Sabroso Co.v.Sabroso Foods Enterprises, Inc.

Trademark Trial and Appeal Board

May 29, 1998

No. 91095968 (T.T.A.B. May. 29, 1998)

Paper No. 27
GDH/gdh
THIS DISPOSITION IS NOT CITABLE
AS PRECEDENT OF THE TTAB MAY 29, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Sabroso Company
v.
Sabroso Foods Enterprises, Inc.
_____
Opposition No. 95,968 to application Serial No. 74/498,053
filed on March 7, 1994
_____
Charles D. McClung and Nancy J. Moriarty of Chernoff, Vilhauer,
McClung & Stenzel, LLP for Sabroso Company.
John Cyril Malloy, III and Jennifer K. Lawson of Malloy & Malloy,
P.A. for Sabroso Foods Enterprises, Inc.
______
Before Cissel, Quinn and Hohein, Administrative Trademark Judges.
Opinion by Hohein, Administrative Trademark Judge:
Sabroso Foods Enterprises, Inc. has filed an
application to register the mark "S SABROSO!" and design, as
reproduced below,
Opposition No. 95,968
2
for "canned peas, dry peas, frozen peas, canned black beans,
canned soursop, coconut milk and prepared sausage" in
International Class 29 and "barbecue sauce, sour orange sauce,
[and] garlic and onion sauce" in International Class 30.1
Registration has been opposed by Sabroso Company on the
ground that applicant’s mark, when applied to applicant’s goods,
so resembles both opposer’s previously used and well known mark
"SABROSO" for "fruit puree concentrates" and its previously used
and well known trade name "SABROSO COMPANY" as to be likely to
cause confusion, mistake or deception.
Applicant, in its answer, has denied the allegations of
the notice of opposition.2
The record includes the pleadings; the file of the
opposed application; and, as opposer’s case-in-chief, the
testimony, with exhibits, of opposer’s president, James M. Root,

1 Ser. No. 74/498,053, filed on March 7, 1994, which alleges, for the
goods in each class, a date of first use anywhere of October 8, 1990
and a date of first use in commerce of September 9, 1991. The term
"SABROSO," the English translation of which is stated to mean "TASTY,"
is disclaimed.
2 Although applicant has also alleged, as an affirmative defense, that
while opposer "knew or should have known upon reasonable inquiry of
the use by Applicant of its mark since at least the date of
Applicant’s previous trademark application," inasmuch as opposer "has
taken no action against Applicant, Opposer is estopped and is guilty
of laches and acquiescence by virtue of Applicant’s reliance upon such
inaction." However, since such defense was neither pursued at trial
nor argued in the briefs, no further consideration will be given
thereto.
Opposition No. 95,968
3
and the testimony of a former marketing consultant to opposer
(and who presently is the executive vice president and chief
operating officer of Liberty Federal Bank), Frank H. Hoell III.3
Applicant, as its case-in-chief, submitted the testimony, with an
exhibit, of its president, Carlos Bordon.4 Briefs have been
filed,5 but an oral hearing was not requested.
The issues to be determined are whether opposer has
priority of use of its mark and/or trade name and, if so, whether
applicant’s "S SABROSO!" and design mark, when used in connection
with its specified food products and sauces, so resembles
opposer’s "SABROSO" mark for its "fruit puree concentrates"
and/or its "SABROSO COMPANY" trade name that confusion is likely
as to the source or sponsorship of the parties’ goods.
According to the record, opposer began operations in
1964 under the name Western Pear Distributors, Inc. However,
because such name was too limiting and thus not appropriate for

