Salt Creek, Inc.v.Hikari Sales USA, Inc.

Trademark Trial and Appeal Board

Mar 27, 2007

No. 91158777 (T.T.A.B. Mar. 27, 2007)

Hearing:
April 20, 2006 Mailed: 3/27/07

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Salt Creek, Inc.
v.
Hikari Sales USA, Inc.
_____

Opposition No. 91158777
to application Serial No. 78009371
filed on May 23, 2000
_____

Robert E. Mansfield, Scott M. Lilja and Nicole M. Deforge of
Van Cott, Bagley, Cornwall & McCarthy for Salt Creek, Inc.

Peter M. Lancaster and Heather D. Redmond of Dorsey &
Whitney for Hikari Sales USA, Inc.
______

Before Quinn, Rogers and Drost, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

An application was filed by Hikari Sales USA, Inc. to
register the mark ALGAE WAFERS (“WAFERS” disclaimed) for
“pet foods, namely fish foods.”1 Applicant has claimed that

1 Application Serial No. 78009371, filed May 23, 2000, alleging
first use anywhere and first use in commerce on January 1, 1992.
The drawing in the application is set forth as ALGAE WAFER and,
in the application, the mark is described as ALGAE WAFER. The
specimens, however, reveal that the mark as actually used is
ALGAE WAFERS. The examining attorney never noted the discrepancy
between the singular and plural forms of “WAFER”. The parties
have referred in all their papers to applicant’s mark as the
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91158777
2
ALGAE WAFERS has acquired distinctiveness under Section 2(f)
of the Trademark Act.
Salt Creek, Inc. has opposed registration on the ground
that applicant’s designation ALGAE WAFERS is highly
descriptive and that the evidence of acquired
distinctiveness is insufficient to permit registration on
the Principal Register under Section 2(f). Opposer also
claims that applicant has committed fraud in its Section
2(f) declarations in the involved application.
Applicant, in its answer, denied the salient
allegations of the notice of opposition.
The record consists of the pleadings; the file of the
involved application; trial testimony, with related
exhibits, taken by each party; portions of two discovery
depositions introduced by opposer in its notice of reliance;
and portions of a discovery deposition made of record by way
of applicant’s notice of reliance. Both parties filed
briefs, and both parties were represented by counsel at an
oral hearing held before the Board.

plural version. Accordingly, and inasmuch as ALGAE WAFERS is the
mark as actually used, we will do the same. Our decision on the
merits would not change if the mark were, in fact, singular. See
Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 341 (CCPA 1957)
[“It is evident that there is no material difference, in a
trademark sense, between the singular and plural forms of the
word ‘Zombie’ and they will therefore be regarded here as the
same mark.”] We would add, however, that in the event applicant
ultimately prevails in this proceeding, it should file a
substitute drawing or request that the Office amend the drawing
to show the mark as ALGAE WAFERS. TMEP §§ 807.12(a), 807.15 and
807.16.
Opposition No. 91158777
3
Each party has filed numerous objections against
certain testimony and exhibits introduced by its adversary.
Opposer’s objections number twenty-four, while applicant,
for its part, made sixteen specific objections; each party
has responded to the other’s objections.
None of the testimony and/or exhibits sought to be
excluded is outcome determinative. Given this fact, coupled
with the number of objections (40), we see no compelling
reason to discuss the objections in a detailed fashion.
Suffice it to say, we have considered all of the testimony
and exhibits submitted by the parties. In doing so, we have
kept in mind the various objections raised by the parties,
and we have accorded whatever probative value the subject
testimony and exhibits merit.2
The parties have designated significant portions of the
record and the briefs as “confidential.” Although the
numbers play a crucial role in determining whether or not
acquired distinctiveness has been established, we are
mindful that the sales and advertising figures were

