Shamrock Beverage Co.

Trademark Trial and Appeal Board

Aug 29, 2007

No. 76652382 (T.T.A.B. Aug. 29, 2007)

Mailed: August 29, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Shamrock Beverage Co.
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Serial No. 76652382
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Cary S. Tepper of Booth, Freret, Imlay & Tepper, P.C. for
Shamrock Beverage Co.

Nelson B. Snyder III, Trademark Examining Attorney, Law Office
107 (J. Leslie Bishop, Managing Attorney).
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Before Holtzman, Kuhlke and Bergsman, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

An application has been filed by Shamrock Beverage Co. to
register the mark shown below for goods ultimately identified as
"concentrates for non-alcoholic frozen fruit beverages, fruit
THIS OPINION IS
NOT A PRECEDENT OF
THE TTAB
Serial No. 76652382
2
drinks and fruit juices" in Class 32.1

The trademark examining attorney has refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant's mark, when applied to applicant's goods, so resembles
the marks in the following four registrations, all owned by the
same entity, as to be likely to cause confusion.
Registration No. 0189882 for the mark shown below for
"fresh citrous [sic] fruits" in Class 31;2

1 Serial No. 76652382, filed December 21, 2005, based on an allegation
of first use and first use in commerce on November 15, 2005. The
wording "BEVERAGE CO." is disclaimed. The application contains the
following color statement: "The letters in the term 'Shamrock' are
black with a green inner outline and a thin[] black outer outline. The
shamrock design element in the term 'Shamrock' is dark green with a
light green inner outline and a thin black outer outline. The term
'BEVERAGE' is white with a black shadow, and appears in a rectangular
banner design with a dark green background, light green inner outline,
black outer outline and black shadow. The term 'CO.' is black."

2 Issued September 30, 1924; fourth renewal.

Serial No. 76652382
3
Registration No. 1761590 for the mark shown below
(FOODS COMPANY disclaimed), for "fresh fruits and
fresh vegetables" in Class 31;3

Registration No. 1761602 for the mark shown below for
"fruit juices and fruit-flavored drinks" in Class 31.4

Registration No. 1846288 for the mark shown below
for"canned and frozen vegetables; dietary (low sodium)
canned vegetables; battered and breaded frozen
vegetables; canned, frozen and dehydrated fruit; jams,
jellies and preserves; peanut butter; pickles;
processed peppers; olives; eggs" in Class 29.5

3 Issued March 30, 1993; Renewed; "The stippling on the mark is for
shading purposes only and does not indicate color." "The mark
incorporates a split-leaf shamrock design."

4 Issued March 30, 1993; renewed. "The stippling on the mark is for
shading purposes only and does not indicate color." "The mark
incorporates a split-leaf shamrock design."

