Torn & Glasser, Inc.

Trademark Trial and Appeal Board

Oct 20, 2010

No. 78967139 (T.T.A.B. Oct. 20, 2010)

Mailed: October 20, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

Torn & Glasser, Inc.
________

Serial No. 78967139
Filed: September 5, 2006
_______

Christine Meis McAuliffe, Holme Roberts & Owen LLP for Torn
& Glasser, Inc.

Kevon L. Chisolm, Trademark Examining Attorney, Law Office
103, Michael Hamilton, Managing Attorney.
_______

Before Holtzman, Mermelstein, and Bergsman, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:
Applicant seeks registration of the mark ISLAND
TROPICAL (in standard characters) for “fruit-based snack
food; snack mix consisting primarily of processed fruits,
processed nuts and/or raisins.”1
The examining attorney has refused registration, having
determined that registration of applicant’s mark would lead
to a likelihood of confusion in view of the prior

1 Based on an allegation of first use and use in commerce as of
August 1, 2000. In response to the Examining Attorney’s
requirement for a disclaimer of TROPICAL, applicant submitted a
claim of acquired distinctiveness as to the word TROPICAL,
pursuant to Trademark Act § 2(f). The examining attorney
THIS DECISION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78967139
2
registration of the mark TROPICAL ISLAND BLAST (in standard
characters) for “fruit based snack food, namely, dried fruit
mix,”2 pursuant to Trademark Act § 2(d); 15 U.S.C.
§ 1052(d). Applicant appeals from the examining attorney’s
final refusal.
We affirm.
I. Applicable Law
Our determination under Trademark Act § 2(d) is based
on an analysis of the probative facts in evidence that are
relevant to the factors bearing on the 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
Imp., 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

accepted applicant’s § 2(f) claim and withdrew the requirement
for a disclaimer.
2 Registration No. 3382922, issued February 12, 2008.
Serial No. 78967139
3
1098, 192 USPQ 24, 29 (CCPA 1976); In re Azteca Rest.
Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
II. Preliminary Matters
The Examining Attorney objected to consideration of
the nine exhibits attached to applicant’s main brief as
untimely.3 Ex. Att. Br. at 3. The Examining Attorney’s
objection is overruled with respect to Exhibits 1-8,
because this matter had all been submitted prior to appeal
or in connection with applicant’s request for
reconsideration. Exhibit 9, however, was not previously
submitted, and will not be considered.4 Trademark Rule
2.142(d) (“The record in the application should be complete
prior to the filing of an appeal.”). “[W]e will not
consider evidence that has been submitted for the first
time with applicant's brief.” In re wTe Corp., 87 USPQ2d
1536, 1537 n.2 (TTAB 2008).
In addition, applicant attached to its reply brief a
list of purported registrations comprising the words

3 We have remarked previously on the futility of attaching
evidence to Board briefs. Syngenta Crop Protection Inc. v. Bio-
Chek LLC, 90 USPQ2d 1112, 1116 (TTAB 2009) (attachments to briefs
will usually be ignored because they are generally either
untimely new evidence or unnecessary copies of previously-
submitted evidence). This is just as true in the ex parte
context as it was in Syngenta.
4 Exhibit 9 is an unsigned copy of a draft consent agreement
between applicant and the cited registrant. But even if it were
considered, an unsigned agreement is of no probative value.
Serial No. 78967139
4
“tropical,” “island,” or “blast.” This information will
not be considered because it was neither previously
submitted during examination, nor did the examining
attorney have an opportunity to respond to it.5
III. Discussion
A. Similarity of the Goods; Channels of Trade and
Class of Consumers

Applicant’s goods are identified as “fruit-based snack
food; snack mix consisting primarily of processed fruits,
processed nuts and/or raisins.” The goods in the cited
registration are “fruit based snack food, namely, dried
fruit mix.” Applicant’s “fruit-based snack food” clearly
encompasses the cited registrant’s “fruit based snack food,
namely, dried fruit mix,” and to that extent, the
identified goods are legally identical. Moreover,
applicant’s more narrowly-identified “snack mix consisting
primarily of processed fruits, processed nuts and/or
raisins,” appears to be highly similar, if not legally
identical, to the registrant’s goods.