2 We would specifically point out, however, that opposer’s delay
in producing documents is hardly commendable. Although some
documents were produced during discovery, the bulk of the
production was not made until the eve of trial. Thus, rather
than having the benefit of the documents during discovery for
possible followup, and in ample time before trial, applicant was
left with less than three weeks to review the documents in
preparation for opposer’s testimony. Despite opposer’s late
production, however, applicant did not seek a reopening of
discovery to conduct follow-up or a delay of trial to allow more
time to review the production.
Opposition No. 91158777
4
introduced under seal. Thus, while we are privy to the
specific figures, we will refer to them in only a very
general fashion. Such figures, were we able to disclose
them in this opinion, would assist any reader beyond the
parties to better understand our reasoning in reaching our
decision. Also, the figures would reveal the compelling
case in support of our decision that this opinion might not
otherwise convey.
The facts, as set forth by the parties in each
respective “Recitation of Facts,” are largely undisputed.
It is the legal conclusion to be drawn from these facts that
forms the crux of this controversy.
Opposer is engaged in the manufacture and sale of
aquaculture and aquarium tropical fish feeds. In 2000,
opposer purchased the assets, including the designation
ALGAE WAFERS, of one of its customers. The product sold
under the designation is an algae-based, wafer-shaped food
used to feed herbivorous tropical fish. Beginning in the
mid 1990s, opposer’s predecessor in interest marketed its
product under the designation ALGAE GALORE. In the late
1990s, the predecessor began identifying its product as
ALGAE WAFERS. From 2000 to the present time, opposer has
continuously used this designation for its tropical fish
food. Between December 2000 and 2004, total sales of the
product were very modest, and only at a fraction of the
Opposition No. 91158777
5
level of applicant’s sales. Annual expenditures made to
advertise the product under ALGAE WAFERS in trade magazines
likewise were very modest. Opposer also promoted its
product through its catalogs and website, and through its
appearances at trade shows. Opposer identifies three third-
party uses of the term “algae wafers” in the tropical fish
food industry. No specifics are given relative to these
uses.
Applicant is a competitor that is also engaged in
selling tropical fish foods. Applicant began selling an
aquarium fish food under the designation ALGAE WAFERS in
1992. The food is in the form of a sinking wafer that is
fed to algae eating fish; algae comprise approximately 3% of
the product’s ingredients. Applicant has continuously used
the designation ALGAE WAFERS from 1992 to the present. In a
recent nine-year period, total sales under the designation
were modest, but certainly at a level far exceeding
opposer’s sales. Applicant has marketed its product through
aquarium magazines and trade magazines, brochures, product
catalogs, product samples, and at trade shows. Total
advertising expenditures for a recent ten-year period
likewise were modest; additional money is spent annually on
attending trade shows. Applicant did not learn of opposer’s
use or its predecessor’s use of ALGAE WAFERS until June
Opposition No. 91158777
6
2000. In October 2000 applicant sent to opposer a cease and
desist letter, but did not follow up.
Acquired Distinctiveness
Opposer essentially contends that applicant has not
enjoyed substantially exclusive use due to opposer’s use of
the identical mark for identical goods, as well as to third-
party usage of the identical mark for identical goods.
Opposer also argues that applicant’s mark is highly
descriptive, as determined by the examining attorney, and
that, in view thereof, applicant’s evidence falls short of
proving acquired distinctiveness. Thus, opposer contends,
the term applicant seeks to register has not acquired
distinctiveness. See Minnesota Mining & Mfg. Co. v.
Addressograph-Multigraph Corp., 155 USPQ 470 (TTAB 1967).
“Where, as here, an applicant seeks a registration
based on acquired distinctiveness under Section 2(f), the
statute accepts a lack of distinctiveness as an established
fact.” Yamaha International Corp. v. Hoshino Gakki Co., 840
F.2d 1571, 6 USPQ2d 1001, 1005 (Fed. Cir. 1988). Thus,
opposer, not needing to worry about the descriptiveness of
the term ALGAE WAFERS, concentrated its case on the question
of acquired distinctiveness.
As Yamaha explains, when matter proposed for
registration under Section 2(f) is approved by the USPTO for
publication, there is a presumption that the examining
Opposition No. 91158777
7
attorney found a prima facie case of acquired
distinctiveness by the applicant for registration. Id., 6
USPQ2d at 1004. In an opposition, “the opposer has the
initial burden to establish prima facie that the applicant
did not satisfy the acquired distinctiveness requirement of
Section 2(f).” Id., 6 USPQ2d at 1005. “If the opposer does
present its prima facie case challenging the sufficiency of
applicant’s proof of acquired distinctiveness, the applicant
may then find it necessary to present additional evidence
and argument to rebut or overcome the opposer’s showing...”
Id.
The present case has been completely tried so “the only
relevant issue...is which party should prevail on the entire
record” regarding acquired distinctiveness, and it is
therefore unnecessary to discuss the shifting of burdens or
whether prima facie cases have been made out by either
party. Id., 6 USPQ2d at 1006. However, under this