3 Although the depositions of opposer’s witnesses have been designated
as confidential pursuant to the terms of a stipulated protective order
approved by the Board, we note that, except for certain proprietary
business information such as sales figures, advertising expenditures
and customer names, the facts and exhibits disclosed in such
depositions have not been treated as confidential in the briefs filed
by opposer. Moreover, many of the publicly available newspaper
articles mention the names of opposer’s principal customers. In view
thereof, and since the Board simply cannot render an intelligible
opinion in this proceeding without reference thereto, only such
proprietary business information as opposer’s actual sales and
advertising figures will be treated herein as confidential.
4 The parties’ stipulation, filed by applicant, to correct certain
portions of Mr. Bordon’s deposition is approved.
5 Portions of the parties’ briefs have been designated as confidential.
Opposition No. 95,968
4
the markets opposer wanted to develop,6 opposer amended its
articles of incorporation, effective as of July 13, 1965, to
change its name to Sabroso Company. Since then, opposer has been
known solely by that name and, since 1965, has continuously used
the mark "SABROSO," which is Spanish for "tasty" or "delicious,"
in connection with its business of selling fruit puree
concentrates and fruit purees. Opposer selected the designation
"SABROSO" for use as its mark and in its trade name because,
according to Mr. Root, "[o]ur markets were principally in
Hispanic or Spanish-speaking countries and portions of the United
States, and we wanted a name that would have good market appeal
to Spanish-speaking customers."7 (Root dep. at 39.)
Opposer’s products are currently sold primarily to food
manufacturers and food processors to produce fruit juices, fruit
nectars, baby foods, fruit-based sauces and fruit candies for
sale, ultimately, to consumers through retail stores. Basically,
opposer’s products are used as ingredients for consumer food
products and for intermediate food products, such as fruit
fillings for cookies. None of opposer’s products themselves,
however, are currently sold at the retail level to the end or
ultimate consumers of fruit-based foods.