5 In addition to being untimely, applicant’s list of
registrations is not sufficient to make the listed registrations
of record. In re Duofold, Inc., 184 USPQ 638, 640 (TTAB 1974).
But even if considered at face value, a list of registrations
without the corresponding goods is of little use in a likelihood
of confusion analysis. Nat’l Fidelity Life Ins. v. Nat’l Ins.
Trust, 199 USPQ 691, 694 n.5 (TTAB 1978) (list of registrations
without goods and services and other relevant information “has no
probative value”).
Serial No. 78967139
5
Applicant does not specifically address the similarity
of the goods in its brief, although the issue appears to be
subsumed in its argument regarding its consumers and
channels of trade. App. Br. at 6-7. Applicant argues that
Registrant and Applicant’s actual consumer base
and channels of trade in which the goods move are
completely different. Registrant sells “80
calorie” “snack fruits” ... for individual
consumer or family consumption. Applicant sells
its product in bulk, to large consumers, such as
corporate entities, restaurants, schools, or
other retail establishments.

App. Br. at 6 (emphasis added).
The problem with applicant’s argument is that this
proceeding concerns applicant’s right to registration of a
trademark, not applicant’s actual trademark use.6 Because
the scope of the registration applicant seeks is defined by
its application (and not by its actual use) it is the
application (and not actual use) that we must look to in
determining applicant’s right to register:
The authority is legion that the question of
registrability of an applicant's mark must be
decided on the basis of the identification of
goods set forth in the application regardless of
what the record may reveal as to the particular
nature of an applicant's goods, the particular
channels of trade or the class of purchasers to
which sales of the goods are directed.

Octocom Syst. Inc. v. Houston Computers Svcs. Inc., 918

6 The cases cited in support of applicant’s argument all concern
infringement, not registration, and are thus inapposite here.
Serial No. 78967139
6
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Likewise, in considering the scope of the cited
registration, we look to the registration itself, and not
to extrinsic evidence about the registrant’s actual goods,
customers, or channels of trade. In re Elbaum, 211 USPQ
639, 640 (TTAB 1981), citing Kalart Co., Inc. v. Camera-
Mart, Inc., 119 USPQ 139 (CCPA 1958).7 Consequently, the
goods set out in the cited registration are clearly not
limited to those sold in “‘80 calorie’ [packets] for

7 Applicant complains that in support of the proposition that
“registrability hinges on a comparison of Applicant’s goods as
described in the application with the goods described on the face
of the registration,” the “Examining Attorney cites only to
precedent from over 25 years ago....” Reply Br. at 7 (emphasis
in original). We assure applicant that the cases cited by the
Examining Attorney (and those cited herein) are still good law,
and that the stated principle remains a fundamental tenet of
trademark registration practice. See e.g., In re Davey Prods.
Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009); see generally,
TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 1207.01(a)(iii) (6th
ed., rev. 2 2010).
In re W.W. Henry Co., 82 USPQ2d 1213 (TTAB 2007), cited by
applicant, is not to the contrary. In Henry, the Board found
that the applicant’s goods and those of the cited registrant were
not closely related after an analysis of their respective goods
as written in the application and the cited registration. Id. at
1214-15. While in Henry we considered applicant’s extrinsic
evidence to understand the nature of the identified goods, see In
re Trackmobile, Inc. 15 USPQ2d 1152, 1154 (TTAB 1990), the Board
did not consider evidence of the applicant’s or registrant’s
actual use to narrow the scope of the identified goods, their
usual channels of trade, or their prospective purchasers, as
applicant urges us to do here. See Trackmobile at 1153 (“It is
clear that in determining the issue of likelihood of confusion in
ex parte cases, this Board must compare applicant’s goods as set
forth in its application with the goods as set forth in the cited
registration.”). And unlike the case in Henry and Trackmobile,
we do not need to resort to extrinsic evidence to understand the
Serial No. 78967139
7
individual ... or family consumption,” nor are applicant’s
goods limited to those sold “in bulk, to large consumers.”
See Reply Br. at 7. Those limitations are not to be found
in either the application on appeal or in the cited
registration. Contrary to applicant’s argument, the
identification of applicant’s goods and that in the cited
registration must be given their ordinary meaning, without
any extraneous limitations based on applicant’s or the
cited registrant’s actual business practices.
Further, in the absence of explicit limitations, we
must consider both the applicant’s and the registrant’s
consumers and channels of trade to include all of the
normal consumers and channels of trade for goods of the
type identified. It follows, then, that if the goods are
(at least in part) legally identical, then the consumers
and channels of trade must likewise be considered (at least
in part) legally identical. Genesco Inc. v. Martz, 66
USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-part identical
and in-part related nature of the parties’ goods, and the
lack of any restrictions in the identifications thereof as
to trade channels and purchasers, these clothing items
could be offered and sold to the same classes of purchasers

