examining
Attorney argues that “Panache” is the dominant part of Registrant’s mark because
the phrase “A Panache Party Preserve” “gives the general impression of being a house
mark.”13 However, the Trademark Examining Attorney submitted an excerpt from
Registrant’s website that offers no support for the Examining Attorney’s contention
because Registrant refers to itself as MANGO MANGO, not as a “Panache” company.
The excerpt from Registrant’s website is reproduced below:14

Another excerpt from Registrant’s website is reproduced below and it shows
Registrant using “Panache” to convey its dictionary meaning as part of an advertising
tagline rather than as a source indicator in and of itself: 15

12 Dictionary.com based on the Random House Dictionary (2018).
13 Trademark Examining Attorney’s Brief (9 TTABVUE 3-4).
14 April 13, 2017 Office Action (TSDR 50).
15 July 13, 2017 Office Action (TSDR 49).
Serial No. 87182253
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The commercial impression conveyed by Registrant’s website is that Registrant’s
preserves are so delicious and versatile that they are a party in a jar. Thus, the
advertising tagline in Registrant’s mark, “A Panache Party Preserve,” creates the
commercial impression that Registrant’s preserves have flair or style. In other words,.
The facts in this appeal are similar to the facts in In re Covalinski, 113 USPQ2d
1166, 1168 (TTAB 2014) and In re White Rock Distilleries Inc., 92 USPQ2d 1282
(TTAB 2009). In Covalinski, the USPTO refused to register the mark REDNECK
RACEGIRL and design for clothing on the ground that it was likely to cause confusion
with the registered mark RACEGIRL (standard characters) for clothing. The mark
REDNECK RACEGIRL and design is reproduced below:
Serial No. 87182253
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The Board found that the commercial impression of REDNECK RACEGIRL and
design was “dominated by its design features, particularly the double-letter RR
configuration” which distinguished the two marks. 113 USPQ2d at 1169.
In White Rock, the USPTO refused to register VOLTA (standard characters) for
“energy vodka infused with caffeine” on the ground that it was likely to cause
confusion with the registered mark TERZA VOLTA and design for “wines.” The
registered mark TERZA VOLTA and design is reproduced below:

The Board found that the prominent design feature and the term TERZA
distinguished the registered mark from Applicant’s mark VOLTA. 92 USPQ2d at
1284. Here, as there, the prominent use of MANGO MANGO and the mango design
distinguish the marks.
We find that the marks are not similar.
Serial No. 87182253
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III. Balancing the factors.
Even though the goods are in part identical and are offered in the same channels
of trade, Applicant’s mark is so different from the registered mark that even when
used on closely related goods, confusion is not likely. The first du Pont factor, the
differences between the marks, outweighs the other factors. See Champagne Louis
Roederer S.A. v. Delicato Vineyards, 148 F.3d 1373, 47 USPQ2d 1459, 1460-61 (Fed.
Cir. 1998) (Federal Circuit affirmed Board finding of no likelihood of confusion
between mark CRYSTAL CREEK for wine and marks CRISTAL for wine and
CRISTAL CHAMPAGNE for champagne, where Board relied solely on dissimilarity
of marks); Kellogg Co. v. Pack’em Enterprises Inc., 951 F.2d 330, 21 USPQ2d 1142,
1145 (Fed. Cir. 1991) (“We know of no reason why, in a particular case, a single du
Pont factor may not be dispositive”). In view thereof, we find that Applicant’s mark
PANACHE for “apple butter; apple purée; processed apples” is not likely to cause
confusion with the registered mark MANGO MANGO MANGO PRESERVES A
PANACHE PARTY PRESERVE and design for “fruit preserves.”
Decision: The refusal to register Applicant’s mark PANACHE is reversed.