analysis, the “ultimate burden of persuasion” is on the
applicant. Id. Finally, the standard for applicant to meet
is preponderance of the evidence, “although logically that
standard becomes more difficult to meet as the mark’s
descriptiveness increases.” Id., 6 USPQ2d at 1008.
In securing the examining attorney’s approval of the
involved mark for publication, applicant based its claim of
acquired distinctiveness on two declarations. Chris
Opposition No. 91158777
8
Clevers, applicant’s vice president, claimed in his first
declaration that “ALGAE WAFERS has become distinctive of the
goods throughout [sic] the substantially exclusive and
continuous use in commerce by [applicant] for at least the
five years commencing at least as early as January 1, 1992
preceding the filing date of the application.” In response,
the examining attorney maintained that the mark sought to be
registered is “highly descriptive” and, therefore, the
allegation of five years use alone was insufficient evidence
of distinctiveness. Applicant was allowed an opportunity to
submit actual evidence to prove the distinctiveness of the
designation in commerce. Applicant followed up by
submitting a second declaration of Mr. Clevers wherein he
additionally set forth advertising expenditures and expenses
associated with consumer samplings. The declaration was
accompanied by examples of advertisements showing how the
designation ALGAE WAFERS is actually used in commerce. This
showing persuaded the examining attorney and the mark was
published for opposition.
As indicated above, descriptiveness is not an issue
given applicant’s resort to Section 2(f) of the Trademark
Act. Nonetheless, it is necessary to determine, at the
outset, the degree of descriptiveness of ALGAE WAFERS
(“WAFERS” disclaimed) for tropical fish foods, given that
this determination will have a direct bearing on the amount
Opposition No. 91158777
9
of evidence necessary to show acquired distinctiveness.
Id.; and In re Merrill, Lynch, Pierce, Fenner & Smith, Inc.,
828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir. 1987).
Opposer’s position is that applicant has conceded to
the examining attorney’s view that its mark is “highly
descriptive” because applicant “did not appeal that
determination.” Thus, opposer argues, the Board and the
parties essentially are bound by this determination.
Opposer’s view is ill founded. An applicant may, upon
final refusal by the examining attorney, appeal to the
Board; a second refusal on the same grounds may be
considered as final by the applicant for purpose of appeal.
See Trademark Rule 2.141. Here, there was no basis for
appeal because there was no final refusal or second refusal
on the same grounds.
Upon our review of the record, we find that the mark is
highly descriptive. In its advertisements and product
literature, applicant describes its product as a “sinking
wafer” used “to feed all algae eaters.” And, as indicated
earlier, algae comprise 3% of the product’s ingredients. In
some of its product brochures, applicant highlights the
following feature: “Through advanced manufacturing
technology, this algae wafer will not dissolve or cloud the
water.” (Clevers ex. no. 29, Bates no. HK 000037; and
Clevers ex. no. 47, Bates no. HK 000185).
Opposition No. 91158777
10
Given the commonly understood meanings of the words
“algae” and “wafers,” combined with applicant’s own
description of its product as “this algae wafer,” the
designation sought to be registered is, at the very least,
highly descriptive as applied to the goods. Applicant’s
product is tropical fish food comprising, in part, algae,
and in the form of a wafer used to feed algae eaters.
Having determined that applicant’s mark is highly
descriptive as used in connection with its goods, we now
turn to the sufficiency of the evidence in support of
applicant’s claim of acquired distinctiveness.
Acquired distinctiveness and buyer recognition is to be
tested in an opposition proceeding as of the date the issue
is under consideration. The filing date is not a cutoff for
any evidence developing after that time. Evidence of sales
and advertising after the filing date of the application
will be considered. McCormick & Co. v. Summers, 354 F.2d
668, 148 USPQ 272 (CCPA 1966); Harsco Corp. v. Electrical
Sciences, Inc., 9 USPQ2d 1570 (TTAB 1988); and Kaiser
Aluminum & Chemical Corp. v. American Meter Co., 153 USPQ
419 (TTAB 1967).
Opposer’s first attack on applicant’s Section 2(f)
claim is based on opposer’s contention that applicant’s use
has not been substantially exclusive. In this connection,
opposer points to its own use of ALGAE WAFERS, as well as to
Opposition No. 91158777
11
the uses of the same designation by three other entities in
the industry.
We agree with applicant’s assessment that the
cumulative effect of opposer’s use and the third-party uses
of ALGAE WAFERS is inconsequential and, thus, applicant’s
use qualifies as “substantially exclusive” as required under
Section 2(f). Opposer’s predecessor in interest began
selling fish food under ALGAE GALORE in the mid 1990s before
switching to ALGAE WAFERS sometime in the late 1990s.3
Opposer has failed, however, to indicate the level of sales
or advertising of its predecessor; thus, we have no way of
confirming opposer’s claim that the predecessor’s use of
either ALGAE GALORE or ALGAE WAFERS was “substantial.”
(Brief, p. 16). Since 2000, opposer has used the
designation ALGAE WAFERS in connection with its algae-based,
wafer-shaped tropical fish food. Total sales are very
modest. Likewise, total expenditures for advertisements in
trade magazines and for appearances at trade shows are very

