No. 85242271 (T.T.A.B. Mar. 21, 2013)

SKJ Ventures, LLC

Trademark Trial and Appeal BoardMar 21, 2013

No. 85242271 (T.T.A.B. Mar. 21, 2013)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: March 21, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re SKJ Ventures, LLC _____ Serial No. 85242271 _____ Sabrina C. Stavish of Sheridan Ross PC for SKJ Ventures, LLC. Laurie R. Kaufman, Trademark Examining Attorney, Law Office 103 (Michael Hamilton, Managing Attorney). _____ Before Cataldo, Bergsman and Adlin, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: SKJ Ventures, LLC (“applicant”) filed an intent-to-use application to register the mark WR RESERVE, in standard character form, for goods ultimately identified as “beef; meat,” in Class 29. Applicant filed an amendment to allege use during the course of prosecution. The Trademark Examining Attorney refused to register applicant’s mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the ground Serial No. 85242271 2 that applicant’s mark so resembles the registered mark WR (stylized), shown below, for “cattle,” in Class 31, as to be likely to cause confusion.1 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 issue of likelihood of confusion. 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 Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the services. See 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”). A. The similarity or dissimilarity of the marks in their entirety in terms of appearance, sound, connotation and commercial impression. We turn first to the du Pont likelihood of confusion factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177 USPQ at 567. In a particular case, any one of these means of comparison may be 1 Registration No. 0789246, issued May 11, 1965; second renewal. Serial No. 85242271 3 critical in finding the marks to be similar. In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987). In comparing the marks, we are mindful that the test is not whether the marks can be distinguished when subjected to a side-by-side comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial impression so that confusion as to the source of the goods offered under the respective marks is likely to result. San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5, 1992). The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks. Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). While the average customer for meat and beef may be an ordinary consumer, the average customer for cattle is likely to be someone who exercises a high degree of care. See the discussion below. The marks are similar to the extent that they both include the letters “WR.” While the mark in the cited registration is highly stylized, the letters “WR” are readily apparent. Thus, the registered mark is not so highly stylized that it is essentially a design mark incapable of being pronounced or conveying any inherent meaning. Serial No. 85242271 4 With respect to applicant’s mark WR RESERVE, the letters WR form the dominant feature of the mark which is most likely to create a lasting impression on purchasers. See Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered”). See also Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark and the first word to appear on the label); Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks, consumers will first notice the identical lead word). As for the word “reserve,” it is defined, inter alia, as follows: 2 :something stored or kept available for future use or need: stock * * * 9 :a wine made from select grapes, bottled on the maker’s premises, and aged differently from the maker’s other wines of the same vintage - in reserve : held back for future or special use2 2 Merriam-Webster (m-w.com). The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). Serial No. 85242271 5 In addition, third-party registrations may be used in the manner of a dictionary to show that a mark or a portion of a mark is descriptive or suggestive of goods. See Tektronix, Inc. v. Daktronics, Inc., 187 USPQ 588, 592 (TTAB 1975). Here, the Trademark Examining Attorney submitted five registrations for marks containing the word “Reserve” registered for food [or meat and processed food] products in International Class 29 in which the registrant disclaimed the exclusive right to use “Reserve,” while applicant submitted thirty-eight (38) registered marks in Class 29 containing the word “Reserve” without a disclaimer. Twenty (20) of the registrations applicant introduced were registered for beef and/or meat. Weighing all of this evidence together, we find that when used in connection with beef and/or meat, the word “Reserve” suggests a special stock. Thus, when encountering the mark WR RESERVE, consumers are likely to believe that it signifies a special line of WR branded product and, therefore, the word “Reserve” is a suggestive, if not descriptive, term identifying a higher quality of beef and/or meat. Accordingly, we disagree with applicant’s contention that the addition of the word “Reserve” to applicant’s mark changes the meaning of applicant’s mark such that consumers will readily distinguish the two marks.3 While our analysis has focused on the similarity of the letters “WR, we have not ignored the word “Reserve.” Nevertheless, 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 3 Applicant’s Brief, p. 8. Serial No. 85242271 6 consideration of the marks in their entireties. