San Miguel Pure Foods Company, Inc.

Trademark Trial and Appeal Board

Nov 29, 2018

No. 87211889 (T.T.A.B. Nov. 29, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 29, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re San Miguel Pure Foods Company, Inc.
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Serial No. 87211884
Serial No. 87211889
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Robert J. Kenney and Michael T. Smith of Birch, Stewart, Kolasch & Birch, LLP,
for San Miguel Pure Foods Company, Inc.
Karen K. Bush, Trademark Examining Attorney, Law Office 108,
Steven Berk, Managing Attorney.
_____

Before Wellington, Greenbaum, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
San Miguel Pure Foods Company, Inc. (“Applicant”) filed two applications seeking
registration on the Principal Register of the mark B-MEG INTEGRA in standard
characters, and in stylized form as displayed below,

Serial Nos. 87211884 and 87211889
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both for “Animal feeds, namely, poultry feeds, excluding dietetic food and substances
adapted for medical or veterinary use” in International Class 31.1
In each application, 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 Applicant’s mark, when used in connection with Applicant’s goods,
so resembles two registrations, owned by one registrant, for (1) the standard
character mark INTEGRA-PROTECT for goods including “Foodstuffs for animals;
Dog biscuits; Beverages for pets; Animal litter” in International Class 31, and (2) the
stylized mark ANIMONDA HIGH QUALITY PETFOOD INTEGRA PROTECT
(HIGH QUALITY PETFOOD disclaimed), displayed as , for
goods including “Foodstuffs for animals; dog food; cat food; pet food” in International
Class 31, as to be likely to cause confusion, mistake or deception.2

1 Application Serial Nos. 87211889 and 87211884, respectively, were filed on October 21,
2016, based upon Applicant’s allegation of a bona fide intention to use the mark in commerce
under Section 1(b) of the Trademark Act. The stylized mark (Application Serial No.
87211884) is described as follows: “The mark consists of the stylized yellow wording ‘B-MEG’
within a blue oval and the stylized red wording ‘Integra’ beneath the blue oval.” The colors
yellow, blue, and red are claimed as a feature of the mark.
2 Registration No. 4719088 issued on April 14, 2015, and Registration No. 4698428 issued on
March 10, 2015. The registrations also identify other goods in other International Classes,
but we need not address them. It is sufficient for a refusal based on likelihood of confusion
that relatedness is established for any item encompassed by the identification of goods in a
particular class in the applications and registrations. Tuxedo Monopoly, Inc. v. Gen. Mills
Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
The stylized mark (Registration No. 4698428) is described as follows: “The mark consists of
four literal elements: ‘ANIMONDA, HIGH QUALITY PETFOOD, INTEGRA’, and
‘PROTECT’. The literal elements ‘ANIMONDA’ AND ‘HIGH QUALITY PETFOOD’ on a
substantially rectangular field with a decorative border. In the literal element ‘ANIMONDA’,
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When the refusal was made final in each application, Applicant appealed and
requested reconsideration. After the Examining Attorney denied the requests for
reconsideration, the appeals were resumed. We consolidate the appeals and decide
them in a single opinion because they involve common issues of law and fact and
identical records. See In re Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012) (Board
sua sponte consolidated two appeals); In re Bacardi & Co. Ltd., 48 USPQ2d 1031,
1033 (TTAB 1997) (Board sua sponte considered appeals in five applications together
and rendered single opinion).3
We affirm the refusal to register in each application.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
In each application, Applicant attached to its August 2, 2017 Response to Office
Action a printout from the TESS database listing 260 registered and pending
INTEGRA-formative marks for various goods and services. In her September 21, 2017
Final Office Action, the Examining Attorney objected to the TESS printouts,
indicating that the mere submission of lists without copies of the corresponding listed