3 Opposer contends that its predecessor used ALGAE GALORE WAFERS
while applicant argues that the designation used was ALGAE
GALORE. Although Mr. Cole, one of opposer’s founders, identified
the designation as ALGAE GALORE WAFERS (as reflected in some
distributor price lists), the advertisements and product
packaging for the product (see, e.g., Clevers ex. nos. 36, 37 and
55) show actual use of ALGAE GALORE. Regardless of whether the
predecessor used ALGAE GALORE WAFERS as opposer contends, or
ALGAE GALORE as applicant contends, there is no corroborating
evidence to show the extent of use by the predecessor. Thus,
this use is of little moment in our analysis.
Opposition No. 91158777
12
modest.4 Opposer also has distributed catalogs and product
brochures.
Opposer also identified uses of ALGAE WAFERS by
three third parties, namely PETsMART, Tropical and
jehmco.com. Opposer has not identified any other third-
party uses of ALGAE WAFERS in the trade; and applicant has
stated that it is unaware of any uses other than opposer’s
and its predecessor’s, and PETsMART’s use. As for the use
by PETsMART, this party ceased use of ALGAE WAFERS in 2003
after applicant’s objection thereto. Moreover, in each of
these three examples cited by opposer, there is no evidence
bearing on the extent of these uses.
From the evidence of record, we conclude that opposer’s
use and the third-party uses have not been substantial and,
thus, do not nullify applicant’s claim of distinctiveness.
Applicant was the exclusive user of ALGAE WAFERS for several
years prior to its application in May 2000, and prior to
opposer’s adoption of the same designation. To the extent
that opposer’s predecessor may have used ALGAE WAFERS, the
record is devoid of any evidence as to the extent of such
use. Further, opposer’s own use of ALGAE WAFERS has been