nature, usual channels of trade, or potential consumers for the
goods at issue in this case.
Serial No. 78967139
8
through the same channels of trade.”); In re Smith and
Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the
goods are legally identical, they must be presumed to
travel in the same channels of trade, and be sold to the
same class of purchasers”).
To be perfectly clear, we do not base our finding on
trade channels on the mere fact that both applicant’s and
registrant’s goods are available on the Internet. See App.
Br. at 6. We agree with applicant that this is of little,
if any, significance. “[T]he mere fact that goods and
services may both be advertised and offered through the
Internet is not a sufficient basis to find that they are
sold through the same channels of trade. The Internet is
such a pervasive medium that virtually everything is
advertised and sold through the Internet.” Parfums de
Coeur Ltd. v. Lazarus, 83 USPQ2d 1012, 1021 (TTAB 2007).
But in this case, neither applicant’s nor registrant’s
channels of trade are limited to the Internet – or to any
other particular channel of trade. Both must therefore be
construed to also include all other channels through which
such goods normally travel; and since the goods are
identical, those channels of trade must likewise be
considered to be identical, at least in part.
Serial No. 78967139
9
Applicant and the cited registrant share identical and
closely related goods, as well as overlapping customers and
channels of trade. These factors all favor a finding of a
likelihood of confusion.
B. The Similarity or Dissimilarity of the Marks in
Their Entireties

In a likelihood of confusion analysis, we compare the
marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay, 73
USPQ2d at 1692. “[T]he 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.” H.D. Lee Co. v.
Maidenform Inc., 87 USPQ2d 1715, 1727 (TTAB 2008). In
comparing the marks, we keep in mind that “[w]hen marks
would appear on virtually identical goods..., as is the
case here, the degree of similarity necessary to support a
conclusion of likely confusion declines.” In re Max
Capital Group Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010),
citing Century 21 Real Estate Corp. v. Century Life of Am.,
970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
Serial No. 78967139
10
Applicant contends that the marks create significantly
different commercial impressions, arguing that “the
difference in appearance of the two marks would be easily
recognizable,” that the registrant’s “mark consists of the
dominant term BLAST at the end,” that the marks sound
different, and that the marks differ in meaning.8 App. Br.
at 3-4.
Applicant’s mark is ISLAND TROPICAL, while the cited
registrant’s mark is TROPICAL ISLAND BLAST. The
similarities between the marks are readily apparent; both
comprise the same two first words (“ISLAND” and
“TROPICAL”). It is also clear that the marks are not
identical – the first two words in the marks are

