Sara Lee Foods, LLCv.Greencore USA, Inc.

Trademark Trial and Appeal Board

Jun 22, 2015

No. 91198239 (T.T.A.B. Jun. 22, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: June 22, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Sara Lee Foods LLC
v.
Greencore USA, Inc.
_____

Opposition No. 91198239
_____

Randel S. Springer, Jacob S. Wharton, and Tiffany Otey of Womble Carlyle
Sandridge & Rice for Sara Lee Foods LLC.

Oliver A. Beabeau of Galbut & Galbut, P.C.
for Greencore USA, Inc.
_____

Before Quinn, Kuhlke, and Taylor
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Greencore USA, Inc. (“Applicant”) seeks to register on the Principal Register the
mark THE GRIDDLER (in standard characters) for “breakfast sandwiches” in
International Class 30.1

1 Application Serial No. 85065325, filed June 17, 2010 under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), based on an allegation of a bona fide intention to use the mark in
commerce.
Opposition No. 91198239

2

Sara Lee Foods LLC (“Opposer”) opposed registration 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 Opposer’s previously used
mark GRIDDLERS for “breakfast sandwiches” as to be likely to cause confusion.
Applicant, in its answer, essentially admitted that there is a likelihood of
confusion between the parties’ marks, but claimed that Applicant has priority of
use.
THE RECORD
Before turning to the merits, we need to address Opposer’s evidentiary objections.
The Board, in an order dated October 27, 2014, granted in part Opposer’s earlier
motion to strike (filed July 9, 2014) certain items sought to be introduced in
Applicant’s notice of reliance. (44 TTABVUE).2 Some objections were deferred until
final hearing, and Opposer raised additional objections to certain items listed in
Applicant’s amended notice of reliance. (48 TTABVUE 30-33).
We observe, at the outset, that none of the objected-to evidence is determinative
of the outcome on the issue of priority. To the extent that the material is proper
subject matter for introduction by means of a notice of reliance, we have considered

2 Citations to the record in this opinion are to the TTABVUE docket entry number and the
electronic page number where the document or testimony appears. Because the Board
primarily uses TTABVUE in reviewing evidence, the Board prefers that citations to
material or testimony in the record that has not been designated confidential include the
TTABVUE docket entry number and the TTABVUE page number. For material or
testimony that has been designated “confidential” and which does not appear on
TTABVUE, the TTABVUE docket entry number where such material or testimony is
located should be included in any citation. See Turdin v. Trilobite, Ltd., 109 USPQ2d 1473,
1476 n.6 (TTAB 2014).
Opposition No. 91198239

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the material in making our decision. Accordingly, we have considered all of the
Internet evidence (articles and archive screenshots) relied upon by Applicant, with
one exception. See Safer, Inc. v. OMS Investments, Inc., 94 USPQ2d 1031 (TTAB
2010). More specifically, the press releases listed as Exhibits 5, 7 and 8 in the
amended notice of reliance are stricken; this same evidence was, in part, the subject
of Opposer’s earlier motion to strike, to which Applicant responded by voluntarily
withdrawing this evidence from its first notice of reliance.
Although all of the remaining Internet material is admissible, we have kept in
mind Opposer’s objections on hearsay grounds in reviewing this evidence. Thus,
while the Internet material may be used to demonstrate what the documents show
on their face, the Internet material may not be used to demonstrate the truth of
what appears on the webpage. See Swiss Watch Int’l. Inc. v. Federation of the Swiss
Watch Industry, 101 USPQ2d 1731, 1735 (TTAB 2012). See also TBMP § 704.08(b)
(2014).
Applicant in its brief objects to certain testimony and documents. We see no
reason to lengthen this opinion with a discussion when the objections clearly are not
well taken. The objections are overruled. We have considered all of Opposer’s
evidence, and accorded it whatever probative value it merits.
The record consists of the pleadings (1 and 4 TTABVUE); the involved
application; testimony (2 depositions), with related exhibits, taken by Opposer (43
TTABVUE); Opposer’s pending application, Applicant’s responses to Opposer’s
requests for admission, and Applicant’s responses to Opposer’s interrogatories,
Opposition No. 91198239

