Protemach, Inc.

Trademark Trial and Appeal Board

Jul 29, 2014

No. 85665175 (T.T.A.B. Jul. 29, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 29, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Protemach, Inc.
_____

Serial No. 85665175
_____

Dariush G. Adli of Adli Law Group P.C.,
for Protemach, Inc.
Edward Nelson, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
_____

Before Quinn, Bergsman and Masiello,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Protemach, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark Almas (in standard characters) for
Food products, namely, sausages, cold cuts, meat,
chicken, chicken kabobs, shish kabobs, lamb kabobs,
ground meat kabobs, stews for consumption on or off the
premises, in International Class 29.1

1 Application Serial No. 85665175 was filed on June 29, 2012, based upon applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b). The application included the following translation
statement: “The English translation of ‘Almas’ in the mark is diamond.”
Serial No. 85665175
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The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the
ground that Applicant’s mark is likely to cause confusion with the mark ALMA’S
and design, shown below for “pastas,” in Class 30.2

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). 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,
however, 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.”).
I. Similarity or dissimilarity of the marks in their entireties as to appearance,
sound, connotation and commercial impression.
We first consider 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.” Palm Bay Imports Inc. v. Veuve Clicquot

2 Registration No. 1875449, issued January 24, 1995; renewed.
Serial No. 85665175
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Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005) (quoting du Pont, 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.” Coach
Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721
(Fed. Cir. 2012) (citation omitted).
Because the similarity or dissimilarity of the marks is determined on the basis of
the marks in their entireties, our analysis cannot be predicated on dissecting the
marks into their various components; that is, the decision must be based on the
entire marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co.,
667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark
should not be dissected and considered piecemeal; rather, it must be considered as a
whole in determining likelihood of confusion.”). On the other hand, 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 Nat’l Data, 224 USPQ at 751.
The focus is on the recollection of the average purchaser, who normally retains a
general rather than a specific impression of trademarks. Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013). In this case, since
Serial No. 85665175
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the goods at issue are food products, the average purchaser is an ordinary
consumer.
The mark in the cited registration is ALMA’S and design. In the case of marks
consisting of words and a design, the words are normally given greater weight
because they would be used by consumers to request the products. Joel Gott Wines,
LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d at 1431 (citing In re Dakin’s
Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999)). See also In re Viterra Inc.,
671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908, 1911 (Fed. Cir. 2012) (citing CBS
Inc. v. Morrow, 708 F. 2d 1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir 1983));
Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798
(Fed. Cir. 1987); Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d 1565, 218
USPQ 390 (Fed. Cir. 1983). We find that the name Alma’s is the dominant element
of the registered mark.
Because Applicant’s mark Almas is in standard character form, it may be
presented in any style. Marks presented in standard characters are not limited to
any particular depiction. The rights associated with a mark in standard characters
reside in the wording and not in any particular display. In re Viterra Inc., 101
USPQ2d at 1909-11; Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939
(Fed. Cir. 1983); In re RSI Systems, LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re
Pollio Dairy Products Corp., 8 USPQ2d 2012, 2015 (TTAB 1988). Thus, Applicant’s
mark could be displayed in a lettering style that resembles that of the registered
mark.
Serial No. 85665175
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The apostrophe before the “s” in the cited registration, if it is even noticed by
consumers, has little, if any, trademark significance and does not otherwise affect
the overall similarity of the marks in terms of commercial impression. See In re
Binion, 93 USPQ2d 1531, 1534 (TTAB 2009) (noting that “[t]he absence of the
possessive form in applicant’s mark … has little, if any, significance for consumers
in distinguishing it from the cited mark”); In re Curtice-Burns, Inc., 231 USPQ 990,
992 (TTAB 1986) (finding the marks McKENZIE’S and McKENZIE “virtually
identical in commercial impression”); Winn’s Stores, Inc. v. Hi-Lo, Inc., 203 USPQ
140, 143 (TTAB 1979) (noting that “little if any trademark significance can be
attributed to the apostrophe and the letter ‘s’ in opposer’s mark”).
Although there is no correct way to pronounce a mark, we find that the marks
Almas and ALMA’S likely will be pronounced the same by the ordinary American
consumer.
Applicant argues that the marks have different meanings because Almas means
diamond in Persian, Turkish, Arabic, Ordu and Russian, while “Alma” in Spanish
means spirit.3 See also the Wikipedia entry for Alma attached to the May 20, 2013
Office action (Alma is a given name “generally translated to mean the child ‘feed’s
one’s soul’ or ‘lifts the spirit.’”). While the segment of the American purchasing
public that understands Persian, Turkish, Arabic, Ordu and Russian may recognize
the difference between Almas and ALMA’S, the remainder of the American
consuming public likely will perceive those names as being virtually the same.