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Further, we find that the marks WR (stylized) and WR RESERVE are similar because arbitrary or inherently meaningless combinations of letters, as we have here, are more difficult to remember than ordinary words and they more likely to be found to be similar to other letter strings. See Weiss Associates Inc. v. HRL Associates Inc., 14 USPQ2d 1840, 1842 (Fed. Cir. 1990). Although the original registrant was Winthrop Rockefeller, dba Winrock Farms, there is nothing in the record to support a finding that the letters “WR” are recognized as, or suggest, a well-known company name and thereby distinguish the marks. Accordingly, we disagree with applicant’s contention that consumers are likely to understand the registered mark to be an abbreviation of registrant’s name.4 Under circumstances as we have before us in this case, where applicant’s mark incorporates the entire registered mark, likelihood of confusion has been found. See The Wella Corp, v. California Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977) (CALIFORNIA CONCEPT and surfer design for men’s cologne, hair spray, conditioner and shampoo is likely to cause confusion with the mark CONCEPT for cold permanent wave lotion and neutralizer); Coca-Cola Bottling Co. of Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for club soda, quinine water and ginger ale is likely to cause confusion with BENGAL 4 Applicant’s Brief, p. 10. Serial No. 85242271 7 for gin); Johnson Publishing Co. v. International Development Ltd., 221 USPQ 155, 156 (TTAB 1982) (applicant’s mark EBONY DRUM for hairdressing and conditioner is likely to cause confusion with EBONY for cosmetics); In re Cosvetic Laboratories, Inc., 202 USPQ 842 (TTAB 1979) (applicant’s mark HEAD START COSVETIC for vitamins for hair conditioners and shampoo is likely to cause confusion with HEAD START for men’s hair lotion and after-shaving lotion). Applicant also urges us to consider the trade dress (i.e., “the manner in which the marks are used on the different products”).5 While trade dress may provide evidence regarding the commercial impression engendered by the mark, “[a] distinction in trade dress cannot weigh against likelihood of confusion with respect to the registration of a simple word mark… The reason is that such dress might well be changed at any time; only the word mark itself is to be registered.” Kimberly Clark Corp. v. H. Douglas Enterprises, Ltd., 774 F.2d 1144, 1147, 227 USPQ 541, 543 (Fed. Cir. 1985). See also Vornado, Inc. v. Breuer Electric Mfg. Co., 390 F.2d 724, 156 USPQ 340, 343 (CCPA 1968). In view of the foregoing, we find that marks are similar in terms of appearance, sound, connotation and commercial impression. B. The similarity or dissimilarity and nature of the products described in the application and registration, likely to continue established channels of trade, and classes of consumers. In the May 17, 2011 Office action, the Trademark Examining Attorney submitted eight use-based, third-party registrations for cattle or livestock and beef 5 Applicant’s Brief, pp. 10-11. Serial No. 85242271 8 or meat listed in both the application and registration at issue. Third-party registrations which individually cover a number of different products that are based on use in commerce may have some probative value to the extent that they serve to suggest that the listed goods are of a type which may emanate from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786; In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The registrations are listed below.6 Mark Reg. No. Relevant Overlapping Goods TENDRLEEN 1000153 Live beef cattle; beef halves, quarters or cuts or pieces of beef ANVIL 3417876 Cattle; beef MASÚT 3675093 Cattle; beef AB 3956415 Cattle; meat, beef TRUE. FREE. RANGE. 3951759 Cattle; free-range beef Barn Design 3068125 Cattle; meat FOLLY FARM 3957542 Cattle; beef MEADOW RESERVE 3857244 Livestock; meat In the December 2, 2011 Office Action, the Trademark Examining Attorney submitted websites purportedly to show that it is “common for cattle ranches to also provide beef or meat directly to consumers and market them under the same 6 For purposes of this list, we have included only the relevant overlapping goods as identified in either the application or the cited registration. We did not consider Registration No. 3822452 for the mark FERNVALE ANGUS because it did not include cattle. Serial N tradema the follo 1 2 3 4 The web every st leading informa others. brands, A owned b 7 Februa o. 852422 rk.” Spec wing webs . Nima . Albau . Silve (silve . EATW ranch sites prov ep of the p to human tion as to Further, if any, the pplicant, o y different ry 10, 2012 71 ifically, th ites: n Ranch w gh’s Frost r Springs R rspringsbe ILD (eat es that pr ide inform rocess for ely proces whether a there is ranchers n the othe parties fo response. e Tradem ebsite (nim y Acres we anch and ef.com); an wild.com) oduce gras ation abou producing sed meat ny of the r no informa and farme r hand, su r meat and 9 ark Exam anranch. bsite (fros Alhambra d directory s fed meat t rancher meat, nam and beef. anches or tion in th rs use to id bmitted ei livestock ining Atto com); tyacres.co Valley Be of appro . s and farm ely, land None of t farms sell e website entify the ght registr .7 rney subm m); ef ximately ers who a and anim he website cattle or s as to w ir cattle. ations for itted exce 74 farms re involve al steward s provide raise cattl hat mark similar m rpts and d in ship any e for s or arks Serial N Applica confusio registra A Examin related issue. S the opp for the 2009) (“ for the entities the liste Helene (“In con numero 8 Applica o. 852422 nt argues n between tions whic s we indic ing Attorn because th imilarly, a osite (i.e., goods at is On the oth same or s arguing, i d goods ar Curtis Ind nection w us third-p nt’s Brief, p 71 that thes similar m h include b ated abov eys to sug e same p pplicants that the O sue). See er hand, a imilar ma n essence, e of a type ustries v. S ith its re arty regist . 