the letter ‘O’ is in a different shade than the letters ‘A’,’N’,’I’,’M’,’N’,’D’, and ‘A’. The literal
element phrase ‘HIGH QUALITY PETFOOD’ is located below the literal element
‘ANIMONDA’. The literal element ‘INTEGRA’ is located below the substantially rectangular
field and is surrounded by a geometric design with a double-lined border. The literal element
‘PROTECT’ is located below the geometric double-lined border.” Color is not claimed as a
feature of the mark.
3 Unless otherwise noted, all references to TTABVUE are to the appeal in Application Serial
No. 87211889 for the standard character mark B-MEG INTEGRA, and all references to the
Trademark Status & Document Retrieval database (“TSDR”) are to the prosecution history
of that same application, in .pdf format.
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registrations is insufficient to make the registrations of record. The Examining
Attorney maintained this objection in her brief.
The objection is sustained. To make a third-party registration of record, a copy of
the registration, either a copy of the paper USPTO record, or a copy taken from the
electronic records of the Office, should be submitted. In re Compania de Licores
Internacionales S.A., 102 USPQ2d 1841, 1843 (TTAB 2012); In re Jump Designs LLC,
80 USPQ2d 1370, 1372-73 (TTAB 2006). Mere listings of registrations are not
sufficient to make the registrations of record. In re Hoefflin, 97 USPQ2d 1174, 1177
(TTAB 2010). Accordingly, we have not considered the TESS printouts in making our
decision.
II. Applicable Law
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in 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 Co., 315 F.3d 1311,
65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods or services. In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-
46 (Fed. Cir. 2004); 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.”); see also In re i.am.symbolic, llc, 866 F.3d 1315, 123
USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers
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all DuPont factors for which there is record evidence but ‘may focus … on dispositive
factors, such as similarity of the marks and relatedness of the goods’”) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002)). We have considered each du Pont factor that is relevant or for which there
is evidence of record. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78
USPQ2d 1944, 1947 (Fed. Cir. 2006) (even within du Pont list, only factors that are
“relevant and of record” need be considered).
A. Relatedness of the Goods and Channels of Trade
With regard to the goods and channels of trade, we must make our determinations
under these factors based on the goods as they are identified in the applications and
the cited registrations. See In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531, 1534
(Fed. Cir. 1997); see also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746
F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard
Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v.
Hous. Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
The cited registrations identify “foodstuffs for animals” and the applications
identify “animal feeds, namely, poultry feeds, excluding dietetic food and substances
adapted for medical or veterinary use.” Merriam-Webster defines “foodstuff” as “a
substance with food value,” and “feed” as “food for livestock; specifically: a mixture or
preparation for feeding livestock.”4 Based on these definitions, poultry feed is a type

4 April 6, 2018 Denial of Request for Reconsideration, TSDR pp. 5-6.
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of “foodstuff for animals” because it is “a substance with food value” given to poultry.
The broadly worded “foodstuffs for animals” in the registrations thus encompass, and
are legally identical to, “poultry feeds,” including the “poultry feeds, excluding dietetic
food and substances adapted for medical or veterinary use” identified in the
applications. See In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB
2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily
encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”).
Further, given the legal identity of the goods in part, and the lack of restrictions
or limitations in the applications and registrations as to their nature, channels of
trade, or classes of purchasers, we presume that the goods travel through the same
channels of trade (e.g., animal feed stores) and that they are offered to the same
potential purchasers (e.g., ordinary consumers who own or work with animals). See
In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (legally
identical goods are presumed to travel in same channels of trade to same class of
purchasers); 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).
These du Pont factors weigh heavily in favor of a finding of likelihood of confusion.
B. The similarity or dissimilarity of the marks
Next, we compare Applicant’s and Registrant’s marks “in their entireties as to
appearance, sound, connotation and commercial impression.” Viterra, 101 USPQ2d
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at 1908 (quoting du Pont, 177 USPQ at 567); see also Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(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).
The marks “‘must be considered … in light of the fallibility of memory ….’” In re
St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting
San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196
USPQ 1 (CCPA 1977)). The proper focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific impression of
trademarks. See St. Helena Hosp., 113 USPQ2d at 1085; Geigy Chem. Corp. v. Atlas
Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971). Because the goods
are “foodstuffs for animals” and “poultry feeds” with no restrictions or limitations as
to prices or classes of consumers, the average customer is an ordinary consumer who
owns or cares for animals.
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 and considered
piecemeal; rather, it must be considered as a whole in determining likelihood of
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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. For instance, as the Federal Circuit has observed, “[t]hat
a particular feature is descriptive or generic with respect to the involved goods or
services is one commonly accepted rationale for giving less weight to a portion of a
mark ….” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
In addition, and of particular relevance here, where the parties use their marks
in connection with legally identical goods, the similarity between the marks
necessary to support a determination that confusion is likely declines. Bridgestone
Ams. Tire Operations LLC v. Fed. Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1064 (Fed.
Cir. 2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698 (Fed. Cir. 1992).
Applicant argues that the Examining Attorney improperly focused on the shared
“descriptive or highly suggestive”5 term INTEGRA without giving due consideration
to the additional terms in each mark, and the stylizations in two of the marks. The
Examining Attorney focuses on the similarities between Applicant’s and Registrant’s
marks due to the shared term INTEGRA, which she contends is the dominant term
in each of the marks.

