Sammy Snacks, Inc.

Trademark Trial and Appeal Board

Oct 7, 2015

No. 86384029 (T.T.A.B. Oct. 7, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: October 7, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Sammy Snacks, Inc.
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Serial No. 86384029
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Dale R. Jensen, Esq.
for Sammy Snacks, Inc.
Tara L. Bhupathi, Trademark Examining Attorney, Law Office 102,
Mitchell Front, Managing Attorney.
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Before Kuhlke, Ritchie and Lykos,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:
On September 3, 2014, Sammy Snacks, Inc. (“Applicant”) filed an application to
register on the Principal Register the mark A Modern Ancestral Diet in standard
characters for “cat food; cat treats; dog food; dog treats; pet food; pet treats” in
International Class 31.1 The application includes a disclaimer of the word “Diet”
apart from the mark as shown as well as a claim of ownership of Registration No.

1 Application Serial No. 86384029, filed under Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a), alleging October 1, 2012 as the date of first use anywhere and in commerce.
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4359319 for the mark on the Principal Register displayed below for the same goods
as identified in the application.2

The Trademark Examining Attorney 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 so resembles the registered mark THE ANCESTRAL DIET
MEETS MODERN NUTRITION also in standard characters for “pet food” in
International Class 31,3 that, when used on or in connection with Applicant’s
identified goods, it is likely to cause confusion or mistake or to deceive. The
registration likewise includes a disclaimer of the word “DIET.”
Applicant has appealed the final refusal to register the mark. The appeal is fully
briefed. For the reasons set forth below, we affirm the Section 2(d) refusal.
Likelihood of Confusion Analysis
We base our determination under Section 2(d) on an analysis of all of the
probative evidence of record bearing on a likelihood of confusion. In re E. I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“du Pont”). 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

2 Registered on June 25, 2013. Color is not claimed as a feature of the mark.
3 Registration No. 3722281, registered on December 8, 2009 on the Principal Register,
alleging April 30, 2007 as the date of first use anywhere and in commerce; Sections 8 and
15 affidavits accepted and acknowledged.
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considerations are the similarities between the marks and the similarities between
the goods and/or services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d
1944 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976). These factors and others are discussed below. See
M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944 (Fed. Cir.
2006) (even within du Pont list, only factors that are “relevant and of record” need
be considered).
The Goods and Channels of Trade
We commence our analysis with a comparison of the goods identified in
Applicant’s application vis-à-vis the goods identified in the cited registration. See
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161 (Fed. Cir. 2014); Octocom Systems, Inc. v. Houston Computers Services
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). At the outset we note
that both Applicant’s identification of goods and the identification of goods in the
cited registration include the exact term “pet food,” and that Applicant’s
identification includes additional derivatives thereof, such as “cat food” and “dog
food.”4 As such, the goods are in part identical.

4 The Examining Attorney made of record the following dictionary definitions of “cat” and
“dog” obtained from the online American language version of the MacMillan Dictionary at
www.macmillandictionary.com/american, which show, in relevant part, that they are often
kept as pets.
Cat
1. an animal with soft fur, a long thin tail and whiskers, that people keep as a pet
or for catching mice. …
Dog
1. an animal kept as a pet, for guarding buildings, or for hunting. …
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Because the identifications of goods in the application and registration are in
part identical and unrestricted as to trade channels, we must also presume that
Applicant’s and Registrant’s identical products travel in the same ordinary trade
and distribution channels and will be marketed to the same potential consumers.
See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even
though there was no evidence regarding channels of trade and classes of consumers,
the Board was entitled to rely on this legal presumption in determining likelihood of
confusion); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA
1968) (where there are legally identical goods, the channels of trade and classes of
purchasers are considered to be the same); American Lebanese Syrian Associated
Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB
2011). The record shows that the ordinary trade channels for pet food are retail
stores as well as pet food manufacturer web sites. See excerpts from the third-party
web sites The Honest Kitchen (www.thehonestkitchen.com), Halo Purely for Pets
(www.halopets.com) and Canidae Natural Pet Food Company (www.canidae.com)
submitted with Office Action dated December 14, 2015; TSDR pp. 13-17.
Accordingly, the second and third du Pont factors, the relatedness of the goods as
described in the application and registration and similarity of established, likely to
continue trade channels, both weigh in favor of finding a likelihood of confusion.

Office Action dated December 14, 2015; Trademark Status & Document Retrieval Case
Viewer (“TSDR”) for Application Serial No. 86384029, pp. 11-12.
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The Marks
Keeping in mind that where the goods are identical, the degree of similarity
between the marks necessary to support a determination that confusion is likely
declines (see Bridgestone Americas Tire Operations, LLC v. Fed. Corp., 673 F.3d
1330, 1337, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012)), we now turn to the first
du Pont likelihood of confusion factor which involves an analysis of the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. See Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir.
2005). “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) (quoting Leading Jewelers Guild, Inc. v.
LJOW Holdings, LLC, 82 USPQ2d, 1901, 1905 (TTAB 2007)). The focus is on the
recollection of the average purchaser, who normally retains a general rather than a
specific impression of trademarks. In re Binion, 93 USPQ2d 1531 (TTAB 2009);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). That being said,
our analysis cannot be predicated on dissection of the involved marks. Stone Lion,
110 USPQ2d at 1161. Rather, we are obliged to consider the marks in their
entireties. Id. 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
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and considered piecemeal; rather, it must be considered as a whole in determining
likelihood of confusion.”). Nonetheless, 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. Stone Lion, 110 USPQ2d at 1161.
Applicant argues that the marks are dissimilar in appearance, sound and
commercial impression because Registrant’s mark includes the additional words
“the”, “meets” and “nutrition.” In addition, Applicant points to the distinctions in
the order of the words “modern”, “ancestral”, and “diet” and number of syllables.
Applicant maintains that whereas Registrant’s mark conveys the impression that
an ancestral diet has been modified to have the characteristics of “modern
nutrition,” Applicant’s mark conveys the impression that its current or more
“modern” product has traits of an “ancestral diet.”
We are not convinced that the word pattern in each mark is so dissimilar that
consumers would readily distinguish the marks on this basis. Rather, both marks
engender highly similar meanings and commercial impressions. Each mark
incorporates the adjective “ancestral” as a modifier to the noun “diet.” Indeed, the
phrase “ancestral diet” appears as the dominant portion of each mark. While the
word “modern” precedes this phrase in Applicant’s mark, the fact that that this
same word appears later in Registrant’s mark as a modifier of the word “nutrition”
actually serves to heighten, not lessen, their similarity. Both “diet” and “nutrition”
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have similar meanings when considered in the context of the goods, namely food or
nourishment for pets. Note the following dictionary definitions:
nutrition noun

