Sparta Beverage, LLC

Trademark Trial and Appeal Board

Apr 7, 2017

No. 77530392 (T.T.A.B. Apr. 7, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: April 7, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Sparta Beverage, LLC
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Serial No. 77530392

_____

Sam Hope, General Manager,
for Sparta Beverage, LLC.

Jeane Yoo, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Zervas, Shaw and Masiello,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Sparta Beverage, LLC (“Applicant”) seeks registration on the Principal Register
of the mark for “dietary and nutritional supplements;
nutritional supplements, namely, sport nutrition; dietary drink mix for use as a meal
replacement; excluding products for prostate health” in International Class 5.1

1 Application Serial No. 77530392, filed July 24, 2008, pursuant to Trademark Act § 1(a), 15
U.S.C. § 1051(a), claiming dates of first use and first use in commerce on July 20, 2008. On
January 20, 2013, Applicant amended its application to seek registration under Section 1(b)
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During prosecution of the application, Applicant
● disclaimed the term MEAL in its May 10, 2009 Response,
but in its November 9, 2014 Response, stated that it seeks
to withdraw its disclaimer;
● submitted a first proposed amendment on January 20,
2013 and then a second proposed amendment on August 8,
2013, to the originally-filed mark seeking to include the
Greek letter lambda (“Λ”) in the mark;2 and
● submitted a proposed amendment on January 20, 2013 to
add a description of the mark referencing the Greek letter
lambda.3
The Examining Attorney issued a Final Office Action on May 18, 2016 refusing
registration of Applicant’s mark pursuant to Trademark Act Section 2(d), 15 U.S.C.
§ 1052(d), based on Registration No. 4027315 (registered September 20, 2011) for the
standard character mark SPARTAN ORGANICS for “dietary supplements, food
supplements and herbal supplements, all featuring organic ingredients” in
International Class 5.4 In addition, the Examining Attorney:
● Required a disclaimer of MEAL because it merely describes
a feature, purpose, or use of Applicant’s goods, and thus is

of the Trademark Act, 15, U.S.C. § 1051(b), claiming a bona fide intention to use the mark in
commerce.
2 The proposed amended mark submitted on January 20, 2013 is and the proposed
amended mark submitted on August 8, 2013 is .
3 The proposed description of the mark states, “The mark consists of ‘SPARTAN MEAL’ in
stylized form with a Greek letter Lambda in between.”
4 Registrant disclaimed the term ORGANICS.
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an unregistrable component of the mark under Trademark
Rule 6(a), 15 U.S.C. § 1056(a);
● Rejected the proposed amendments of the mark as
material alterations of the mark set forth in the initial
application, pursuant to Trademark Rule 2.72, 37 C.F.R.
§ 2.72, and citing TRADEMARK MANUAL OF EXAMINING
PROCEDURE (“TMEP”) § 807.14 (Jan. 2017); and
● Required an amendment to the description of the mark to
correspond to the original drawing of the mark, pursuant
to Trademark Rule 2.37, 37 C.F.R. § 2.37, and citing TMEP
§§ 808.01 and 808.02.5
After the original Examining Attorney issued a first Final Action, Applicant
appealed the refusal to the Board and filed a brief. A second Examining Attorney was
assigned to the file and the second Examining Attorney filed a request for remand for
further prosecution, which the Board granted. Another Final Office Action issued on
May 9, 2014. The Board subsequently provided Applicant with an opportunity to file
a supplemental brief, but Applicant did not do so. The second Examining Attorney
then filed her brief. We affirm the Section 2(d) refusal and each of the requirements.
Preliminary Issue
Applicant requests that “the Board take [judicial] notice … [of] the arguments and
the marks cited in applicant’s motion to suspend submitted on April 6, 2015.”6 The
motion is part of the prosecution record for the involved application and has been
considered. The applications mentioned in the request for suspension are not