6 Specifically, opposer was interested in expanding its business beyond
the sale of pear puree concentrates and pear purees to include other
varieties of fruit puree concentrates and fruit purees.
7 While Mr. Root conceded on cross-examination that speakers of Spanish
would consider the designation "sabroso" to mean that opposer’s
products are tasty, he added that in Spanish-speaking markets such a
designation "would have a positive and quality connotation for our
company" and that, for those who do not understand Spanish, "the name
just has a good sound". (Root dep. at 42.)
Opposition No. 95,968
5
Although opposer is located in Medford, Oregon, its
initial sales under its trade name and mark were principally to
foreign, rather than domestic markets, with sales expanding
through the late 1960’s and early 1970’s to include 19 foreign
countries. However, beginning in 1974, opposer started
experiencing rapid growth in its United States markets and, in
1988, added a second facility in Sandy, Oregon to produce berry
products as well as cherry puree concentrates. At present,
opposer’s product line covers fruit purees, fruit puree
concentrates and fruit juice concentrates. While its largest
selling product is pear puree concentrates, it also sells apple,
apricot, peach, nectarine, white grape, plum, and prune purees
and puree concentrates, along with blackberry, strawberry, black
raspberry, red raspberry, blueberry, boysenberry and cherry juice
concentrates, purees and puree concentrates.
Opposer’s fruit puree concentrates, according to Mr.
Root, "are packaged in bulk packaging from as small as a five-
gallon plastic pail to as large as a [stainless steel tanker]
truck," with aseptic 55-gallon drums being commonplace. (Id. at
11.) Sales of opposer’s products for fiscal year 1996 (expressed
herein in round figures since the actual amounts testified to are
considered to be confidential) were in the neighborhood of tens
of millions of dollars, representing many millions of pounds of
fruit juice concentrates, fruit purees and fruit puree
concentrates. Although annual sales for prior fiscal years were
not provided, estimated sales of opposer’s products for fiscal
Opposition No. 95,968
6
year 1997 were projected to increase by 50 percent over those for
fiscal year 1996.
Opposer utilizes its "SABROSO COMPANY" trade name
and/or its "SABROSO" mark on printed marketing pieces, which
include technical information about how its products are to be
used, specification sheets, and advertising brochures which
provide a general history of opposer and/or descriptions of its
products. Such marketing materials are distributed by opposer to
"food company purchasing agents, food company scientists and
products developers and to the general management of food
companies." (Id. at 17.) Brochures advertising, for example,
use of opposer’s fruit puree concentrates for use in producing
fat-free brownies have been distributed at food science shows
attended by food product developers. In addition, a number of
opposer’s brochures play off the meaning of the Spanish term
"sabroso" by utilizing the slogan: "Sabroso. Another way to say
delicious." (E.g., opposer’s exhibits 5 and 11.) Some of
opposer’s brochures, as well as product labels, also include the
use of a circular, stylized letter "S" logo in close proximity to
its trade name or mark, with two of its brochures even utilizing
such logo in formats which, much like applicant’s mark, feature
the letter "S" as immediately preceding the term "SABROSO," as
illustrated below:
Opposition No. 95,968
7
Opposer regularly exhibits at the Institute of Food
Technologist Show, an annual trade show held in the United States
and attended by approximately 20,000 food scientists. At that
show, opposer displays its new products and distributes brochures
and other promotional materials bearing its mark and trade name.
Opposer, for many years, also has been listed in various trade
directories, such as the Thomas Food Industry Register, which is
principally used by food company purchasing agents and, in
particular, indicates that opposer is a producer and exporter of
fruit purees, puree concentrates and juice concentrates; the
Directory of the Canning, Freezing, Preserving Industries, which
"is used by operations people in the food industry" and
specifically includes a reference to opposer’s "SABROSO" brand;
the Produce Reporter Blue Book; and the Membership Directory and
Buyers Guide of the Northwest Food Processors Association. (Root
dep. at 21.) Since 1994, opposer has additionally advertised in
the Thomas Food Industry Register, with an ad listing its
products as juice concentrates, purees, pastes and puree
concentrates and stating the applications for such products as
including "sauces/toppings". (Opposer’s exhibit 20.)
Opposer’s name, business and mark have received
considerable publicity over the years by being mentioned in
various newspaper and trade journal articles. While most of the
articles appeared in the local Oregon press, a few stories, such
as those concerning opposer’s receipt of an award from the
Opposition No. 95,968
8
Governor of Oregon for "Outstanding International Business
Achievement" in 1996, were "picked up by the Associated Press and
... appeared in newspapers throughout the country." (Root dep.
at 24.) Among the examples of record of the publicity garnered
by opposer is a February 25, 1982 article from the Medford,
Oregon Mail Tribune newspaper which quotes Tim Root, a cousin of
James M. "Jim" Root, as noting that "[t]he two largest demands
for our product come from Latin American peoples and baby food
manufacturers. The Latin Americans use a puree concentrate
drink--a pulpy fruit drink". (Opposer’s exhibit 50.) Another
example, consisting of a December 20, 1992 story about opposer
which appeared in the business section of the same newspaper,
reported among other things that:
Baby food accounts for the biggest share
of the company’s product. Sabroso sells
puree to Beech Nut and Heinz and is the
exclusive vendor for Gerber Baby Food.
The second-largest share is in fruit
juices and nectars, followed by fruit snacks
and barbecue and other sauces. The company’s
customers include Tropicana, Nestle, Treetop,
Ocean Spray and Coca-Cola.
(Opposer’s exhibit 32.) Similarly, a July 22, 1996 article on
opposer from the business section of the Salem, Oregon Statesman
newspaper indicated that:
Baby food is the biggest market for
Sabroso. It supplies Gerber, Beech Nut,
Heinz and Earth’s Best.
Fruit juices and nectars are the second-
largest product line for Sabroso, which
serves Tropicana Twister juices, Dole ,
Chiquita, Libbey and Kern.
The "healthy snack" sector, including
fruit rollup and Gummi snacks, ranks third.
Sabroso is the sole supplier for the big
Opposition No. 95,968
9
three producers: General Mills, Farley’s and
Stretch Island.
"We have a fourth new area that’s pretty
exciting--McDonald’s dipping sauces for
McNuggets," Root said.
(Opposer’s exhibit 27.)
As a result of its long-range business planning during
the early 1990’s, opposer formulated a marketing plan followed by
a strategic growth plan. The research culminating in opposer’s
marketing plan revealed, according to Mr. Root, that "Sabroso
Company had a very high recognition in the food business, that
[is,] food companies knew our name readily," and that "in our
area of fruit concentrates, purees and juices, ... we had a very
large market position." (Root dep. at 12.) In Mr. Root’s
opinion, opposer is a world leader in the production of fruit
puree concentrates inasmuch as, by consensus of those in the
industry, it has approximately 30 percent of the worldwide market
for such products.
Similarly, as testified to by Mr. Hoell, who at the
time owned the management consulting firm which conducted the
survey of opposer’s food manufacturing customers, his marketing
research revealed that opposer "was very well-known to these
people" due to the consistent quality of product it provided.
(Hoell dep. at 5.) Mr. Hoell noted, moreover, that not only did
his study find a high name recognition for opposer in the trade,
but "one of the conclusions that the marketing study drew was
that one of Sabroso’s strengths ... in the marketplace ... was
their name recognition and, in fact, the uniqueness of their
name, Sabroso ...." (Id. at 6.) While conceding under cross-
Opposition No. 95,968
10
examination that opposer’s Spanish-speaking customers would
understand such name as meaning "tasty" or "delicious," Mr. Hoell
nevertheless indicated that the name was unique, in relation to
food products produced in the United States, because "no other
company ... had a name anything like it in the marketplace" and
that the name reflected "a long-term association with quality in
terms of the quality of the product provided." (Id. at 8.)
Furthermore, in light of the market research finding
that "the perception of the company was one that produced very
high quality products and that it was the quality image that had
caused growth and would be the avenue for future growth," opposer
decided, as part of the strategic growth plan which it completed
in 1992, to expand its business. (Root dep. at 12.) Such
expansion was to occur by increasing the market share occupied by
opposer’s existing products, by "develop[ing] new but related
products to the current market line" and by "enter[ing] retail
production". (Id. at 13.) Specifically, as to the latter,
opposer’s plan calls for the use of its "SABROSO COMPANY" name in
connection with the production of "retail or consumer products,
primarily in the juice, nectar and beverage area." (Id.) Under
the plan’s timetable, opposer expects to expand into the retail
marketplace by 2002, with development of fruit beverage products,
utilizing its existing products as ingredients, occurring around
1999 or 2000. Moreover, while opposer anticipates selling such
products at retail throughout the United States, since its nectar
lines would be targeted primarily to Hispanic markets, sales
thereof would be focused on such regional areas as Chicago,
Opposition No. 95,968
11
Florida, southern California, and New York and New Jersey, both
of which have large Puerto Rican populations. Using the products
which it currently produces, opposer also plans to expand to
bakery and baked filling products as well as to dietary, fruit
and yogurt applications.
Opposer, even though its has federally registered only
its stylized letter "S" logo, nevertheless has acted to police
its "SABROSO" mark and "SABROSO COMPANY" trade name. In
particular, upon becoming aware of a company in Ashford, Oregon
which was also using the name "Sabroso Company," opposer
requested through an attorney that such use stop and, by
agreement, the company changed its name. However, although
opposer sells its products in Puerto Rico and a number of states
in which applicant’s goods have also been sold,8 opposer was not
aware of applicant until opposer’s in-house counsel spotted
applicant’s mark when it was published for opposition. Opposer,
furthermore, admits that it is not aware of any instances of
actual confusion between the parties, such as misdirected
telephone calls or written correspondence.
Applicant, according to Mr. Bordon, was formed on June
30, 1992 and, although originally known as La Preferida Florida,
Inc., changed its name to Sabroso Foods Enterprises, Inc.
Previously, however, Mr. Bordon himself had used the term

