Stinson Seafood Co., L. P.v.Triton Seafood Co.

Trademark Trial and Appeal Board

Nov 19, 1998

No. 91096313 (T.T.A.B. Nov. 19, 1998)

Paper No. 35
HRW
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB NOV. 19, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Stinson Seafood Company, L.P.
v.
Triton Seafood Company
_____
Opposition No. 96,313
to application Serial No. 74/384,650
filed on April 30, 1993
_____
Gordon H. S. Scott of Eaton, Peabody, Bradford & Veague for
Stinson Seafood Company, L.P.
Richard M. Saccocio for Triton Seafood Company.
______
Before Quinn, Walters and Wendel, Administrative Trademark
Judges.
Opinion by Wendel, Administrative Trademark Judge:
Triton Seafood Company has filed an application to
register the mark NEPTUNE’S for “fresh or frozen, cooked or
uncooked seafood products, namely, conch chowder, clam
fritters, ground conch, chopped conch, conch fritters and
conch fillets.”1

1 Ser. No. 74/384,650, claiming first use dates of May 24, 1990.
Opposition No. 96313
2
Stinson Seafood Company, L.P., has filed an opposition
to registration of the mark under Section 2(d) of the
Trademark Act, 15 USC § 1052(d), on the ground of
likelihood of confusion. Opposer alleges ownership of a
registration for the mark NEPTUNE for “canned sardines”;2
the similarity of opposer’s and applicant’s marks; the use
of both marks for products which would be considered
seafood by consumers; and the distribution of the goods of
both through the same channels of trade, namely, retail
grocery stores.
Applicant, in its answer, has denied the salient
allegations of the notice of opposition.
The record consists of the file of the involved
application and the trial testimony taken by both parties,
with accompanying exhibits. Both parties filed briefs on
the case, but no oral hearing was requested.
Opposer has established that, through several
predecessors-in-interest, opposer has continuously used the
mark NEPTUNE for canned sardines since about August 1899.
The original registration for the mark which issued in 19273
was inadvertently allowed to lapse in 1987, but a new

2 Reg. No. 1,583,811, issued Feb. 20, 1990, claiming first use
dates of Aug. 1899; combined Sections 8 and 15 declaration filed
and accepted.
3 Reg. No. 226,618, issued Apr. 12, 1927 for the mark NEPTUNE for
“canned fish, specifically canned sardines”; twice renewed until
Apr. 12, 1987.
Opposition No. 96313
3
registration (the pleaded registration) was obtained in
1990. The mark is used on an expensive, select grade of
sardines and sales of the NEPTUNE brand constitute from 3 to
4% of the total sales of sardines under several marks by
opposer, running from around $800,000 to $1,000,000 annually
in the years 1990-1995. Advertising is mostly carried out
indirectly by means of co-op advertising programs with
retailers. Advertising expenditures for the NEPTUNE product
were approximately $61,000 in 1995. The goods are sold
predominately in the states of New York, Ohio, Indiana,
Kentucky and Texas. According to opposer’s president,
Richard Klingman, opposer has plans to expand its use of the
NEPTUNE mark to cover a product line purchased from Gorton’s
Company, which includes canned clams, codfish cakes, clam
juice and chowders.
Applicant’s president, Alfredo Alvarez, testified to
use of the name ”Neptune” for types of seafood other than
those presently being sold in predecessor companies owned by
him since 1978 and the incorporation of the present company
for the sale of the products recited in the identification
of goods in 1987. Applicant purchases conch from importers
who obtain the product from Honduras and sells its goods
under the NEPTUNE’S mark almost exclusively to food service
distributors who in turn sell to restaurants. Products such