5 The Examining Attorney proposed the following description of the mark, “The mark consists
of the stylized wording ‘SPARTAN MEAL.’”
6 Applicant’s brief at 3, 15 TTABVUE 3.
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considered unless they have been submitted into the record by the Examining
Attorney or by Applicant. The Board does not take judicial notice of applications.
In addition, the motion to suspend refers to a Board decision involving application
Serial No. 77532353. That decision is part of the prosecution record and we have
considered the decision. Applicant should note too that the Board is not bound by the
actions of examining attorneys in other applications; each case is decided on its own
merits. In re Manwin/RK Collateral Trust, 111 USPQ2d 1311, 1315 (TTAB 2014)
(citing In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001)).
Disclaimer Requirement
We now turn to the Examining Attorney’s requirement for a disclaimer of the word
MEAL in Applicant’s mark. The Examining Attorney may require an applicant to
disclaim an unregistrable component of a mark otherwise registrable. See Trademark
Act Section 6(a). Merely descriptive terms are unregistrable under Trademark Act
Section 2(e)(1), 15 U.S.C. §1052(e)(1), and therefore are subject to disclaimer if the
mark is otherwise registrable. See In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d
1087 (Fed. Cir. 2005). Failure to comply with a disclaimer requirement is a ground
for refusal of registration. See id.; In re Richardson Ink Co., 511 F.2d 559, 185 USPQ
46 (CCPA 1975); In re Box Solutions Corp., 79 USPQ2d 1953 (TTAB 2006). A term is
deemed to be merely descriptive of goods or services, within the meaning of
Trademark Act Section 2(e)(1), if it forthwith conveys an immediate idea of an
ingredient, quality, characteristic, feature, function, purpose or use of the goods or
Serial No. 77530392
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services. See, e.g., In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In
re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). On
the other hand, a term is suggestive if, when the goods or services are encountered
under the mark, a multistage reasoning process, or the utilization of imagination,
thought or perception, is required in order to determine what attributes of the goods
or services the term indicates. In re On Technology Corp., 41 USPQ2d 1475, 1477
(TTAB 1996).
The record demonstrates that “meal” is defined as “[t]he food served and eaten in
one sitting”;7 and contains webpages using “meal” as follows:
“Instant meal shake delivers 19 grams of protein plus 4
grams of fiber per serving” – “Vita-Lanne Instant Meal
Shake”;8
Vita-Lanne Instant Meal Shake Vanilla Honey;9
Fit N Full Shake – SWISS CHOCOLATE “I want a quick
healthy meal”;10
Swanson Vitamins offering “SKIP-A-MEAL – Chocolate
Shake”;11 and
GNC, offering “NATURE’S FOOD ALL-IN-ONE MEAL –
Vanilla Bean.”12

7 September 18, 2015 Office Action, TSDR 14.
8 Id., TSDR 14.
9 Id., TSDR 15.
10 Id., TSDR 21.
11 Id., TSDR 17.
12 Id., TSDR 25.
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Applicant states in its brief that “the term MEAL is arbitrary since [a] nutritional
supplement is not traditionaly [sic] a meal.”13 This argument is not persuasive, as
Applicant has not provided any evidence to support it. Further, the definition of
“meal” referring to food itself is broad enough to pertain to goods of the type listed in
Applicant’s identification of goods; the webpages submitted by the Examining
Attorney demonstrate use of “meal” in connection with such goods. Moreover,
Applicant displays the term “meal” as follows in its specimen of use filed with its
application:

A feature of Applicant’s goods is that they contain sufficient nutrition and are so
satisfying that they constitute a “meal,” i.e., a “food served and eaten in one sitting.”
The Examining Attorney’s evidence demonstrates the term “meal” is used in
connection with nutritional supplements and the like. Even the use of the word
“meal” on Applicant’s specimen is consistent with the dictionary definition of the term
“meal,” in referring to a “total meal replacement shake.” A “meal replacement” can

13 Applicant’s brief, 15 TTABVUE 3.
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function as a “meal.” Thus, we find that the term MEAL in Applicant’s mark is merely
descriptive of a feature of Applicant’s goods, namely, that they may be consumed as
a “food served and eaten in one sitting.” The requirement for a disclaimer is therefore
affirmed.
Amendment to Drawing
Trademark Rule 2.72(b)(2), 37 C.F.R. § 2.72(b)(2), provides that in an application
based on a bona fide intention to use a mark in commerce under Section 1(b) of the
Act, an applicant may amend the drawing of the mark if “[t]he proposed amendment
does not materially alter the mark. The Office will determine whether a proposed
amendment materially alters a mark by comparing the proposed amendment with
the description or drawing of the mark filed with the original application.” The test
for determining whether a proposed amendment is a material alteration has been
articulated as follows:
The modified mark must contain what is the essence of the
original mark, and the new form must create the
impression of being essentially the same mark. The general
test of whether an alteration is material is whether the
mark would have to be republished after the alteration in
order to fairly present the mark for purposes of opposition.
If one mark is sufficiently different from another mark as
to require republication, it would be tantamount to a new
mark appropriate for a new application.
In re Hacot-Colombier, 105 F.3d 616, 41 USPQ2d 1523, 1526 (Fed. Cir. 1997), quoting
Visa Int’l Service Ass’n v. Life-Code Systems, Inc., 220 USPQ 740, 743-44 (TTAB
1983). The crucial questions are whether the proposed amendment retains “the
essence of the original mark” and whether it creates “the impression of being
essentially the same mark.” In re Who? Vision Systems, Inc., 57 USPQ2d 1211, 1218
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(TTAB 2000). That is, “the new and old forms of the mark must create essentially the
same commercial impression.” Id. (quoting In re Nationwide Indus. Inc., 6 USPQ2d
1882, 1885 (TTAB 1988)). See also In re Guitar Straps Online, 103 USPQ2d 1745
(TTAB 2012).
The addition of the large Greek letter lambda in either proposed mark, which is
the largest single letter in the proposed mark and arbitrary in connection with the
goods identified in the application, changes the commercial impression of the mark.
Neither this eye-catching and prominent character nor the equivalent word “lambda”
was included in the Examining Attorney’s search of the USPTO records for similar
marks which would preclude registration of Applicant’s mark. Thus, both of
Applicant’s attempts to amend the drawing would result in material alterations to
the proposed mark, as originally filed, and are prohibited under Trademark Rule
2.72(b)(2). The Examining Attorney’s rejection of the alternative drawing is
affirmed.14
Description of the Mark
TMEP § 808.02 provides that “[i]f a description of a mark is placed in the record,
the description should state clearly and accurately what the mark comprises, and
should not create a misleading impression by either positive statement or omission.”

