S.C. Valvis Holding S.A.

Trademark Trial and Appeal Board

Apr 17, 2018

No. 79195691 (T.T.A.B. Apr. 17, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: April 17, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re S.C. Valvis Holding S.A.
_____

Serial No. 79195691

_____

Gregory Kenyota, Alex D. Patel, and Paulo A. de Almeida, of Patel & Almeida, P.C.,
for S.C. Valvis Holding S.A.

Andrea B. Cornwell, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____

Before Ritchie, Greenbaum, and Masiello,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
S.C. Valvis Holding S.A. (“Applicant”) seeks registration on the Principal Register
of the mark LOVE AT FIRST SIP, in standard character form, for goods ultimately
identified as “mineral and aerated waters; none of the foregoing flavored with juices,”
in International Class 32.1 The Examining Attorney refused registration of

1 Serial No. 79195691, filed on August 29, 2016, pursuant to Section 66(a) of the Trademark
Act, 15 U.S.C. § 1141f(a), was filed as an extension of protection to the United States of
International Registration No. 1317961.
Serial No. 79195691
- 2 -
Applicant’s mark under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a
prior registration of the mark LOVE AT FIRST SIP, also in standard character form,
for “orange juice beverages,” in International Class 32.2 After the Examining
Attorney made the refusal final, Applicant filed a request for reconsideration and an
appeal. When the request for reconsideration was denied, the appeal was resumed.
Both Applicant and the Examining Attorney filed briefs. We affirm the refusal to
register.
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence that are relevant to the factors set forth in In re
E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also
In re Majestic Distilling Company, Inc., 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. See Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See
also In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
We consider the du Pont factors for which arguments or evidence were presented. The
other factors, we consider to be neutral.

2 Registration No. 4402966 issued September 17, 2013.
Serial No. 79195691
- 3 -
A. The Marks
We consider and compare the appearance, sound, connotation and commercial
impression of the marks in their entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). The mark in the cited registration is LOVE AT FIRST SIP, in standard
character format. Applicant’s mark also is LOVE AT FIRST SIP, in standard
characters. There is no argument or evidence that the commercial impression would
be different when applied to registrant’s goods rather than to Applicant’s.
Applicant argues that the term LOVE AT FIRST SIP is weak because there is a
third-party registration, Registration No. 4690910, for “distilled spirits; vodka,” and
therefore this “would instead support an argument that LOVE AT FIRST SIP is weak
for beverages.”3 The existence of a single registration, however, is not enough to
narrow the scope of protection of the cited registration. Cf. Promark v. GFA Brands,
Inc., 114 USPQ2d 1232, 1244 (TTAB 2015) (“Such third-party registrations and uses
are competent to show that the common term has an accepted meaning in a given
field.”).
We find that the marks are identical in sight, sound, connotation, and commercial
impression, and that this first du Pont factor weighs heavily in favor of finding a
likelihood of confusion.

3 14 TTABVUE 7.
Serial No. 79195691
- 4 -
B. Goods, Trade Channels and Purchasers
When considering the similarity or dissimilarity of the goods, we note that with
identical marks, as we have here, the goods need be less similar for us to find a
likelihood of confusion. In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
Moreover, goods need not be identical or even competitive in order to support a
finding of likelihood of confusion. Rather, it is enough that the goods are related in
some manner or that some circumstances surrounding their marketing are such that
they would be likely to be seen by the same persons under circumstances which could
give rise, because of the marks used or intended to be used therewith, to a mistaken
belief that they originate from or are in some way associated with the same producer
or that there is an association between the producers of the parties’ goods or services.
In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).4
To demonstrate the relatedness of the identified goods, the Examining Attorney
submitted copies of third-party registrations with “aerated” or “mineral” water as
identified in the application, on the one hand, and “orange juice,” or “orange juice
beverages” as identified in the cited registration, on the other. Copies of use-based,
third-party registrations may help establish that the goods are of a type which may