4 These advertisements feature products other than the one sold
under ALGAE WAFERS, and we suspect that applicant likewise
promotes these other products at its trade shows. In any event,
there is no breakdown of the expenses relative to the promotion
of ALGAE WAFERS only.
Opposition No. 91158777
13
relatively modest. And, there is no evidence bearing on the
extent of the third-party uses.
Thus, we find that applicant enjoyed a period of
exclusive use, followed by use at a level no less than
substantially exclusive as contemplated by Section 2(f).
These years of exclusive use or substantially exclusive use
do not necessarily compel, however, a finding of acquired
distinctiveness.
Opposer’s second attack is based on its claim that
ALGAE WAFERS is highly descriptive and, thus, applicant’s
evidence is insufficient to establish acquired
distinctiveness. Applicant’s exclusive or substantially
exclusive and continuous use since 1992 is a fairly lengthy
period, but not necessarily conclusive or persuasive on the
Section 2(f) showing. In prior cases involving usage of
comparable or even longer duration, and with some of these
uses even being coupled with significant sales and
advertising expenditures (not to mention direct evidence of
customers’ perceptions), the Board or its primary reviewing
court found a failure to demonstrate acquired
distinctiveness within the meaning of Section 2(f). See In
re Andes Candies, Inc., 478 F.2d 1264, 178 USPQ 156 (CCPA
1973); and In re Packaging Specialists, Inc., 221 USPQ 917,
920 (TTAB 1984).
Opposition No. 91158777
14
Applicant’s sales over a nine-year period suggest that
applicant has enjoyed some modest degree of success with its
ALGAE WAFERS product. It is difficult, however, to
accurately gauge the level of this success in the tropical
fish food industry in the absence of additional information
such as applicant’s market share or how the ALGAE WAFERS
product ranks in terms of sales in the trade. The sales
figures for nine years, standing alone and without any
context in the trade, are not so impressive as to elevate
applicant’s highly descriptive designation to the status of
a distinctive mark. In any event, the sales figures show
only the popularity of applicant’s product, not that the
relevant customers of such products (namely, ordinary
consumers) have come to view the term ALGAE WAFERS as
applicant’s source-identifying mark. In re Candy Bouquet
International, Inc., 73 USPQ2d 1883, 1889 (TTAB 2004).
Advertising expenditures over a ten-year period are a
modest sum. It is noted that the advertisements showing
applicant’s ALGAE WAFERS product also feature other products
sold by applicant. Likewise, although applicant incurs
expenses to attend trade shows, it is likely that these
expenses include the promotion of other products at the
trade shows. Thus, it is uncertain how much of the
advertising and trade show expenses are allocated to
Opposition No. 91158777
15
products sold under ALGAE WAFERS.5 Further, we note the
hundreds of thousands of product samples that applicant has
distributed over a six-year period, but we also note that
this cost is fairly minimal. While there is no question
that applicant has spent money to promote its product under
the designation ALGAE WAFERS, the numbers only suggest the
efforts made to acquire distinctiveness, and do not
demonstrate that the efforts have borne fruit. In re
Pennzoil Products Co., 20 USPQ2d 1753 (TTAB 1991).
The issue here is the achievement of distinctiveness.
Applicant’s evidence falls short of establishing this under
Section 2(f). Given the highly descriptive nature of ALGAE
WAFERS for wafers used to feed algae eating fish, much more
evidence than what applicant has submitted, especially in
the form of direct evidence from customers, would be
necessary to show that the designation has become
distinctive of applicant’s goods. So as to be clear, the
record is devoid of direct evidence that ordinary consumers
view ALGAE WAFERS as a distinctive source indicator for
applicant’s goods. As stated earlier, the greater the
degree of descriptiveness, the greater the evidentiary
burden on the applicant to establish acquired
distinctiveness. The evidence of record does not persuade