Opposition No. 96313
4
as conch fritter batter are sold in five pound plastic tubs.
Applicant’s NEPTUNE’S conch fritters and conch chowder
received awards from the Chefs in America Awards Foundation
in 1992 and its products are said to be considered the top
quality brand in the industry. Applicant does extensive
promotion of its products through trade shows and has a
marketing manager who carries out further promotional
activities by working with the distributors and their
restaurant customers. Its advertising expenses in 1996 were
$42,000 plus $10,000-12,000 for brochures. Applicant sells
its products mostly in the Southeast, and predominately in
Florida. Its sales volume in 1996 was approximately
$1,800,000 and has been increasing at a rate of 15-25% per
year. Applicant has started some direct sales to grocery
stores in Miami (less than 1% of its total sales), selling
its conch fritter mix and salted cod fritter mix in smaller
packaging to retail customers. Its objective is to expand
retail sales to the Caribbean area, since its conch products
have the greatest appeal to the Spanish population.
Priority is not an issue in view of opposer’s proof of
ownership of a valid and subsisting registration for its
mark NEPTUNE. King Candy Co., Inc. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
Accordingly, we look to the du Pont factors which are
most relevant to the determination of likelihood of
Opposition No. 96313
5
confusion under the present circumstances. See In re du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). We find that the most weight must be given to the
similarity or dissimilarity of the marks, the similarity or
dissimilarity of the goods, and the trade channels for the
respective products.
Applicant argues that opposer’s mark NEPTUNE and
applicant’s mark NEPTUNE’S create different commercial
impressions, in that applicant’s use of the possessive
coupled with a picture of the god Neptune results in an
association with the god, whereas opposer’s NEPTUNE only
results in an association with the sea. We do not agree.
In the first place, the design feature which applicant is
presently using is not part of the mark sought to be
registered. Neither is the trident which opposer uses on
its labels.4 Instead, we are limited to a comparison of the
words alone. Since the display of either of the marks might
be changed at any time, a present display cannot be relied
upon to establish the dissimilarity of the commercial
impressions created by the marks. See In re Melville Corp.,
18 USPQ2d 1386 (TTAB 1991). While trade dress may be
considered as evidence that a confusingly similar commercial
impression may be created, it cannot be relied upon to prove

4 The “trident” is known as the “three-pronged spear carried by
the classical god of the sea, Neptune.” The American Heritage
Dictionary, 1976.
Opposition No. 96313
6
the contrary. See Specialty Brands, Inc. v. Coffee Bean
Distributors, Inc., 748 F.2d 669, 223 USPQ 1281 (Fed. Cir.
1984). Thus, we find the marks to be virtually identical
not only in appearance and sound, but also to create
virtually identical commercial impressions. Applicant’s use
of the possessive is a minimal distinction, which is not
likely to be noticed or, if it is, to be remembered by
consumers. Whether the commercial impression is that of the
god Neptune or simply an association with the sea, either
mark is open to either interpretation. Further, since
Neptune is the god of the sea in Greek mythology, this is
not a viable distinction.
Turning to the goods of the parties, we cannot accept
applicant’s argument that opposer’s canned sardines would
not be considered “seafood” in the same manner as
applicant’s fresh and frozen conch products. Although
opposer’s canned fish is not likely to be sold in the same
section of a supermarket as fresh or frozen seafood, the
products all fall within the definition of seafood,
regardless of whether they are canned, fresh or frozen.5 As
such, the goods are closely related and their origination