5 7 TTABVUE 7-8.
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1. Strength of INTEGRA
Before we consider the marks in their entireties, we address Applicant’s argument
that the shared term INTEGRA is conceptually weak because it is “descriptive or
highly suggestive” of the identified goods.6
Registrant’s marks are registered on the Principal Register without any claim of
acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. § 1052(f), or a
disclaimer of the term INTEGRA. Marks that are merely descriptive of the goods or
services may not be registered on the Principal Register absent a showing of acquired
distinctiveness under Section 2(f). As such, Applicant’s contention that INTEGRA is
merely descriptive of the identified goods constitutes an impermissible collateral
attack on the cited registrations. As the Board explained in In re Fat Boys Water
Sports LLC, 118 USPQ2d 1511, 1517 (TTAB 2016), “the validity of a cited registration
cannot be challenged in an ex parte proceeding.” See also In re Fiesta Palms LLC, 85
USPQ2d 1360, 1363 (TTAB 2007) (“inasmuch as the cited mark is registered on the
Principal Register, we must assume that it is at least suggestive and we cannot
entertain applicant's argument that the registered mark is descriptive of registrant's
services.”).
Applicant contends that INTEGRA is “highly suggestive” of the identified goods
based on a definition from an online Latin dictionary of the term “integra” as
“untouched, entire, whole, complete,” and a definition from Merriam-Webster.com of

6 Id.
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the term “integral” as “essential to completeness.”7 Even if consumers are aware of
the meaning of the Latin term “integra,” and even if they believe, as Applicant
asserts, that the term “connotes essential and complete animal foods,”8 the record
does not support a finding that the term “integra” is more than minimally suggestive
of a feature, characteristic or quality of poultry feeds or other foodstuffs for animals.
In this vein, as the Examining Attorney points out, there is no evidence of third-party
use or registration of the term INTEGRA for the same or similar goods.9 Cf. Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir.
2015) (weakness shown by at least 26 third-party uses and registrations containing
the same phrase for the same services); Jack Wolfskin Ausrustung Fur Draussen
GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
1129, 1136 (Fed. Cir. 2015) (third-party weakness evidence characterized as
“voluminous”).
2. INTEGRA is the dominant element in each mark
Looking at the marks in their entireties, the literal term INTEGRA stands out as
the most prominent element, conveying the strongest commercial impression, in each
mark.