4 Applicant argues that to show relatedness of the goods, the Examining Attorney must show
“something more” than that the different goods are in the same environment or trade
channels. 14 TTABVUE 4. In this regard, Applicant cites In re Coors Brewing Co., 343 F.3d
1340, 68 USPQ2d 1059 (Fed. Cir. 2003) (citing Jacobs v. Int’l Multifoods Corp, 668 F.2d 1234,
212 USPQ2d 641, 642 (CCPA 1982)) noting “requirement that ‘something more’ be shown to
establish the relatedness of food and restaurant products for purposes of demonstrating a
likelihood of confusion”; as well as In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB
2011). These cases are inapposite, however, since the goods at issue here are not food, on the
one hand, and restaurant services, on the other, but rather, are both beverages.

Serial No. 79195691
- 5 -
emanate from a single source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783,
1785 (TTAB 1993). Examples include CEREBELLUM (Registration No. 3605081);
HEI MIAN CAI, and design (Registration No. 3928898); SPC, and design
(Registration No 3949138); JEJU SAMDASOO, stylized (Registration No 3326635);
DYDO, and design (Registration No 3140570); TROPICAL WORLD, and design
(Registration No 3937739); MIZUMI and design (Registration No. 3997395); BUDGY
SMUGGLER, and design (Registration No 4155063); CITROSE (Registration No.
4312789); DILALI, and design (Registration No. 4624510); GAS BEVERAGES, and
design (Registration No. 5209706); and TEWOO (Registration No. 4803560).5
Applicant argues that the number of registrations “with any alleged overlap
between orange juice beverages and mineral or aerated waters not flavored with
juices is clearly de minimus.”6 To support this, Applicant submitted evidence from
the electronic search system showing that 80 out of a total of 2260 total live
registrations for “mineral” or “aerated” water in International Class 32, also identify
“orange juice.”7 Besides being a mere listing of registrations with no further
information provided, this search has little probative value, since it does not indicate
whether the same entity has separate registrations under the same mark for “mineral
or aerated waters” and “orange juice beverages.” Applicant also submitted four sets
of registrations owned by different entities for “similar marks” for orange juice on the

5 Attached to September 8, 2017 Denial of Request for Reconsideration, at 5-45.
6 14 TTABVUE 7.
7 Attached to February 1, 2017 Response to Office Action.
Serial No. 79195691
- 6 -
one hand and water on the other.8 Not only are the third-party marks not identical
to each other, as are the marks here in the application and the cited registration, but
in line with our precedent, four sets of registrations would hardly constitute strong
evidence of industry conditions. Cf. In re Thor Tech, Inc. 113 USPQ2d 1546, 1548
(TTAB 2015) (“The existence of almost fifty pairs of substantially identical marks for
land motor vehicles and for towable recreational vehicle trailers on the federal
Trademark Register suggests to us that businesses in these two industries believe
that their respective goods are distinct enough that confusion between even identical
marks is unlikely.”).
In addition to third-party use-based registrations, the Examining Attorney also
submitted examples of recipes that include both orange juice and some form of
sparkling or carbonated water. Relevant excerpts include the following:9
Williams Sonoma Sparkling Citrus Spritzer: These breakfast spritzers,
made with a mixture of grapefruit and orange juices, get an extra burst
of flavor from a sprinkling of lime juice just before sparkling mineral
water is added.
Williams-sonoma.com.

Orange Spritzer, Drink Up!: . . . I always mix my juices with sparkling
water. The recipe I’m sharing with you today is for my favorite way of
drinking orange juice, an orange spritzer!
http://honestcooking.com.

Preparation: In a tall glass combine the Cointreau, the orange and
lemon juices, and 4 ice cubes. Fill the glass with the seltzer and stir the
drink. Garnish it with the orange slice.
Epicurious.com.