5 We take judicial notice of the definition of “seafood” in
Webster’s Third New International Dictionary (1976) as “marine
fish and shellfish to be used as food.”
Opposition No. 96313
7
from a single source would be a reasonable assumption on the
part of purchasers.
Applicant attempts to draw an even greater distinction
between the products of the parties on the basis of the
respective channels of trade. As is evident from the
testimony introduced by applicant, applicant’s customers are
predominantly distributors who in turn sell to restaurants
or the like. At the present time, only a minimal amount of
its products is offered to the general public. Applicant
argues that it is clear that its products are intended for
restaurant use and that it is obvious from the recitation of
goods that these are the “usual customers” for the conch
products, citing Saab-Scania Aktiebolag v. Sparkomatic
Corp., 26 USPQ2d 1709 (TTAB 1993).
Opposer, on the other hand, strongly contends that
there are no limitations in the application which would
restrict the purchasers or the channels of trade for
applicant’s products. Opposer argues that the fact that
applicant presently sells its products in five pound tubs to
distributors that serve restaurants and other food service
establishments is irrelevant to the determination of
likelihood of confusion.
In Saab-Scania, supra at 1711, we set forth the well
established principle that, in the absence of limitations in
the application or registration, we must assume that the
Opposition No. 96313
8
products move through all the ordinary and usual channels of
trade for such goods to the usual customers for the
products. Evidence as to limitations in the present trade
channels and/or customers must be disregarded, without
similar restrictions in the recitation of goods.
Here there are no specific limitations in the
application as to the channels of trade or purchasers of
applicant’s seafood products. The fact that the products
are mainly conch products, which may have more appeal to
certain ethnic groups, or which are normally encountered by
most of the general public in restaurants, cannot serve to
restrict the open-ended identification of goods in the
application. We find no basis for assuming that the “usual
customers” for applicant’s products would inherently be
limited to its present customers. Furthermore, applicant
has admitted that it has plans to further expand the
marketing of its products on the retail level, to the
general public.
In the same manner, although opposer has not so argued,
since opposer’s registration does not contain any
limitations as to channels of trade, we must operate on the
assumption that its seafood products, namely, canned
sardines, may be sold to restaurants or other food servers,
as well as to the general public. See Castle & Cooke, Inc.
v. Robzens’, Inc., 189 USPQ 555 (TTAB 1976) [since neither
Opposition No. 96313
9
opposer’s “canned and fresh frozen fish” nor applicant’s
“fresh and frozen meats” restricted in identification of
goods, goods of each assumed to travel to both retail
outlets and to commercial and institutional users].
Consequently, we find the potential channels of trade and
range of customers for the seafood products to be the same
for both parties.
Applicant further argues that neither the mark NEPTUNE
nor NEPTUNE’S is strong; that registrations for NEPTUNE for
oils for cooking seafood and frozen chicken parts (later
cancelled) have issued since the issuance of opposer’s
registration; and that “Neptune” is a commonly used word.
But applicant has failed not only to introduce copies of
these alleged third-party registrations, but also to prove
on-going use of these marks. The fact that “Neptune” may be
a well-recognized word or mythological figure is irrelevant
to consideration of the arbitrary/suggestive nature of these
trademarks in connection with the identified goods.
Furthermore, applicant’s argument that opposer’s mark is
weak, because opposer uses it only for one grade of
sardines, which represents a small percentage of its total
sardine sales under several marks, is misdirected. It is
the extent of use of a similar mark by third parties for
similar goods which may lead to the conclusion that a mark
is weak, not use by a party of other marks for other
Opposition No. 96313
10
products or different grades of a single product. Moreover,
even if applicant had proven NEPTUNE to be a weak mark,
which it has not, weak marks nevertheless are entitled to
protection against the registration by a subsequent user of
the same or a similar mark for the same or closely related
goods. See Hollister Incorporated v. Ident A Pet, Inc., 193
USPQ 439 (TTAB 1976); The Sterling China Co. v. Sigma
Marketing Systems, Inc., 180 USPQ 671 (TTAB 1973).
We find no other du Pont factor which might be weighed
in applicant’s favor. The fact that there has been no
actual confusion, despite opposer’s long use of its mark and
applicant’s increasing sales, can readily be understood, in
view of the geographic separation in the present marketing
areas of the respective products.
Accordingly, we find that use by the parties of the
nearly identical marks NEPTUNE and NEPTUNE’S on the seafood
products recited in the registration and application will
result in the likelihood of confusion.
Decision: The opposition is sustained and registration
is refused to applicant.
T. J. Quinn
C. E. Walters
Opposition No. 96313
11
H. R. Wendel
Trademark Administrative Judges,
Trademark Trial and Appeal Board