8 As to the difference in meaning, applicant urges that its
ISLAND TROPICAL is one of the two TROPICAL marks in
Applicant’s family of TROPICAL products. ... Thus,
instead of using “tropical” as a descriptor of “island,”
resulting in the commonly recognized place, “tropical
island,” ISLAND is used as a descriptor of Applicant’s
co-existing TROPICAL brand of fruit snacks, resulting in
a variation of TROPICAL.
App. Br. at 4.
The evidence does not support applicant’s assertion of a family
of TROPICAL marks. But even if it did, the family of marks
doctrine is of no use to an applicant seeking to overcome a
§ 2(d) refusal. In re Cynosure Inc., 90 USPQ2d 1644, 1645-46
(TTAB 2009) (citing In re Lar Mor Int’l, Inc., 221 USPQ 180 (TTAB
1983); In re Ald, Inc., 148 USPQ 520, 521 (TTAB 1965) (“the fact
that applicant may possess a ‘family’ of marks ... is of no
particular significance”); In re U.S. Plywood-Champion Papers,
Inc., 175 USPQ 445, 446 (TTAB 1972)). See also Hornblower &
Weeks Inc. v. Hornblower & Weeks Inc., 60 USPQ2d 1733, 1736-37
Serial No. 78967139
11
transposed, and the registrant’s mark includes the final
word “BLAST,” which applicant considers to be the dominant
part of the cited registrant’s mark. App. Br. at 5; Reply
Br. at 6.
We do not agree with applicant that the term “BLAST”
dominates the cited registrant’s mark. First, it is often
the case that the last part of a mark is less influential
in forming a commercial impression than the first part.
See, e.g., Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9
USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part
of a mark which is most likely to be impressed upon the
mind of a purchaser and remembered.”).
Second, it seems to us that the term “BLAST” is
somewhat suggestive as used in this context. In this
regard, we note the following definition of “BLAST”:
blast
— n
9. slang (US) a very enjoyable or
thrilling experience: the party was a blast

COLLINS ENGLISH DICTIONARY – COMPLETE & UNABRIDGED (10th ed.) (online
at dictionary.reference.com (Oct. 18, 2010)).9 The term

(TTAB 2001) (the “family of marks argument can be used
offensively as a sword but not defensively as a shield”).
9 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
Serial No. 78967139
12
“BLAST” in the registrant’s mark thus appears to be used as
an intensifier, suggesting that consumption of registrant’s
goods is “a very enjoyable or thrilling experience.”
The appropriate perspective for considering marks
under Trademark Act § 2(d) is not that of a side-by-side
comparison. Puma-Sportschuhfabriken Rudolf Dassler KG v.
Roller Derby Skate Corp., 206 USPQ 255, 259 (TTAB 1980)
(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). Further, as we have held before,
the transposition of terms is not always sufficient to
distinguish the resulting marks. See In re Wine Society of
America Inc., 12 USPQ2d 1139, 1142 (TTAB 1989); In re
Nationwide Industries Inc., 6 USPQ2d 1882 (TTAB 1988) (“the
reversal in one mark of the essential elements of another
mark may serve as a basis for a finding of no likelihood of
confusion only if the transposed marks create distinctly
different commercial impressions” (citations omitted)).

format or have regular fixed editions. In re Red Bull GmbH, 78
USPQ2d 1375, 1377 (TTAB 2006).
While we readily acknowledge that the cited definition is not
the first listed sense of the word, it is nonetheless the
definition that most clearly applies to the identified goods. We
think it highly unlikely that a potential consumer of “dried
fruit mix” would associate the term “BLAST” in the registrant’s
mark with, for instance, a physical “explosion,” or “a sudden
loud sound.”
Serial No. 78967139
13
Applicant attempts to distinguish its ISLAND TROPICAL
mark from the TROPICAL ISLAND portion of the registrant’s
mark. The terms may have a slightly different connotation
– TROPICAL ISLAND suggests a product from (or having some
connection with) a tropical island, while ISLAND TROPICAL
implies a product with a “tropical” characteristic10 coming
from an island. But we think this is a very fine
distinction at best, and that the likely commercial
impressions of the mark are essentially the same. This is
particularly so in light of the goods at issue here, which
are likely to be purchased without extensive consideration.
Applicant points to the existence of several third-
party registrations for other marks (e.g., TROPICAL BLAST
for blended fruit drinks) which coexist with the cited
registration, and several (e.g., ISLAND OASIS, SMOOTHEES
ISLAND OASIS, and SMOOTHIE ISLAND) which coexist with each
other, and concludes that the examining attorney’s
“argument ... appears contrary to Trademark Office
precedent in how it views similarity in appearance of marks
as relevant to refusals for likelihood of confusion.” App.
Br. at 4-5.