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introduced by way of Opposer’s notice of reliance (36 TTABVUE); and certain of
Opposer’s responses to Applicant’s requests for admission, Opposer’s responses
(including supplemental responses) to Applicant’s interrogatories, certain excerpts
of Opposer’s website, an excerpt of Applicant’s website, excerpts of third-party
websites, and official records, all made of record in Applicant’s notices of reliance
(original and amended) (37 and 46 TTABVUE). Both parties filed briefs on the case.
STANDING
Opposer established its standing to oppose registration of the applied-for mark by
virtue of its use of the mark GRIDDLERS in connection with breakfast sandwiches.
(see discussion, infra). Further, Opposer’s pending application Serial No. 85128270
to register the mark GRIDDLERS (in standard character format) for “breakfast
sandwiches” is currently suspended on the basis of Applicant’s prior-filed
application involved herein which, according to the Examining Attorney, “if and
when it registers, may be cited against [Opposer’s] application in a refusal to
register under Section 2(d) of the Trademark Act.” (Office action, Dec. 20, 2010).
Moreover, Applicant does not dispute Opposer’s standing to bring this opposition
proceeding. Accordingly, Opposer has shown that it is not a mere intermeddler. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000);
Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982).

Opposition No. 91198239

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LIKELIHOOD OF CONFUSION
With respect to the issue of likelihood of confusion, we have, in making our
determination, considered those factors set forth in In re E.I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973) which are relevant and for which
there is evidence of record. However, we point out that likelihood of confusion is not
in dispute in this proceeding. In its brief Applicant states that “this dispute focuses
squarely on the priority afforded [the parties’] respective marks,” (51 TTABVUE 7),
and that the parties agree that the parties’ marks are likely to be confused by the
consuming public. (51 TTABVUE 20). Indeed, as earlier noted, Applicant in its
answer admitted the likelihood of confusion with Opposer’s mark.
The parties’ goods are identical: “breakfast sandwiches.” This not only weighs
heavily in favor of a finding of likelihood of confusion, but also reduces the degree of
similarity of the marks necessary to find a likelihood of confusion. In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Mighty Leaf Tea, 601
F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); In re Max Capital Group Ltd.,
93 USPQ2d 1243, 1248 (TTAB 2010). Further, Opposer’s mark GRIDDLERS is
virtually identical to Applicant’s mark THE GRIDDLER in sound, appearance,
meaning and overall commercial impression. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976) (In any likelihood of
confusion analysis, two key considerations are the similarities between the marks
and the similarities between the goods.).
Opposition No. 91198239

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We agree with the parties’ view of this issue. We find that purchasers familiar
with Opposer’s breakfast sandwiches sold under the mark GRIDDLERS would be
likely to mistakenly believe, upon encountering Applicant’s mark THE GRIDDLER
for breakfast sandwiches, that the products originated from or are associated with
or sponsored by the same entity.
The crux of the parties’ controversy centers on priority of use, and we now turn
our attention to this issue.
PRIORITY OF USE
THE LAW
In order for Opposer to prevail on its Section 2(d) claim, it must prove that it has
a proprietary interest in its GRIDDLERS mark and that it obtained that interest
prior to the actual or constructive first use by Applicant. Herbko Int’l. Inc. v. Kappa
Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002); Otto Roth & Co.,
Inc. v. Universal Corp., 640 F.2d 1317, 209 USPQ 40, 43 (CCPA 1981); Automedx
Inc. v. Artivent Corp., 95 USPQ2d 1976, 1978 (TTAB 2010); Miller Brewing Co. v.
Anheuser-Busch Inc., 27 USPQ2d 1711, 1714 (TTAB 1993). “These proprietary
rights may arise from a prior registration, prior trademark or service mark use,
prior use as a trade name, prior use analogous to trademark or service mark use, or
any other use sufficient to establish proprietary rights.” Herbko Int’l., Inc. v. Kappa
Books Inc., 64 USPQ2d at 1378. To prevail Opposer must establish “that [its] term
is distinctive of [its] goods, whether inherently or through the acquisition of
secondary meaning or through ‘whatever other type of use may have developed a
Opposition No. 91198239