14 The record contains a printout of now cancelled Registration No. 3730440 issued to
Applicant for the mark . Because this mark is cancelled, Applicant may not rely
on this registration in support of its request to amend the mark. It also has no relevance to
Applicant’s arguments regarding no likelihood of confusion (“This gives the applicant priority
of right of use since it was filed prior to mark cited by the examining attorney … .”
Applicant’s brief at 2, TTABVUE 3 (emphasis in original)).
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Because we have not permitted the amendment of the mark, we find the description
of the mark referring to the Greek letter lambda to be inaccurate. The Examining
Attorney’s rejection of the description of the mark is affirmed.
Likelihood of Confusion
Our determination under Section 2(d) of the Trademark Act is based on an
analysis of the probative facts in evidence that are relevant to the factors bearing on
a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973); see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re
Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In considering the
evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry
mandated by Section 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see also In re
Davia, 110 USPQ2d 1810, 1812 (TTAB 2014).
Similarity of Goods, Classes of Purchasers and Trade Channels
At the outset, we compare the parties’ respective goods as they are identified in
the application and registration at issue. See Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (goods as
identified in involved application and registration compared); Octocom Sys., Inc. v.
Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Serial No. 77530392
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See also, Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001
(Fed. Cir. 2002). Here, the subject application and the cited registration involve goods
that are in part legally identical. Both Applicant and registrant identify “dietary
supplements.” Applicant has no restriction as to the organic nature of the goods, and
thus they may include the organic ingredients identified in registrant’s identification
of goods. Further, registrant’s food and herbal supplements encompass Applicant’s
“nutritional supplements, namely, sport nutrition.” See, e.g., 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.’”). In view thereof, this du Pont factor weighs
in favor of finding a likelihood of confusion.
Established, likely-to-continue channels of trade and classes of consumers
Because the goods are legally identical, in part, and neither the cited registration
nor Applicant’s application contains any limitations on the channels of trade and
classes of purchasers, we must presume that the channels of trade and classes of
purchasers are the same. See Stone Lion, 110 USPQ2d at 1161; 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); American Lebanese Syrian Associated Charities Inc. v. Child Health
Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011). See also In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no
evidence regarding channels of trade and classes of consumers, the Board was
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entitled to rely on this legal presumption in determining likelihood of confusion). As
such, the factors regarding the similarity or dissimilarity of established, likely to
continue trade channels and classes of purchasers favor a finding of likelihood of
confusion.
Similarity or Dissimilarity of the Marks/Strength
We now turn to a consideration of the marks, keeping in mind that when marks
would appear on virtually identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion declines. Century 21 Real Estate
Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992). We compare the marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Id. at 1692. 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 that confusion as to the source of the services offered under the respective
marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1721 (Fed. Cir. 2012). Under actual marketing conditions,
consumers do not necessarily have the luxury of making side-by-side comparisons
between marks, and must rely upon their imperfect recollections. Dassler KG v. Roller
Derby Skate Corp., 206 USPQ 255, 259 (TTAB 1980). The focus is on the recollection
of the average purchaser, who normally retains a general rather than a specific
impression of trademarks. In re Assoc. of the United States Army, 85 USPQ2d 1264
(TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
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Although marks must be compared in their entireties, there is nothing improper
in stating that, for rational reasons, more or less weight has been given to a particular
feature of a mark. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir.
1985). In this case, SPARTAN is the dominant feature of both Applicant’s mark and
the cited mark. The word ORGANICS in the cited mark, which has been disclaimed,
is descriptive and, as we discussed in connection with the disclaimer requirement, so
is the term MEAL in Applicant’s mark. Thus, it is the word SPARTAN in each mark
that consumers will look to as the source-identifying element. The differences in
appearance and pronunciation resulting from the additional descriptive words in
each mark are not sufficient to distinguish the marks. As far as meaning, SPARTAN
has the same meaning in each mark. Although the additional words MEAL and
ORGANICS have different meanings, their meanings are related insofar as a meal
may be made of organic ingredients. Applicant has not offered any argument
regarding any dissimilarity of the marks.
Applicant has, however, argued that SPARTAN is a weak term, asserting that
As evidenced with hundreds of applications and
registration[s] submitted on May 10, 2009 and November
9, 2014, the cited registration is weak because it exists in
[a] crowded field of similar marks that use the term
SPARTAN. In a crowded field of similar marks, each
member of the crowd is relatively weak in its ability to
prevent use by others in the crowd.15