10 In this regard, we note that applicant submitted a claim of
acquired distinctiveness with respect to “TROPICAL” in light of
the examining attorney’s evidence tending to show that the term
is descriptive of foods featuring tropical fruit or tropical
fruit flavors.
Serial No. 78967139
14
To the contrary, our task is to determine whether
there is a likelihood of confusion between applicant’s mark
and the mark in the registration cited by the examining
attorney as a bar to registration. We need not justify or
explain the registration of other marks (for other goods or
services) which are not before us. The decisions of
examining attorneys in approving such marks for
registration are not “precedent” which the Board must
follow. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001) (“[T]he Board ... must assess
each mark on the record of public perception submitted with
the application. Accordingly, this court finds little
persuasive value in the registrations that [applicant]
submitted to the examiner or in the list of registered
marks [applicant] attempted to submit to the Board.”).
Indeed, even if the registration of some or all of the
third party marks might be characterized as error – a
conclusion we need not and do not reach – “such errors do
not bind the USPTO to improperly register Applicant’s
mark[].” In re Shinnecock Smoke Shop, 571 F.2d 1171, 91
USPQ2d 1218, 1221 (Fed. Cir. 2009) (citing In re Boulevard
Entm't, 334 F.3d 1336, 67 USPQ2d 1475, 1480 (Fed. Cir.
2003)).
Serial No. 78967139
15
Finally, we note applicant’s argument that confusion
is unlikely because both it and the cited registrant
“display their house marks in conjunction with their
[applied-for and registered] marks.”11 Reply Br. at 4. It
is well-settled that this is an irrelevant consideration.
Neither applicant’s nor registrant’s house mark is included
in its application or registration, and neither applicant
nor the cited registrant is required to use its house mark
along with its applied-for or registered mark. “In
determining the applicant's right to registration, only the
mark as set forth in the application may be considered;
whether or not the mark is used with an associated house
mark is not controlling. Therefore the likelihood of
confusion must be determined by a comparison of the marks
themselves.” Frances Denney v. Elizabeth Arden Sales
Corp., 263 F.2d 347, 120 USPQ 480, 481 (CCPA 1959)
(citations omitted); In re Microsoft Corp., 68 USPQ2d 1195,
1198-99 (TTAB 2003); Interstate Brands Corp. v. McKee Foods

11 Applicant supports this conclusion by pointing to the specimens
submitted by both it and the cited registrant. While a specimen
may be one example of how an applicant is using its mark in
commerce at the time the specimen is submitted, we must instead
look to the drawing in the registration or application to
determine what is registered or sought to be registered. The
purpose of a specimen is to demonstrate that an applicant is
using the applied-for mark in commerce as a trademark. See
Century 21 Real Estate Corp. v. Century Life of Am., 10 USPQ2d
2034, 2035 (TTAB 1989). But the mark which is covered by a
Serial No. 78967139
16
Corp., 53 USPQ2d 1910, 1914-15 (TTAB 2000). We cannot
distinguish the marks on the basis of matter that does not
appear in either of them.12
Although applicant’s mark is not identical to that in
the cited registration, we find that the differences
between them are outweighed by their similarities. The
marks begin with the same two words and share very similar
commercial impressions. Although the mark in the cited
registration includes an additional term, that term appears
at the end of the mark and is somewhat suggestive of the
goods. As a result, it is unlikely to provide a
significant distinction between them. To the extent that
consumers notice the term BLAST in the cited registrant’s
mark (or its absence in applicant’s), or otherwise
distinguish the marks, they are likely to assume that the
associated products are variations originating from the
same source. In re West Point-Pepperell, Inc., 468 F.2d