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trade identity.’” Towers v. Advent Software Inc., 913 F.2d 942, 16 USPQ2d 1039,
1041 (Fed. Cir. 1990), citing, Otto Roth & Co. v. Universal Food Corp., 209 USPQ at
43. For purposes of acquiring trademark rights, the mark must be used in
commerce. Section 45 of the Trademark Act, 15 U.S.C. § 1127, defines “use in
commerce” as follows: “the bona fide use of a mark in the ordinary course of trade,
and not made merely to reserve a right in a mark.” Such use occurs when the mark
“is placed in any manner on the goods or their containers or the displays associated
therewith or on tags or labels affixed thereto.” Id. Opposer must prove priority of
use by a preponderance of the evidence. See West Florida Seafood, Inc. v. Jet
Restaurants, Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994).
THE FACTS
For purposes of determining priority of use, inasmuch as Applicant did not
submit any evidence of earlier use of its mark, Applicant's date of first use is
deemed to be its constructive use date, that is, June 17, 2010, the filing date of its
intent-to-use application. See Automedx v. Artivent Corp., 95 USPQ2d at 1978;
Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1119 (TTAB 2009).
Moreover, Applicant admits that June 17, 2010 is the earliest date upon which it
can rely for purposes of priority. (Response to Requests for Admission No. 3; 36
TTABVUE 35). Accordingly, Opposer must establish first use prior to June 17,
2010.
Opposer took the testimony of two individuals: Kevin McTigue, who is a former
employee of Opposer and served as a marketing director in charge of product
Opposition No. 91198239

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development and as a brand manager for the GRIDDLERS mark (43 TTABVUE 9-
11); and Stephen Silzer, who is a senior brand manager for Opposer whose
responsibilities include managing the brand GRIDDLERS. (43 TTABVUE 155).3
Opposer is engaged in the manufacture, distribution and sale of food products.
Opposer sells and distributes its food products to retail and wholesale stores
throughout the United States, which in turn sell the products to the ultimate
consumers. Opposer’s customers include large supermarket chains and convenience
store chains, among other retailers of food products. (43 TTABVUE 10). Opposer’s
products include breakfast foods; the mark GRIDDLERS is used in connection with
Opposer’s Jimmy Dean® breakfast sandwich product.
In 2009, Opposer decided to adopt the mark GRIDDLERS for use in connection
with a new line of breakfast sandwich products. The product specifications were
finalized in mid-January 2010. (43 TTABVUE 12-13, 20-21; Opposer’s Ex. 4). The
product packaging was finalized at the same time. (43 TTABVUE 13-14, 21;
Opposer’s Exs. 1 and 2). The packaging prominently displays the mark
GRIDDLERS. Mr. McTigue testified:
So once you finalize the product and packaging, the first
thing you do is you have to start getting customer
enrollment, and so there’s two different I guess paths for
that. There’s the major sales meeting you do to introduce
all of your salespeople to it, and then you have individual
meetings with your top sales customers.
(43 TTABVUE 21).

3 The McTigue deposition appears at 43 TTABVUE 1-149; and the Silzer deposition appears
at 43 TTABVUE 150-188. Certain portions of the testimony are marked “confidential,” most
often when the witnesses refer to the names of customers and dollar figures.
Opposition No. 91198239

9

Opposer’s brand managers prepared and finalized marketing materials for
Opposer’s GRIDDLERS products and made initial sales calls on Opposer’s largest
customer accounts in January 2010. (43 TTABVUE 20-21, 26-27; Opposer’s Ex. 5).
Mr. McTigue indicated that “[A]s a normal course of business, we meet with our
very largest customers beforehand, typically during development before
finalization….because it’s really important to get the big guys on board.” (43
TTABVUE 27).
At an in-house sales team meeting held February 1-3, 2010, in San Diego,
California, Opposer introduced its GRIDDLERS line of breakfast sandwich products
to its sales team. (43 TTABVUE 21-23; Opposer’s Ex. 5). At this meeting Opposer’s
sales team was presented with various sales and marketing materials for the
GRIDDLERS products, including product sell sheets showing packaging and
product specifications numbers, and customizable PowerPoint presentations to be
used by the sales team in pitching the GRIDDLERS products to Opposer’s
customers. (43 TTABVUE 20, 26; Opposer’s Exs. 3 and 5).
Beginning at least as early as January 4, 2010, and continuing through at least
June 14, 2010, Opposer’s brand managers and Opposer’s sales team members made
sales presentations to Opposer’s customers featuring Opposer’s breakfast food
products in packaging bearing Opposer’s mark GRIDDLERS. (43 TTABVUE 21-35;
Opposer’s Exs. 2 and 6). The purpose of the sales presentations was to offer
Opposer’s GRIDDLERS products for sale to Opposer’s customers, who would in turn
purchase Opposer’s GRIDDLERS products for distribution at retail stores for
Opposition No. 91198239