7 Applicant attached to its briefs printouts of the definitions. 7 TTABVUE 11-15.
8 7 TTABVUE 7-8.
9 9 TTABVUE 7.
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Considering first Registrant’s stylized mark , INTEGRA is the
largest literal term, centrally positioned in a double-lined geometric border. The
placement of the smaller words ANIMONDA above the even smaller words HIGH
QUALITY PETFOOD in a rectangle on top of the border focuses the eye on the word
INTEGRA, as does the placement of the slightly smaller word PROTECT below the
border. The laudatory phrase HIGH QUALITY PETFOOD is descriptive of
Registrant’s identified “foodstuffs for animals,” and appropriately has been
disclaimed. See Dixie Rests., 41 USPQ2d at 1533-34. Descriptive matter typically is
less significant or less dominant when comparing marks. See Cunningham v. Laser
Golf Corp., 55 USPQ2d at 1846 (quoting Nat’l Data Corp., 224 USPQ at 752 (the
“descriptive component of a mark may be given little weight in reaching a conclusion
on likelihood of confusion”)). We find that to be the case here, where consumers likely
will view HIGH QUALITY PETFOOD in Registrant’s mark in its descriptive sense,
rather than as a source-distinguishing element.
INTEGRA also is the largest and most eye-catching term in Applicant’s stylized
mark . The size, placement and red coloring of the term INTEGRA
overshadows the term B-MEG, which appears in yellow coloring in the middle of a
blue oval above the letters TEGR in the word INTEGRA. While the stylization of the
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wording in each of these marks is different, the dominant word INTEGRA is identical,
resulting in marks with similar connotations and commercial impressions.
Turning to Registrant’s standard character mark INTEGRA-PROTECT, unlike
the arbitrary term INTEGRA, the term PROTECT is a common English word
meaning “defend” or “guard.”10 As applied to foodstuffs for animals, the term
PROTECT in Registrant’s mark INTEGRA-PROTECT suggests a desired result, such
as defending or guarding the animals from disease. The placement of the term
INTEGRA in the initial position of Registrant’s mark INTEGRA-PROTECT enhances
the prominence of that term. See Palm Bay Imps., 73 USPQ2d at 1692; Presto Prods.,
Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first
part of a mark which is most likely to be impressed in the mind of a purchaser and
remembered”).
Last, we consider Applicant’s standard character mark B-MEG INTEGRA. As
with the term INTEGRA, there is no evidence that the term B-MEG has any meaning
or significance when applied to the identified goods. We acknowledge that INTEGRA
is the trailing term in this mark. Nonetheless, we find that in this case, consumers
may simply perceive B-MEG as a modifier, and mistakenly believe the mark B-MEG
INTEGRA indicates a variant or line extension of Registrant’s INTEGRA-dominated
marks. Therefore, even assuming that B-MEG also is an arbitrary term, we find that

10 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), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016). We take judicial notice of this
dictionary entry from dictionary.com, based on the RANDOM HOUSE UNABRIDGED
DICTIONARY (2018), accessed November 27, 2018.
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Applicant’s standard character mark B-MEG INTEGRA is confusingly similar to
Registrant’s marks. Cf. Palm Bay Imps., 73 USPQ2d at 1692.
In making this finding, we are mindful that Applicant’s standard character mark
B-MEG INTEGRA is not limited to any particular depiction. The rights associated
with a standard character mark reside in the wording and not in any particular
display. In re RSI Sys., LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy
Prods. Corp., 8 USPQ2d 2012, 2015 (TTAB 1988). We must consider Applicant’s
standard character mark “regardless of font style, size, or color” Citigroup Inc. v.
Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011),
including iterations emphasizing the trailing term INTEGRA, as, for example, in the
applied-for stylized mark .
For these reasons, we find that INTEGRA is the dominant term in each mark, and
accordingly, it is entitled to more weight in our analysis. In coming to this conclusion,
we do not discount the presence of the additional wording in each mark or the
stylization in two of the marks. However, for the reasons discussed above, we find
that the term INTEGRA in each mark is more likely to be remembered by consumers
than the other elements of the marks.
When the marks are viewed in their entireties, we find them to be more similar
overall than they are different. This du Pont factor also favors a finding that confusion
is likely.
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C. Conclusion
Having considered all the evidence and arguments bearing on the relevant du
Pont factors, we conclude that the identified goods are legally identical in part and
move through the same channels of trade to the same classes of purchasers, the
marks are more similar than they are different overall, and the shared term
INTEGRA has no real significance in relation to the identified goods. Ultimately,
Applicant’s marks are likely to cause confusion with the cited registered marks when
used on the goods identified in the applications.
Decision: The Section 2(d) refusal to register each of Applicant’s marks is
affirmed.