15. e registra arks for ca oth produ e, third-pa gest in a li arty has may subm ffice has r In re Tho pplicant h rks for di that the t which ma uave Sho lated good rations an 10 tions sho ttle and m cts.8 rty registr kelihood o registered it sets of t egistered r Tech, In as submitt fferent ty hird-party y emanat e Corp., 13 s argume d exhibits w that th eat merel ations can f confusion a common hird-party the same m c., 90 USP ed copies pes of tra registrati e from diff USPQ2d nts, plain to show t ere is no y because be used case that mark fo registrati ark to di Q2d 1634 of 13 sets o ilers owne ons serve t erent sour 1618, 162 tiff has m hat it is c likelihoo there are s by Tradem the goods r the good ons to sug fferent pa , 1636 (T f registrat d by diffe o suggest ces”). See 4 (TTAB 1 ade of re ommon in d of ome ark are s at gest rties TAB ions rent that also 989) cord the Serial No. 85242271 11 trade for the same mark to appear both on personal care products and wearing apparel emanating from the same source. Defendant, on the other hand, has introduced registrations and exhibits to show registration and use of the same or similar marks on these same types of products, but emanating from different sources”). However, the problem with applicant’s evidence of third-party registrations is that it does not negate the fact that eight registrants registered their marks for both cattle or livestock and beef or meat. There is no requirement for goods to be found related that all or even a majority of the sources of one product must also be sources of the other product. Therefore, evidence showing only that the source of one product may not be the source of another product does not aid applicant in its attempt to rebut the evidence of the examining attorney. Second, the mere fact that some goods are not included in a registration's identification of goods does not establish that the owner of the mark has not registered the mark for those goods in another registration since, for example, the registrant may have begun using the mark on those goods at a later date. Third, the law recognizes that trademark owners have different marks that are used as a house mark, a mark for a line of products, and a mark for specific items. It is, therefore, to be expected that many registrations for marks would not cover all of a party's goods and services. … The fact that applicant was able to find and submit for the record these registrations of marks for individual items does not rebut the examining attorney's evidence showing the existence of numerous third-party registrations using the same marks on a variety of items, including applicant's and registrant's goods. Therefore, contrary to applicant's argument …, while this evidence provides some indication that there are many trademarks that are not registered for both products, it does not rebut the examining attorney's evidence that the goods are related. (Emphasis in the original). Serial No. 85242271 12 In re G.B.I. Tile and Stone Inc., 92 USPQ2d 1366, 1370 (TTAB 2009). The third-party registrations “serve to suggest” that cattle or livestock and beef or meat may emanate from a single source. The third-party websites show that some farmers or ranchers raise cattle to sell beef. The third-party websites do not, however, show any farmers or ranchers using the same trademark to identify cattle or livestock and beef or meat. Nor do the third-party websites show any farmers or ranchers selling cattle or livestock and beef or meat or the conditions under which a farmer or rancher would sell cattle or livestock such that we could find that both sets of products would be encountered by the same consumers under circumstances likely to give rise to the mistaken belief that the products emanate from the same source because of the similarity of the marks. We find the evidence is barely sufficient to show that cattle is related to beef or meat but not sufficient to show that those products move in the same channels of trade and are sold to the same classes of consumers. C. The degree of purchaser care. To the extent that the same consumers would encounter both sets of products, that consumer is going to be the purchaser of cattle or livestock. Purchasing cattle or livestock is an unusual purchase in terms of its nature (i.e., it is not a consumer product; it is a living animal). The consumer is going to have a reasonably focused need or specific purpose or plan involving the cattle. Moreover, the purchaser is going to be knowledgeable and concerned about the source of the Serial No. 85242271 13 cattle. Accordingly, we find that cattle purchasers are going to exercise a high degree of care. D. Balancing the factors. To the extent that cattle is related to beef or meat because beef or meat is derived from cattle, the channels of trade and classes of consumers are different such that the same consumers will not encounter the products under circumstances likely to give rise to the mistaken belief that cattle and beef or meat emanates from the same source. To the extent that the same consumers may encounter both products, that consumer is a purchaser of cattle who exercise a high degree of care in making his/her purchasing decision. Accordingly, we find that applicant’s mark WR RESERVE for meat or beef is not likely to cause confusion with the mark WR (stylized) for cattle. Decision: The refusal to register is reversed.