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purchase by consumers. (43 TTABVUE 28-29). During sales presentations customer
representatives were presented with marketing materials and product packaging
bearing Opposer’s mark, as well as actual product samples of Opposer’s
GRIDDLERS products to taste. (43 TTABVUE 28-30; Opposer’s Exs. 2, 3 and 5).
According to Mr. McTigue, customers are not likely to buy a new product unless
they see the packaging, taste the product, and the like. (43 TTABVUE 38). Mr.
McTigue also confirmed that he was “100% certain” that these customers saw the
product packaging with GRIDDLERS prominently displayed as a trademark. Id.
Opposer’s presentations also included instructions to customers regarding the
placement of Opposer’s new products in the customers’ stores so as to maximize
sales. (43 TTABVUE 25).
Between January 4, 2010 and June 14, 2010, Opposer’s sales team made sales
presentations featuring Opposer’s GRIDDLERS products and the GRIDDLERS
marketing materials to at least 118 different customer accounts across the United
States, representing at least 49,000 retail store locations throughout the United
States. (43 TTABVUE 32-33; Opposer’s Ex. 6). Of the 118 customer accounts
presented with GRIDDLERS marketing materials prior to June 14, 2010, 91 of
those customer accounts authorized Opposer’s GRIDDLERS products to be sold in
their retail stores.4 Thus, these customers committed, prior to June 14, 2010, to
carrying Opposer’s GRIDDLERS products in their retail stores. (43 TTABVUE 30-

4 An “authorization” is essentially a commitment to sell the product in the customers’
stores. (43 TTABVUE 32-35).
Opposition No. 91198239

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35; Opposer’s Ex. 6).5 Additionally, another 25 of those 118 customer accounts were
considering authorizing the purchase of Opposer’s GRIDDLERS products on June
14, 2010. (Opposer’s Ex. 6). Accordingly, as of June 14, 2010, Opposer’s
GRIDDLERS products were on track to be sold in at least 49,000 retail store
locations across the United States. Id. This number of authorizations means that
Opposer’s GRIDDLERS products were accepted for and scheduled to be sold in
almost 60% of the available market for these products. (43 TTABVUE 55-58).
In late February 2010, Opposer placed an order with its co-manufacturer to
produce certain quantities of Opposer’s GRIDDLERS breakfast sandwiches for
distribution in connection with its ongoing sales team presentations. (43 TTABVUE
39, 44, 55; Opposer’s Exs. 2, 6 and 8). On March 1, 2010, Opposer, through one of its
distributors, began shipping sales samples of its GRIDDLERS breakfast sandwiches
to Opposer’s customers and members of Opposer’s sales team. (43 TTABVUE 52,
117-18; Opposer’s Ex. 13). Sales samples were shipped to customers and sales
team members in at least 39 different states. (43 TTABVUE 53-55; Opposer’s
Exs. 13 and 14). Every one of these samples of Opposer’s products were shipped in
packaging bearing Opposer’s mark GRIDDLERS. (43 TTABVUE 52-53; Opposer’s
Exs. 2 and 13). Opposer’s co-manufacturer was scheduled to begin the first full
production of Opposer’s GRIDDLERS breakfast sandwiches on May 17, 2010. (43
TTABVUE 47-48; Opposer’s Ex. 11).

5 As indicated earlier, Applicant’s objection to this evidence on hearsay grounds, raised in
its brief, is overruled for the reasons set forth by Opposer in its reply brief. (53 TTABVUE
17-19).
Opposition No. 91198239