8 Attached to February 1, 2017 Response to Office Action.
9 Attached to February 2, 2017 Final Office Action, at 48-87; and September 8, 2017 Denial
of Request for Reconsideration, at 107-115.
Serial No. 79195691
- 7 -
Directions: Place the ice cubes in a highball glass. Add the Campari,
orange juice, and sparkling water. Add a slice of fresh orange and serve
ice cold.
Foodnetwork.com.

Orange spritzer, nonalcoholic recipe: Includes 2 cups orange juice; 2 cups
carbonated soda/sparkling mineral water; 2 cups of ice cubes; and 1
fresh orange.
Pepperbowl.com.
Pomegranate Sparkling Orange Juice – Fancy Holiday Drinks: 4 cups
100% pure Florida orange juice; ½ cup pomegranate juice; ½ cup
sparkling water.
Superhealthykids.com.

Applicant argues that the recipes are not dispositive. Applicant cites Board
precedent, which states:
There is, of course, no per se rule that all food products appearing in the
same recipe be considered related for Section 2(d) purposes. It is not
unusual for recipes to contain many different ingredients and
consumers are not likely to assume merely from the fact that two items
are called for in the same recipe that they necessarily emanate from the
same source of origin.

In re Davia, 110 USPQ2d 1810, 1816 (TTAB 2014). The Board nevertheless
found that there was “conjoint use,” and that the ingredients were “commonly
used together.” Id. The Board, thus, went on to say:
If two ingredients, however, are found to be complementary in that they
are sold in the same stores to the same consumers for the same, related
or complementary end use, consumers are likely to be confused upon
encountering the goods under the same or similar marks even though
the goods may be found in different areas within a store.

Id. Here, we reach the same conclusion as in In re Davia, that these beverages are
related and complementary, often being included in recipes as integral ingredients
Serial No. 79195691
- 8 -
together, and where, as here, they are offered under identical marks, consumers are
likely to assume that they derive from a single source.
Regarding channels of trade, the Examining Attorney has submitted evidence that
mineral or aerated water is offered via the same retailers as orange juice or orange
juice beverages, including at Freshdirect.com and Walmart.com, and even under the
same house mark, at Harristeeter.com and Wegmans.com.10 We thus find that the
goods are related and complementary, and are likely to travel through the same
channels of trade to the same classes of consumers. The second and third du Pont
factors also favor finding a likelihood of confusion.
C. Conditions of Sale
The Examining Attorney urges us to consider that the identified items are often
sold at a low cost, and may be subject to impulse purchase, which Applicant has not
disputed. In particular, the Examining Attorney submitted evidence of sparkling
water offered for as low as “3 for $1.00” and orange juice offered at $2.50.11 In this
regard, we must make our determination based on the least sophisticated consumer.
Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1163 (Fed. Cir. 2014) (affirming that TTAB properly considered all potential
investors for recited services, which included sophisticated investors, but that
precedent requires consumer care for likelihood-of-confusion decision to be based “on

10 Attached to September 8, 2017 Denial of Request for Reconsideration, at 178-202.
11 Shoprite.com. Attached to September 8, 2017 Denial of Request for Reconsideration, at
185-187. Similar prices are featured on Wegmans.com and Harristeeter.com. Id. at 178-188.
Serial No. 79195691
- 9 -
the least sophisticated potential purchasers”). We find this factor to favor finding a
likelihood of confusion.
D. Conclusion
After considering all of the arguments and evidence of record as they pertain to
the relevant du Pont factors, we find that the marks are identical in sight, sound,
connotation, and commercial impression, and the goods are related and
complementary and would travel through some of the same channels of trade and be
encountered by the same general classes of consumers, including as an impulse
purchase. Thus, we find that there is a likelihood of confusion between Applicant’s
mark LOVE AT FIRST SIP for “mineral and aerated waters; none of the foregoing
flavored with juices,” and the mark in the cited registration, LOVE AT FIRST SIP,
for “orange juice beverages.”
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.