3 April 25, 2013 response to Office action.
Serial No. 85665175
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In view of the foregoing, we find that the marks Almas and ALMA’S and design
are similar in their entireties as to appearance, sound, connotation and commercial
impression.
II. Similarity or dissimilarity and nature of the goods.
We turn next to the second du Pont factor, the similarity of the goods. It is not
necessary that the goods be identical or even competitive to support a finding of
likelihood of confusion. Rather, it is sufficient that the goods are related in some
manner, or that the circumstances surrounding their marketing are such that they
would be encountered by the same persons in situations that would give rise,
because of the marks, to a mistaken belief that they originate from the same source
or that there is an association or connection between the sources of the goods. In re
Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009). The greater the degree of
similarity between the marks, the lesser the degree of similarity between the goods
necessary to support a finding of likelihood of confusion. In re Opus One Inc., 60
USPQ2d 1812, 1815 (TTAB 2001).
The goods identified in the subject application and the cited registration are:
Applicant’s Goods Registrant’s Goods
Food products, namely,
sausages, cold cuts, meat,
chicken, chicken kabobs, shish
kabobs, lamb kabobs, ground
meat kabobs, stews for
consumption on or off the
premises
Pastas

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Serial No. 85665175
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Mark Reg. No. Goods
LEGOÛT 4232129 Prepared entrees consisting primarily of meat or poultry; prepared entrees consisting
primarily of pasta or rice

Although these 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 they serve to suggest that the identified goods are of a kind which are
produced or marketed by a single source under a single mark. See In re Anderson,
101 USPQ2d 1912, 1919 (TTAB 2012); In re Davey Prods. Pty. Ltd., 92 USPQ2d
1198, 1203 (TTAB 2009). In this case, we find that these third-party use-based
registrations support the conclusion that the goods are related.
In addition, the Examining Attorney submitted an excerpt from the DELALLO
website (delallo.com) showing this company advertising the sale of a wide variety of
DELALLO branded foods including pastas and Italian meats.5
Finally, the Examining Attorney submitted copies of recipes for beef and pasta
dishes and chicken kabob over pasta dishes to show that meat, chicken and pasta
are complementary products.
In view of the foregoing, we find that Applicant’s “sausages, cold cuts, meat,
chicken, chicken kabobs, shish kabobs, lamb kabobs, ground meat kabobs, stews for
consumption on or off the premises” are related to Registrant’s pastas.

5 December 13, 2013 Office action.
Serial No. 85665175
- 9 -

III. Balancing the factors.
We treat any du Pont factors for which there is no record evidence as neutral. In
view of our findings that the marks are similar and the identified goods are related
under the critical first two du Pont factors, we find that Applicant’s mark Almas for
“food products, namely, sausages, cold cuts, meat, chicken, chicken kabobs, shish
kabobs, lamb kabobs, ground meat kabobs, stews for consumption on or off the
premises” is likely to cause confusion with the mark ALMA’S and design for
“pastas.”
Decision: The refusal to register Applicant’s mark affirmed.