8 Specifically, such states are Florida, Louisiana and California.
Opposer, in addition, has sold its products under its "SABROSO" mark
in Massachusetts, Vermont, New York, New Jersey, Delaware, Maryland,
Virginia, North Carolina, Georgia, Mississippi, Missouri, Iowa, Ohio,
Indiana, Michigan, Minnesota, North Dakota, Nebraska, Oklahoma,
Opposition No. 95,968
12
"SABROSO" as a trademark in Florida beginning in 1990 and had
used such mark in interstate commerce commencing about September
1991. Sometime after its formation, applicant adopted its "S
SABROSO!" and design mark, choosing such mark because "the
Sabroso name was very good for the Spanish trade" in the sense
that "they really know [that] sabroso means tasty, [and] that
means the food is good ...." (Bordon dep. at 5.) The term
"SABROSO," therefore, was considered to be particularly apt as
the basis for a trademark for applicant’s goods inasmuch as 90
percent of applicant’s sales are to the retail Spanish-speaking
or Hispanic trade.
Having selected such term, Mr. Bordon "went to the
library" and, although he "found there were ... at least two
companies that [had] ... the Sabroso trademark registered ...
under different class[es]," he was told by "a few persons" that
he "would have no problem" if the goods for which registration of
the mark would be sought were classified in "class ... 29 and
30." (Id. at 6.) Given the differences in the respective
products, Mr. Bordon decided to go ahead and use the term
"SABROSO" and neither he nor applicant has experienced any
trademark problems with such companies. Applicant, moreover, was
not aware of opposer at such time and did not learn of opposer
until this opposition proceeding ensued.
Applicant, as of the December 30, 1996 date of its
president’s deposition, primarily sells its products through