5 Even if the entire amount spent on advertising and trade shows
were in furtherance of promoting only the ALGAE WAFERS product,
it would not change the result herein.
Opposition No. 91158777
16
us that the public associates the designation ALGAE WAFERS
with applicant, or recognizes the designation as a mark
identifying goods emanating from applicant.
We conclude that applicant’s designation is, at the
very least, highly descriptive as used in connection with
applicant’s goods, and that the evidence is insufficient to
support registration on the Principal Register under Section
2(f).
Fraud
Opposer has alleged that applicant has committed fraud
on the Office in connection with its application and
supporting declarations of acquired distinctiveness under
Section 2(f). More specifically, opposer points to
applicant’s failure to use the standard language as
indicated in TMEP § 1212.05(d). Opposer alleges that “[i]n
an apparent attempt to confuse and deceive the examining
attorney, [applicant] instead threw in a reference to five
years use amongst other almost incomprehensible verbiage,
misrepresenting the true nature and extent of its use of the
ALGAE WAFERS name.” (Brief, p. 22). As a second basis for
its fraud claim, opposer points to the failure of applicant
in its declarations to disclose opposer’s “continuous and
more than inconsequential” use, as well as the use by others
of ALGAE WAFERS, despite applicant’s knowledge of same.
Thus, according to opposer, applicant could not claim that
Opposition No. 91158777
17
its use was substantially exclusive; had applicant not
withheld this information, opposer contends, the Office
would have refused registration.
Applicant maintains that its statements were true, made
in good faith and not intended to deceive the Office.
Applicant, while readily conceding that its statement of
acquired distinctiveness does not mirror the specific
language of the TMEP, claims that its declarations are
absolutely true. Applicant contends that it has been either
the exclusive user or a substantially exclusive user of
ALGAE WAFERS for fish food. According to applicant, it had
a good faith belief that any use by opposer of ALGAE WAFERS
was inconsequential, infringing, or both. Mr. Clevers
testified at trial as to the veracity of his statements made
in the declarations.
Fraud in obtaining a trademark registration occurs
“when an applicant knowingly makes false, material
representations of fact in connection with his application.”
Torres v. Cantine Torresella S.r.l., 808 F.2d 46, 1 USPQ2d
1483, 1484 (Fed. Cir. 1986). Thus, to constitute fraud on
the USPTO, the statement must be (1) false, (2) a material
representation and (3) made knowingly. Mister Leonard Inc.
v. Jacques Leonard Couture Inc., 23 USPQ2d 1064, 1065 (TTAB
1992). The false material representation of fact may be one
the applicant made knowingly or one that it should have
Opposition No. 91158777
18
known to be false. See Medinol Ltd. v. Neuro Vasx Inc., 67
USPQ2d (TTAB 2003) [“A trademark applicant commits fraud in
procuring a registration when it makes material
representations of fact in its declaration which it knows or
should know to be false.”].
Fraud must be proven with clear and convincing
evidence, and any doubt must be resolved against a finding
of fraud. See Giant Food, Inc. v. Standard Terry Mills,
Inc., 229 USPQ 955 (TTAB 1986). See also Smith
International, Inc. v. Olin Corp., 209 USPQ 1033, 1044 (TTAB
1981) [“The very nature of the charge of fraud requires that
it be proven ‘to the hilt’...There is no room for
speculation, inference or surmise and, obviously, any doubt
must be resolved against the charging party.”].
Furthermore, fraud will not lie if it can be proven that the
statement, though false, was made with a reasonable and
honest belief that it was true. Woodstock’s Enterprises
Inc. (California) v. Woodstock’s Enterprises Inc. (Oregon),
43 USPQ2d 1440 (TTAB 1997).
As to the form of Section 2(f) declarations, a claim of
acquired distinctiveness based on five years use generally
reads as follows: “The mark has become distinctive of the
goods through the applicant’s substantially exclusive use in
commerce for at least the five years immediately before the
date of this statement.” Use of the precise statutory
Opposition No. 91158777
19
wording is desirable, but variations may be accepted if they
do not affect the essential allegations. TMEP § 1212.05(d).
We see no fatal problem with the following language
used by Mr. Clevers: “ALGAE WAFERS has become distinctive
of the goods throughout [sic] the substantially exclusive
and continuous use in commerce by [applicant] for at least
the five years commencing at least as early as January 1,
1992 preceding the filing date of the application.” We find
that the two declarations at issue contain all of the
essential elements of an acceptable claim under Section
2(f). Id. Contrary to the criticism leveled by opposer, we
find the declarations essentially set forth allegations that
applicant’s first use dates back to January 1, 1992, a date
that is at least five years prior to the filing date of the
involved application, and that such use has been
substantially exclusive and continuous. In no way would we
characterize applicant’s language as an “attempt to confuse
and deceive the examining attorney” as opposer charges.
Further, we found above that applicant’s use has been
substantially exclusive as required by the statute. As is
apparent from our earlier discussion regarding the
inconsequential use by opposer and third parties of ALGAE
WAFERS, applicant committed no fraud in not disclosing these
uses. Applicant was not even aware of two of the third-
party uses. In the words of Professor McCarthy:
Opposition No. 91158777
20
Fraud in a § 2(f) declaration claiming
the existence of secondary meaning is
possible but very difficult to prove.
The mere fact that some other uses of
the same mark existed does not mean that
the declaration was fraudulent because
applicant’s use was not “substantially
exclusive.” If such uses were either
inconsequential or were infringing,
there was no fraud.

McCarthy on Trademarks and Unfair Competition, § 15:62 (4th
ed. 2007). See L.D. Kichler Co. v. Davoil Inc., 192 F.3d
1349, 52 USPQ2d 1307, 1309 (Fed. Cir. 1999) [In noting that
the five years of use may be substantially exclusive, the
Court states “[t]his makes allowance for use by others which
may be inconsequential or infringing and which therefore
does not necessarily invalidate the applicant’s claim.”]
See also Heaton Enterprises of Nevada Inc. v. Lang, 7 USPQ2d
1842, 1849 (TTAB 1988) [Where a party “believed and was
claiming that it had a right superior to that of other
parties who might be using it, fraud is not shown by proof
that [defendant] was aware of those other uses.”].
Accordingly, the fraud claim fails.
Decision: The opposition is dismissed on the ground of
fraud. The opposition is sustained on the ground that ALGAE
WAFERS for fish foods is highly descriptive, and that the
evidence in support of acquired distinctiveness is
insufficient. Accordingly, registration to applicant is
refused.