Q’Sai Co., Ltd.

Trademark Trial and Appeal Board

Nov 15, 2017

No. 79157321 (T.T.A.B. Nov. 15, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: November 15, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Q’Sai Co., Ltd.
_____

Serial No. 79157321
_____

Randolph E. Digges, III of Rankin Hill & Clark LLP,
for Q’Sai Co., Ltd.

Jonathan R. Falk, Law Office 111,
Robert L. Lorenzo, Managing Attorney.
_____

Before Zervas, Ritchie, and Shaw,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
Q’Sai Co., Ltd. (“Applicant”) seeks registration on the Principal Register of the
mark Q’SAI,1 in standard character format, for “non-alcoholic fruit extracts used in
the preparation of beverages; non-alcoholic fruit juice beverages; non-carbonated,
non-alcoholic frozen flavored beverages; syrups for making non-alcoholic beverages;
beauty beverages, namely, fruit juices for energy supply; concentrated fruit juice;

1 Application Serial No. 79157321 was filed on August 11, 2014, under Section 66(a) of the
Trademark Act, 15 U.S.C. § 1141f(a), claiming priority from International Registration No.
1050819, registered May 14, 2010. The application contains a translation statement: The
wording “Q’SAI” has no meaning in a foreign language.

Serial No. 79157321
- 2 -
concentrates for making fruit juices; fruit drinks and fruit juices; fruit drinks and
juices; fruit juice; fruit juice concentrates; fruit juices; fruit juices and fruit drinks;
apple juice; grape juice; non-alcoholic beverages containing fruit juices; syrups for
making whey-based beverages; whey beverages; prepared entrees consisting of fruit
drinks and fruit juices, fruit-based beverages, non-alcoholic beverages containing
fruit juices, non-alcoholic fruit extracts used in the preparation of beverages, non-
alcoholic fruit juice beverages, vegetable juices, vegetable-fruit juices and smoothies
being fruit beverages with fruit predominating; vegetable juice beverage; vegetable
juices being beverages; vegetable-fruit juices,” in International Class 32.
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
when applied to the identified goods, it so resembles the previously registered mark
(hereinafter “SAI”),2 also in standard character format, for “mineral
supplements; beverages containing platinum for use as a mineral supplement;
mineral supplements in the nature of beverages adapted for medical use; liquid
mineral supplements,” in International Class 5 and “soft drinks, namely, non-
carbonated soft drinks; beauty beverages, namely, energy drinks containing mineral
supplements,” in International Class 32, as to be likely to cause confusion, mistake,
or to deceive.

2 Registration No. 4822907 issued September 29, 2015. The registration contains a
translation statement: The wording “SAI” has no meaning in a foreign language.
Serial No. 79157321
- 3 -
When the refusal was made final, Applicant filed this appeal, which is fully
briefed. For the reasons discussed below, we reverse the refusal to register.
Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all 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 (Fed. Cir.
2003). We first 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). In comparing the marks, we are mindful that the test is not
whether they 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 that confusion as to the source of the goods 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 mem., No. 92-1086
(Fed. Cir. June 5, 1992). The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression of the marks. See
Inter IKEA Sys. V.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); 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).
Serial No. 79157321
- 4 -
The mark in the cited registration is SAI. Applicant’s mark is Q’SAI. Although the
mark in the cited registration is incorporated-in-full in Applicant’s mark, Applicant
argues that the marks look different, would be pronounced differently, and that they
are very different in commercial impression. Regarding the appearance of the marks,
our precedent dictates, that “it is often the first part of a mark which is most likely to
be impressed upon the mind of a purchaser and remembered.” Presto Prods., Inc. v.
Nice-Pak Prods. Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). We find that here, the letter
“Q” and apostrophe in Applicant’s mark are prominent and cannot be discounted.
Thus the appearances of the marks are distinct.
Regarding the pronunciation, our case law dictates that there is no correct
pronunciation of a trademark. StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d
1327, 111 USPQ2d 1649, 1651 (Fed. Cir. 2014) (“There is no correct pronunciation of
a trademark that is not a recognized word.”) (citing In re Belgrade Shoe Co., 411 F.2d
1352, 162 USPQ 227 (CCPA 1969)); In re Allegiance Staffing, 115 USPQ2d 1319, 1325
(TTAB 2015) (no correct pronunciation of mark that is coined term). We agree with
Applicant, nonetheless, that the letter “Q” in Applicant’s mark differentiates the
sound of Applicant’s mark from the cited mark, at the very least adding an additional
syllable.
Regarding commercial impression, Applicant asserts that there is a dictionary
definition of the term “SAI.” We take judicial notice of the following English language
definition: “a dagger with two sharp prongs curving outward from the hilt, originating
Serial No. 79157321
- 5 -
in Okinawa and sometimes used in pairs in martial arts. Origin: Japanese.”3
Applicant further submitted the declaration of Shinji Yamashita, Applicant’s General
Manager of Human Resources and General Affairs Department, dated October 19,
2016. Mr. Yamashita gave the following testimony regarding the origin of Applicant’s
mark:
Applicant’s Q’SAI mark is an arbitrary, fanciful and distinctive term,
which was derived from Applicant’s fifty year history. In October of
1965, Hasegawa Tsuneo founded a confectionary company in Japan. The
confectionary company later became involved with the production of
frozen vegetables and changed its name to Kyushu Shizen Yasai Co.,
Ltd. The “Kyu” portion of “Kyushu” sounds like the letter “Q” when
spoken aloud. And the word “Yasai” (which means “vegetable”) in the
Japanese language) provides the impetus for the “SAI” part of the
applied for mark. In 1982, the company started production and sales of
a kale-based dietary/food/nutritional supplement in Japan. The product
was marketed in Japan using the mark [Japanese character] (which is
Japanese lettering for Q’SAI.4

The letter “Q” in applicant’s mark has no meaning when added to the term “SAI,” nor
does the term “Q’SAI” as a whole have any meaning. Thus, Applicant’s mark is a
coined term, whereas the mark in the cited registration has a meaning in English.
The marks thus have substantially different commercial impressions. See In re
General Electric Co, 304 F.2d 688, 134 USPQ 190, 192 (CCPA 1962). Based on the
differences in sight, sound, meaning and commercial impressions, we find that the
marks are substantially dissimilar.
Because we find that the dissimilarity of the marks makes it unlikely for confusion
to result from Applicant’s use of its mark, we need not discuss the other du Pont

3 https://en.oxforddictionaries.com.
4 Attached to Applicant’s October 20, 2015 Response to Office Action, at 6-7.
Serial No. 79157321
- 6 -
factors. See 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.”) There is no likelihood of confusion.
Decision: The refusal to register Applicant’s mark is reversed.