Arizona, Utah, Idaho, Washington, Oregon and Hawaii. Applicant has
ceased selling its goods pending the disposition of this opposition.
Opposition No. 95,968
13
retail food stores, most of which are located in the Hispanic or
Spanish-speaking areas of Florida, Louisiana and California.
Unlike opposer, none of applicant’s food products is sold as an
ingredient to intermediary or other food manufacturers. Among
the products which applicant has sold under its "S SABROSO!" and
design mark are a "fruit that is coming from Santo Domingo by
[the] name of guanabana," which "is also known as sour-sop by
Jamaicans";9 a sour orange sauce which is used for barbecue; and
coconut milk. (Id. at 11.) Although, at one time, applicant
also sold "guava nectars, mango nectars, [and] tamarino nectars,"
applicant has largely stopped selling its goods ever since "it
started having this difficulty with the trademark". (Id. at 12.)
Applicant, however, has never experienced any incidents of actual
confusion, such as receipt of communications meant for opposer or
another company, nor has anyone ever inquired into whether a
possible connection or affiliation exists between applicant and
opposer.
Turning first to the issue of which party has priority
of use, the Board pointed out in Perma Ceram Enterprises Inc. v.
Preco Industries Ltd., 23 USPQ2d 1134, 1138 (TTAB 1992), that:

9 We judicially notice, in this regard, that "soursop," which is one of
the goods listed in applicant’s application, is defined in The Random
House Dictionary of the English Language (2d ed. 1987) at 1824 as
meaning: "1. The large, dark green, slightly acid, pulpy fruit of a
small West Indian tree, Annona muricata, of the annona family. 2. the
tree itself. Also called guanabana." It is settled that the Board
may properly take judicial notice of dictionary definitions. See,
e.g., Hancock v. American Steel & Wire Co. of New Jersey, 203 F.2d
737, 97 USPQ 330, 332 (CCPA 1953) and University of Notre Dame du Lac
v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594, 596 (TTAB
1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Opposition No. 95,968
14
[T]he controlling law ... is that where
the mark [or trade name] relied upon by a
plaintiff in support of its priority of use
and likelihood of confusion claim is merely
descriptive ..., then the plaintiff must
establish priority of acquired distinctive-
ness. As noted above, the priority contest
... is not solely one of who used the mark
first chronologically--rather, the test is
which party first achieved secondary meaning
in its mark. See: J. T. McCarthy, Trademarks
and Unfair Competition, Section 16:12 (2d ed.
1984). ....
It is clear from the record that, even if the term "SABROSO" is
initially regarded, under the doctrine of foreign equivalents,10
as being merely descriptive of a characteristic or feature of
opposer’s products and the nature of its business, opposer has
demonstrated, as it must, that not only have the mark "SABROSO"
and the trade name "SABROSO COMPANY" acquired distinctiveness,
but such occurred prior to the earliest date upon which applicant
can rely in this proceeding.
Specifically, opposer has shown that by no later than
the earliest use of the term "SABROSO" by applicant, which use
occurred, as part of its "S SABROSO!" and design mark, sometime
after the formation of applicant on June 30, 1992,11 both

10 It is well established that the foreign equivalent of a merely
descriptive English word or expression generally is itself merely
descriptive and is no more registrable than the English word or
expression would be. See, e.g., In re Optima Int’l, 196 USPQ 775, 777
(TTAB 1977) and cases cited therein.
11 While, as noted earlier in this opinion, applicant’s president
testified that he first used the term "SABROSO" in Florida in 1990 and
later used such term in interstate commerce by September 1991, there
is nothing in the record, such as sales and advertising figures or
representative advertisements, from which we can infer that the term
"SABROSO" itself has acquired distinctiveness as used in connection
with applicant’s goods. Accordingly, for purposes of priority, the
only relevant use on which applicant rely, given its disclaimer of the
Opposition No. 95,968
15
opposer’s "SABROSO" mark and "SABROSO COMPANY" trade name had
acquired distinctiveness as a result of opposer’s substantially
exclusive and continuous use thereof since 1965, including
steadily growing sales and advertising under such designations
and receipt of appreciable exposure at trade shows and in the
printed media. Opposer’s sales, in particular, had expanded
through the late 1960’s and early 1970’s to include 19 foreign
countries and, beginning in 1974, opposer began to experience
rapid growth in its United States markets, even adding a second
facility by 1988. In view thereof, and in light of its trade
directory listings, annual trade show participation, long-
standing media coverage and vigilance in policing the "SABROSO"
name, it is plain that to opposer’s customers in the trade for
fruit purees, fruit puree concentrates and fruit juice
concentrates, the mark "SABROSO" and the trade name "SABROSO
COMPANY" have come to be recognized as designations identifying
and distinguishing opposer and its products and that such mark
and trade name acquired their distinctiveness prior to the first
use of the mark "S SABROSO!" and design by applicant.
This brings us, therefore, to consideration of the
pertinent factors set forth in In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973), for
determining whether a likelihood of confusion exists. We find,
in view thereof, that confusion as to the source or sponsorship
of the parties’ goods is likely to occur. Among other things, we