15 Applicant’s brief at 1, 15 TTABVUE 2. We note that the TESS records for application Serial
Nos. 78563785 and 85338426 submitted by Applicant are incomplete, and we cannot even
determine from what has been submitted whether the mark registered.
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In addition to the more than 100 third-party registration printouts from the Office’s
TESS database containing the term SPARTAN, the record includes (i) a webpage, a
screen shot from MySpace TV Videos and a screenshot from YouTube, all three for
SPARTAN ENERGY DRINK,16 and (ii) search results for applications and
registrations on the Office’s TESS database yielding over 125 “live” registrations and
applications, with many of the registrations listed being duplicative of the noted
third-party registration printouts.17
Regarding the applications, which number under 50 and appear only on search
results on the TESS database, we note that applications are only proof that an
application has been filed and thus are without probative value to the likelihood of
confusion issue. See Jetzon Tire & Rubber Corp. v. General Motors Corp., 177 USPQ
467 (TTAB 1973). Additionally, the search results have limited probative value
because they do not identify the goods on which the mark is used, or, to the extent
they list the same registrations for which Applicant submitted registration printouts,
are duplicative of other evidence. The evidence of actual use, i.e., the SPARTAN
ENERGY DRINK material, is insufficient in quantity to be persuasive as to the
purported weakness of SPARTAN.
Regarding the registration evidence, even where the record lacks proof of actual
use of similar marks by third-parties and the extent of such third-party use, third-
party registration evidence may show that a term carries a suggestive connotation in

16 Resp. May 10, 2009, TSDR 33-35.
17 Id., TSDR 3-8.
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the relevant industry and therefore may be considered somewhat weak. Jack
Wolfskin Ausrustung Fur Draussen GmbH v. New Millennium Sports, S.L.U., 797
F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS
Enterprises LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015). The
registrations submitted by Applicant, however, are not for goods of the type identified
in the application and cited registration. Rather, they are for varied goods such as
hacksaw blades, refined petroleum, condoms, water heaters, clothing, educational
services, stock brokerage services, and medical and surgical devices. The
registrations tell us little about any weakness that the term SPARTAN might have
among customers of Applicant and registrant because the third-party goods are so
different from Applicant’s and registrant’s goods. This case differs from Jack Wolfskin
and Juice Generation, where the third-party registrations involved the same goods
and services at issue. Further, third-party registrations are “not evidence that the
registered marks are actually in use or that the public is familiar with them.” In re
Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1167 n.5 (TTAB 2013) (citing In
re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)).
Thus, Applicant’s evidence does not demonstrate that SPARTAN is weak as
applied to the goods at issue in this appeal. And even if SPARTAN were a weak term
in view of the number of registrations (albeit for different goods than those involved
here and for unrelated services), we find that the second descriptive term in each of
the two-term marks is not sufficiently distinctive to distinguish the marks, especially
here where the goods are legally identical to one another.
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Thus, we find the marks to be similar in sound, sight, meaning and commercial
impression due to the shared term SPARTAN, and find that the factor regarding the
similarity of the marks favors a finding of likelihood of confusion.
Balancing the factors
We have found that Applicant’s mark and the cited mark are similar, the goods
are, in part, legally identical and are provided to the same classes of purchasers
through the same trade channels. We therefore find that there is a likelihood of
confusion between Applicant’s mark for “dietary and nutritional supplements;
nutritional supplements, namely, sport nutrition; dietary drink mix for use as a meal
replacement; excluding products for prostate health” and registrant’s mark for
“dietary supplements, food supplements and herbal supplements, all featuring
organic ingredients.”
Decision: The refusal to register under Section 2(d) of the Trademark Act, the
requirements for a disclaimer of the term MEAL and for an amendment to the
description of the mark, and the rejection of the proposed amendment of the mark
are affirmed.