5 Issued July 19, 1994; renewed. "The stippling on the mark is for
shading purposes only and does not indicate color." "The mark
incorporates a split-leaf shamrock design."
Serial No. 76652382
4
When the refusal was made final, applicant appealed. Briefs
have been filed.
Our determination under Section 2(d) is based on an analysis
of all of the probative facts in evidence that are relevant to
the factors bearing on the likelihood of confusion issue. In re
E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). In any likelihood of confusion analysis, however, two key
considerations are the similarities or dissimilarities between
the marks and the similarities or dissimilarities between the
goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
In our analysis we will focus on the two closest of the
cited registrations to the involved application, namely the marks
and goods in Registration Nos. 0189882 and 1761602.
Applicant argues that while the marks have some similarities
in that they all contain the word SHAMROCK and the design of at
least one clover, the style of lettering of that word and the
clover designs are distinctly different in applicant's and
registrant's marks. Applicant notes that the clover in its mark
is used as the letter "O" as distinguished from registrant's
marks where it appears as one large, three-leafed two-toned
clover or many small intertwining clovers that, according to
applicant, resemble ivy. While admitting that SHAMROCK "may be
viewed as the dominant portion of the marks" (Brief, p. 10),
Serial No. 76652382
5
applicant argues that the disclaimed portion of applicant's mark
cannot be ignored and that the presence of this wording further
distinguishes the marks in sound and appearance.
While marks must be considered in their entireties, it is
well settled that "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 consideration of the marks in their entireties." In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985). When we compare applicant's mark SHAMROCK with
registrant's marks in their entireties, giving appropriate weight
to the features thereof, we find that the marks are highly
similar in sound, meaning and overall commercial impression, and
that the differences in the marks, which involve primarily visual
differences, are far outweighed by their similarities.
The dominant portion of registrant's two marks is the word
SHAMROCK. The identical term, SHAMROCK, is the most significant
component of applicant's mark. It is this portion of the mark
that conveys the strongest impression in both applicant's and
registrant's marks. While the disclaimed, if not generic,
wording, "BEVERAGE CO." in applicant's mark is not ignored, the
fact is, that consumers are more likely to rely on the
nondescriptive portion of the mark, that is, the word SHAMROCK,
as an indication of source. See In re National Data Corp., supra
Serial No. 76652382
6
at 751 ("That 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"). We also note that the disclaimed wording in applicant's
mark is visually less prominent, appearing in much smaller
lettering than SHAMROCK and on a separate line.
In addition, it is the word SHAMROCK itself, rather than the
particular display of that word or the design elements in the
marks, that is more likely to have a greater impact on purchasers
and be remembered by them. See CBS, Inc. v. Morrow, 708 F.2d
1579, 218 USPQ 198, 200 (Fed. Cir. 1983) ("in a composite mark
comprising a design and words, the verbal portion of the mark is
the one most likely to indicate the origin of the goods to which
it is affixed"). The word portion of a composite word and design
mark is generally accorded greater weight because it would be
used to request the goods. See In re Appetito Provisions Co., 3
USPQ2d 1553 (TTAB 1987). This is particularly true where, as
here, the design elements do not significantly add to or change
the commercial impression created by the word, SHAMROCK, alone.
In fact, the clover designs, although different in each mark and
more prominent than the word in the '602 registration, merely
serve to reinforce the meaning and commercial impression conveyed
by the word SHAMROCK.
Serial No. 76652382
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We also note that registrant's SHAMROCK marks are entirely
arbitrary as applied to fresh fruit and fruit juices, and as such
they are strong marks which are entitled to a broad scope of
protection. See In re Wilson, 57 USPQ2d 1863 (TTAB 2001). This
makes it even less likely that purchasers will give much
consideration to the visual differences in applicant's and
registrant's marks and more likely, if the marks are used on
related goods, to cause confusion.
We turn then to the goods. Applicant's goods are
concentrates for frozen fruit juices and fruit drinks. The goods
in Registration No. 0189882 are fresh citrus fruits and the goods
in Registration No. 1761602 include fruit juices. Applicant
argues that the goods in Registration No. 1761602 "appear to be
somewhat similar to [applicant's products]" but that fresh citrus
fruits are distinct from applicant's goods.
The question is not whether purchasers can differentiate the
goods themselves but rather whether purchasers are likely to
confuse the source of the goods. See Helene Curtis Industries
Inc. v. Suave Shoe Corp., 13 USPQ2d 1618 (TTAB 1989). Thus, it
is not necessary that the goods of the applicant and registrant
be similar or even competitive to support a finding of likelihood
of confusion. It is sufficient if the respective goods are
related in some manner and/or that the conditions surrounding
their marketing are such that the goods would be encountered by
Serial No. 76652382
8
the same persons under circumstances that could, because of the
similarity of the marks used thereon, give rise to the mistaken
belief that the goods emanate from or are associated with, the
same source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783
(TTAB 1993).
Fruit juices and fruit juice concentrates are obviously
related beverage products. Applicant does not argue otherwise.
Furthermore, fresh fruits are closely related to concentrates
made from fruits. Purchasers would naturally assume, if they
encounter these products under applicant's and registrant's very
similar marks, that such products come from or are associated
with the same company. We also note that the examining attorney
has submitted a number of use-based, third-party registrations
showing, in each instance, a mark which is registered for fresh
fruits and fruit juices, on the one hand, as well as fruit
concentrates, on the other. For example, the mark SUNKIST is
registered for oranges (Registration No. 0072087) and lemons
(Registration No. 0085069) as well as citrus-flavored beverages
and concentrates for such beverages (Registration No. 0301281);
the mark DOLE is registered for fresh fruits (Registration No.
2314787) as well as fruit juices and fruit juice concentrates
(Registration No. 1335817); Registration No. 3047447 for the mark
POM (stylized) lists fresh fruits and fruit juices, as well as
fruit juice concentrates; Registration No. 0641108 for the mark
Serial No. 76652382
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OLD SOUTH lists fresh citrus fruits and canned citrus fruit
juices, as well as fresh frozen citrus juice concentrates;
Registration No. 0703640 for the mark CAL FAME lists fresh fruits
and canned and frozen fruit juices, as well as frozen fruit juice
concentrates; and Registration No. 2646095 for the mark TAD (and
design) lists fresh fruit and fruit juices, as well as fruit
juice concentrates. These third-party registrations, although
not evidence of use of the marks in commerce, serve to suggest
that the respective goods are of a type which may emanate from
the same source. See In re Albert Trostel & Sons Co., 29 USPQ2d
1783 (TTAB 1993) and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d
1467 (TTAB 1988).
There is no question that fresh fruits and fruit juices,
along with fruit juice concentrates, are sold in the same
channels of trade to the same purchasers. Also, these products
are inexpensive and frequently replaceable. It has often been
stated that purchasers of such products are held to a lesser
standard of purchasing care and, thus, are more likely to be
confused as to the source of the goods. See Specialty Brands,
Inc., 748 F.2d 669, 223 USPQ 1281 (Fed. Cir. 1984); and In re
Martin's Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984).
Serial No. 76652382
10
In view of the foregoing, and because highly similar marks
are used in connection with closely related goods, we find that
confusion is likely.
Decision: The refusal to register under Section 2(d) of the
Trademark Act is affirmed.