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Opposer received its first purchase order for GRIDDLERS products from a
grocery store customer on May 26, 2010. (43 TTABVUE 58-63, 67-68; 43 TTABVUE
161; Opposer’s Ex. 15). The order requested 150 cases of Opposer’s GRIDDLERS
product. Id. Opposer shipped 149 cases of Opposer’s GRIDDLERS product, all in
packaging bearing Opposer’s mark, to this customer on June 1, 2010. Id.6 This
shipment arrived the next day, on June 2, 2010. (43 TTABVUE 64; 43 TTABVUE
161; Opposer’s Exs. 2, 15 and 16). Following the initial May 26, 2010 order, Opposer
received 25 additional orders for Opposer’s GRIDDLERS products between May 26,
2010 and June 11, 2010. (Opposer’s Exs. 15 and 16). These initial 26 orders were
shipped to Opposer’s customers between the dates of June 1, 2010 and June 16,
2010, all in packaging featuring Opposer’s mark GRIDDLERS. (43 TTABVUE 63-
65; Opposer’s Exs.15 and 16). These 26 orders totaled 3,494 cases of Opposer’s
GRIDDLERS products purchased and shipped in commerce prior to June 17, 2010.
(43 TTABVUE 63-66; Opposer’s Exs. 15 and 16).7 The products were shipped to at
least 17 different states throughout the United States, including Delaware, New
York, Indiana, Pennsylvania, California, Illinois, Michigan, Texas, Iowa, Minnesota,
Ohio, Virginia, Alabama, West Virginia, Arizona, Wisconsin and North Carolina; all

6 Mr. McTigue explained the discrepancy: “So we try to ship 100 percent, right. You try to
ship 100 percent of quantity ordered, but we don’t always ship 100 percent of what was
ordered … we actually shipped one less case than they ordered, which, you know, I wish we
didn’t do but we did, and so you can tell that it’s a reflection of reality, not a projection.” (43
TTABVUE 61).
7 Applicant essentially concedes, in its brief, that these shipments took place as detailed by
Opposer. (50 TTABVUE 30). Applicant now contends, however, that the shipments are de
minimis and insufficient to show use in commerce. Suffice it to say, as evident from our
decision in this case, we disagree with Applicant’s characterization of Opposer’s first use.
Opposition No. 91198239

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shipments were delivered prior to June 17, 2010. (43 TTABVUE 65; Opposer’s Exs.
15 and 16). Opposer received payment for at least one of the orders placed between
May 26, 2010 and June 11, 2010, and the payment was posted by the customer for
payment to Opposer on June 14, 2010. (43 TTABVUE 69-72; Opposer’s Exs. 15, 16
and 17).8
According to Mr. Silzer, Opposer’s GRIDDLERS products were on the shelf in at
least one grocery store (located in Evanston, Illinois) by June 14, 2010. (43
TTABVUE 163-165; Opposer’s Ex. 18 (Mr. Silzer’s email dated June 14, 2010 to the
product’s project team, accompanied by a photograph that he took, wherein he
stated “Field updates – We are NOW on shelf…See attached picture for Jimmy D’s
on shelf [at the grocery store in Evanston]”)).
ANALYSIS
As set forth in the Board’s denial of Opposer’s motion for summary judgment:
The record does not demonstrate precisely when opposer
actually shipped its GRIDDLERS product, and
specifically whether such shipment(s) took place prior to
June 17, 2010, and if such shipment(s) took place,
whether and how the mark was used on the actual
products so shipped. (emphasis in original).
(19 TTABVUE 5).

The trial record includes precisely the information found absent from the
evidence before the Board when considering the propriety of summary judgment in
this case. That is, Opposer proved that it began shipping its breakfast food product
on June 1, 2010, and that the products were shipped in the packaging shown in

8 As observed earlier, all of the dollar figures related to Opposer’s sales have been
designated “confidential.”
Opposition No. 91198239

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Opposer’s Exhibit 2, which prominently displays the mark GRIDDLERS.
Accordingly, Opposer has proved its priority of use over Applicant.
Oral testimony, if “sufficiently probative,” may be sufficient to prove priority.
Powermatics, Inc. v. Glebe Roofing Products Co., 341 F.2d 127, 144 USPQ 430
(CCPA 1965); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1108
(TTAB 2007); 4U Co. of America, Inc. v. Naas Foods, Inc., 175 USPQ 251 (TTAB
1972). In the present case, the testimony of Messrs. McTigue and Silzer, based on
their personal knowledge and experience, is not “characterized by contradictions,
inconsistencies and indefiniteness,” but rather carries with it “conviction of its
accuracy and applicability.” B.R. Baker Co. v. Lebow Bros., 150 F.2d 580, 66 USPQ
232 (CCPA 1945). Further, their oral testimony is buttressed by probative
documentary evidence. See Elder Mfg. Co. v. International Shoe Co., 194 F.2d 114,
92 USPQ 330 (CCPA 1952).
Because the record shows Opposer used the inherently distinctive mark
GRIDDLERS prior to Applicant’s filing date, Opposer has proven use prior to
Applicant’s constructive first use date of June 17, 2010.9 Applicant’s feeble attempts
in its brief to find fault with Opposer’s proofs fall far short.
In reaching our decision, we have taken into consideration the Federal Circuit’s
admonition when we are determining dates of use for priority purposes:

9 Neither party specifically addressed the question of the mark’s distinctiveness. Based on
the record, Opposer’s mark is, at worst, just suggestive. Accordingly, we find that Opposer’s
mark GRIDDLERS is inherently distinctive when used in connection with breakfast
sandwiches (and Applicant does not contend otherwise).
Opposition No. 91198239

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The TTAB concluded that each piece of evidence
individually failed to establish prior use. However,
whether a particular piece of evidence by itself establishes
prior use is not necessarily dispositive as to whether a
party has established prior use by a preponderance.
Rather, one should look at the evidence as a whole, as if
each piece of evidence were part of a puzzle which, when
fitted together, establishes prior use. The TTAB failed to
appreciate this. Instead, the TTAB dissected the evidence
to the point that it refused to recognize, or at least it
overlooked, the clear interrelationships existing between
the several pieces of evidence submitted. When each piece
of evidence is considered in light of the rest of the
evidence, rather than individually, the evidence as a
whole establishes by a preponderance that West used the
“FAST EDDIE’S” mark prior to Jet’s admitted first use of
the mark.

West Florida Seafood Inc. v. Jet Restaurants Inc., 31 F.3d 1122, 31 USPQ2d 1660,
1663 (Fed. Cir. 1994).
Similarly, we have considered all the pieces of the puzzle relating to Opposer’s
first use of the mark GRIDDLERS in connection with its breakfast food products.
Opposer took orders for its products, made sales of products and shipped products
bearing the mark GRIDDLERS prior to Applicant’s constructive use date of June
17, 2010. In at least one sale, payment was made prior to this date. These sales
occurred shortly after Opposer’s significant preparatory activities and sales
presentations to its customers. We find that, in the words of the Federal Circuit,
Opposer’s testimony and pieces of evidence have an “interrelationship”; that is,
“when each piece of evidence is considered in light of the rest of the evidence, rather
than individually, the evidence as a whole” establishes that Opposer used the mark
GRIDDLERS prior to Applicant’s constructive first use date of June 17, 2010.
Opposition No. 91198239

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Applicant questions Opposer’s use by arguing that Opposer’s sales were not made
to the general consuming public, that is, the end consumer; thus, according to
Applicant, the sales do not show use sufficient for Opposer to establish priority.
This argument misses the mark. Use in commerce is a flexible standard which
takes into account the ordinary course of a user’s business. See Automedx v.
Artivent Corp., 95 USPQ2d at 1981 (“Use in commerce should be interpreted with
flexibility to account for different industry practices.”). Opposer is a manufacturer of
food products, and is not a retailer of such products to the end consumers; rather,
Opposer’s customers are retailers and wholesalers of food products. In the ordinary
course of business, Opposer made sales of its product under the mark GRIDDLERS
to retailers and wholesalers before June 17, 2010, Applicant’s priority date. See
Raintree Publishers, Inc. v. Brewer, 218 USPQ 272, 274 (TTAB 1983) (“The sale and
shipment of products bearing a trademark to one’s distributor is clearly sufficient to
establish trademark rights.”). See also Jimlar Corp. v. The Army and Air Force
Exchange Service, 24 USPQ2d 1216, 1221 (TTAB 1992), citing Geo. Washington
Mint, Inc. v. Washington Mint, Inc., 349 F.Supp. 255, 176 USPQ 251, 253-55 (SDNY
1972) (sample products bearing mark and advertising thereof, used in taking orders
for goods, sufficient to establish priority); Further, the facts that Opposer’s
significant advertising and promotional campaign for the mark did not commence
until later or that Opposer’s initial sales were minor compared to its sales after
June 17, 2010, are of no consequence in our priority determination.
Opposition No. 91198239

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We have carefully considered all of the evidence of record, as well as all of the
arguments with respect thereto, including any evidence and arguments not
specifically discussed in this opinion. We conclude, based on a preponderance of the
evidence, that Opposer used its mark GRIDDLERS for breakfast sandwiches in
commerce prior to Applicant’s constructive use date of June 17, 2010; and that the
parties’ marks are likely to cause confusion.
DECISION
The notice of opposition is sustained, and registration to Applicant is refused.