The process of providing or obtaining the food necessary for
heath and growth. ….

Food; nourishment.5

diet noun

The kinds of food that a person, animal or community habitually
eats.6

Hence both marks convey the meaning that Applicant’s and Registrant’s pet food
products incorporate elements of an ancestral diet but modernly engineered to meet
the desired nutritional and health needs of today’s pet. We therefore find that the
marks are similar in connotation and commercial impression. Accordingly, the first
du Pont factor also weighs in favor of finding a likelihood of confusion.
The Number and Nature of Similar Marks in Use on Similar Goods
We will now consider the number and nature of similar marks in use on similar
goods, the sixth du Pont factor. In an ex parte appeal, “[t]he purpose of [an
applicant] introducing third-party uses is to show that customers have become so
conditioned by a plethora of such similar marks that customers have been educated

5 Source: Oxford Dictionaries (online version – U.S. English) at
www.oxforddictionaries.com/us/definition/american_english. See Office Action dated
December 14, 2015; TSDR, p. 10.
6 We take judicial notice of the word “diet” from the online version of the Oxford
Dictionaries (U.S. English). 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); Threshold.TV Inc. v. Metronome Enters. Inc., 96
USPQ2d 1031, 1038 n.14 (TTAB 2010).
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to distinguish between different such marks on the bases of minute distinctions.”
Palm Bay, 73 USPQ2d at 1694. “[T]he strength of a mark is not a binary factor” and
“varies along a spectrum from very strong to very weak.” Juice Generation, Inc. v.
GS Enters. LLC, __ F.3d __, 115 USPQ2d 1671, 1675-76 (Fed. Cir. 2015) (internal
citations omitted). “The weaker [the Registrant’s] mark, the closer an applicant's
mark can come without causing a likelihood of confusion and thereby invading what
amounts to its comparatively narrower range of protection.” Id. at 1676 (internal
citations omitted).
Applicant argues that the registered mark THE ANCESTRAL DIET MEETS
MODERN NUTRITION is diluted and weak in connection with pet food due to the
existence of two registered marks for similar goods, namely, Registration No.
3524525 for the mark ANCESTRAL MODEL DIET for “dog and cat food” and
Applicant’s own previously registered mark ANCESTRY in stylized form noted
above. The third-party registration for the mark ANCESTRAL MODEL DIET has
been cancelled for failure to file a Section 8 affidavit. That leaves us with
Applicant’s previously registered mark ANCESTRY in stylized form, which, to state
the obvious, is not a third-party registration. And even if it were owned by a third
party, we cannot find based solely on the existence of this distinct, single word mark
that Registrant’s mark as a whole is descriptive or suggestive to such an extent that
it deserves less protection. We therefore deem this du Pont factor neutral.7

7 Applicant argues that its prior registration for the stylized mark ANCESTRY should be
used as evidence in favor of registration. We do not find this argument convincing.
Applicant’s previously registered mark is not a legal equivalent. Cf. In re Allegiance
Staffing, 115 USPQ2d 1319, 1324 (TTAB 2015).
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Fame of the Prior Mark
We now turn to the fifth du Pont factor, the fame of the cited mark, as argued by
Applicant. Applicant erroneously states that because the record is devoid of fame of
the registered mark, this du Pont factor weighs in favor of finding no likelihood of
confusion. The absence of such evidence has minimal significance in an ex parte
appeal. See In re Thomas, 79 USPQ2d 1021, 1027 n.11 (TTAB 2006). We therefore
agree with the Examining Attorney that this factor is neutral.
Actual Confusion and Contemporaneous Use
Applicant points to contemporaneous use of its mark for over two years with
Registrant’s mark and the absence of evidence of actual confusion. A showing of
actual confusion would of course be highly probative, if not conclusive, of a
likelihood of confusion. The opposite is not true, however. The lack of evidence of
actual confusion carries little weight. J.C. Hall Co. v. Hallmark Cards, Inc., 340
F.2d 960, 144 USPQ 435, 438 (CCPA 1965). The issue before us is the likelihood of
confusion, not actual confusion. Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d
1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (actual confusion not required).
Further, any suggestion that there has been no actual confusion between the marks
based on the coexistence of Applicant's mark and the cited registration is entitled to
little probative value in the context of an ex parte appeal. In re Majestic Distilling
Co., Inc., 65 USPQ2d at 1205. Accordingly, the seventh and eighth du Pont factors
are also neutral.
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Conclusion
In the present case, the first, second and third du Pont factors each favor a
finding of likelihood of confusion. The other du Pont factors are neutral.
After considering all of the evidence properly of record and arguments pertaining
to the du Pont likelihood of confusion factors, we find that there is a likelihood of
confusion between Applicant’s applied-for and Registrant’s registered mark as to
Applicant’s goods.
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.