merely descriptive term "SABROSO," is its earliest use of the mark "S
SABROSO!" and design.
Opposition No. 95,968
16
note that applicant does not dispute that opposer’s "SABROSO"
mark and "SABROSO COMPANY" trade name are substantially similar
to applicant’s "S SABROSO!" and design mark. Specifically, when
considered in their entireties, opposer’s mark and trade name are
substantially similar in sound, appearance and connotation to
applicant’s mark and, as used in connection with their respective
food products, create virtually the same commercial impression.12
Moreover, while not necessarily famous, the record demonstrates
that to opposer’s customers, its "SABROSO" mark and "SABROSO
COMPANY" trade name have become well known and are recognized as
indications of quality. Clearly, if such designations and
applicant’s "S SABROSO!" and design mark were to be used in
connection with identical or closely related products, confusion
as to the source or sponsorship of the goods would be likely to
occur.
Applicant argues, however, that confusion is not likely
because its products are primarily sold through retail food
stores for consumption by ordinary consumers while opposer’s
products are marketed exclusively to food manufacturers and
producers for use as ingredients. However, as correctly pointed
out by opposer in its reply brief, it is settled that the
registrability of an applicant’s mark must be evaluated on the
basis of the identification of goods set forth in the involved

12 Such is especially the case when opposer’s mark and trade name are
also used in connection with its stylized letter "S" logo, since the
sound of the letter "S" would suggest to Spanish-speaking or Hispanic
customers that, like the phrase "S SABROSO!" in applicant’s mark,
opposer’s goods also "es sabroso," that is, they "are tasty" or "are
delicious".
Opposition No. 95,968
17
application, regardless of what the record may reveal as to the
particular nature of the applicant’s goods, their actual channels
of trade, or the classes of purchasers to which they are in fact
sold. See, e.g., Octocom Systems Inc. v. Houston Computer
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990) and Canadian Imperial Bank of Commerce, N.A. v. Wells Fargo
Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815-16 (Fed. Cir. 1987).
Here, the goods set forth in applicant’s application
are neither expressly nor implicitly limited as being for sale
through retail food stores for use by the ultimate consumers
thereof. Thus, notwithstanding applicant’s arguments that the
parties’ goods are very different in their actual use and would
appeal to different and unrelated classes of purchasers, the
respective goods must be considered to be closely related since,
as broadly identified, applicant’s goods would be suitable for
sale through the identical channels of trade and to the same food
purchasing agents as are opposer’s products. Applicant’s canned,
dry and frozen peas, canned black beans, canned soursop, coconut
milk and prepared sausage, as well as its barbecue, sour orange,
and garlic and onion sauces, must be presumed, given the absence
of any restrictions in their identification, to be suitable for
use as ingredients by the same food producers and manufacturers
as those who utilize opposer’s fruit purees, fruit puree
concentrates and fruit juice concentrates.
Consequently, while purchasers of food products
utilized as ingredients for other food products are undoubtedly

Opposition No. 95,968
18
sophisticated and discriminating, their knowledge of their
product needs, sources of supply and the costs involved does not
mean, even if they were to recognize the slight differences
between applicant’s "S SABROSO!" and design mark and either
opposer’s "SABROSO" mark or its "SABROSO COMPANY" trade name,
that they would be immune from confusion as to the source or
sponsorship of the parties’ products. Such purchasers, for
example, could reasonably believe, upon encountering applicant’s
canned soursop or its coconut milk, that opposer had simply
expanded its existing product line to include another processed
fruit product, or they could assume, upon initial exposure in the
marketplace to any of applicant’s other goods, that opposer had
entered a new but related line of food products. In either
event, confusion as to origin or affiliation of the respective
goods would be likely.
Finally, while we note that neither party has
experienced any incidents of actual confusion as a result of the
contemporaneous use of their respective marks and opposer’s trade
name, suffice it to say that such is not a meaningful factor in
this case since the record fails to indicate that, for a
significant period of time, applicant’s sales of its goods and
any advertising thereof have been so appreciable and continuous
that, if confusion were likely to happen, any instances of actual
confusion would have occurred and been brought to the parties’
attention. See, e.g., Gillette Canada Inc. v. Ranir Corp., 23
USPQ2d 1768, 1774 (TTAB 1992).
Opposition No. 95,968
19
Decision: The opposition is sustained and registration
to applicant is refused.
R. F. Cissel
T. J. Quinn
G. D. Hohein
Administrative Trademark Judges,
Trademark Trial and Appeal Board