registration is not limited to the particular display or trade
dress depicted on the specimens of record.
12 In re White Rock Distilleries Inc., 92 USPQ2d 1282 (TTAB 2009),
cited by applicant, is inapposite. In that case we held that “it
would not be reasonable to assume that applicant's ... mark would
be presented with the design element appearing in registrant's
mark.” Id. at 1284 (emphasis added). As is clear from the
quotation, in White Rock, we distinguished the marks on the basis
of a design element which was a part of the registrant’s mark but
not that of the applicant. By contrast, the allegedly
distinguishing matter in this case (applicant’s and registrant's
respective house marks) is not part of either mark as registered
or applied for.
Serial No. 78967139
17
200, 175 USPQ 558, 559 (CCPA 1972) (“The issue under § 2(d)
is not whether people will confuse the marks but whether
the marks will confuse people.” (citation omitted)). This
factor supports the refusal to register.
D. Actual Confusion
Applicant makes much of the fact that “[d]espite over
three years of simultaneous use, Applicant is not aware of
a single instance of actual confusion between Applicant’s
mark and Registrant’s mark.” App. Br. at 7; Reply Br. at
8. But as noted by the Examining Attorney, Ex. Att. Br. at
5, this argument is misplaced:
[A]pplicant's assertion that it is unaware of any
actual confusion occurring as a result of the
contemporaneous use of the marks of applicant and
registrant is of little probative value in an ex
parte proceeding such as this where we have no
evidence pertaining to the nature and extent of
the use by applicant and registrant (and thus
cannot ascertain whether there has been ample
opportunity for confusion to arise, if it were
going to); and the registrant has no chance to be
heard from.... Moreover, the test under Section
2(d) is not actual confusion but likelihood of
confusion.

In re Kangaroos U.S.A., 223 USPQ 1025, 1026-1027 (TTAB
1984) (citations omitted); In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003) (“The
lack of evidence of actual confusion carries little weight,
especially in an ex parte context.” (citation omitted)).
Serial No. 78967139
18
Here, applicant admits to a relatively short period
(three years) of concurrent use, the record does not
indicate the volume or geographical scope of either
applicant’s use or that of the cited registrant, and the
record is silent as to any knowledge of actual confusion
that may be possessed by the registrant.13 On this record,
we are unable to conclude that the lack of evidence of
actual confusion has any significance at all. Nike Inc. v.
WNBA Enters. LLC, 85 USPQ2d 1187, 1202 (TTAB 2007). We
accordingly consider this factor neutral in our analysis.
E. Potential Consent Agreement
Applicant complains that it is seeking the cited
registrant’s consent to registration of the subject mark,
and that “at a minimum, the Examining Attorney should have
suspended the disposition of this application for a
sufficient period of time to allow that [sic] affected
parties to complete negotiations and execute a consent to
register....” Reply Br. at 8. No such agreement has been

13 Even under more compelling circumstances, evidence of actual
confusion is notoriously difficult to come by, and reliance on
the lack of such evidence is questionable. Purchaser confusion
most often comes to light through customer complaints. But if
both products are of reasonable quality, confused customers are
unlikely to complain. And even when customers are disappointed,
purchasers will often simply stop purchasing the item rather than
take the time to complain.
Serial No. 78967139
19
submitted.14
While an agreement by the cited registrant consenting
to applicant’s registration would indeed be entitled to
“great weight,” e.g., In re Four Seasons Hotels Ltd., 987
F.2d 1565, 26 USPQ2d 1071, 1072 (Fed. Cir. 1993); Bongrain
Int'l (Am.) Corp. v. Delice De France, Inc., 811 F.2d 1479,
1485, 1 USPQ2d 1775, 1778 (Fed. Cir. 1987), it does not
appear on this record that applicant and the prior
registrant have reached any agreement. Moreover, the
Examining Attorney clearly did not err in failing to
suspend action while applicant attempted to secure such
consent.15 “As a general rule, the USPTO will not suspend
an application to give an applicant time to secure a
consent agreement.” TMEP § 716.02. Applicant cites no

14 Applicant submitted an unsigned draft of a consent agreement
between it and the cited registrant as an exhibit to its opening
brief. However, we have not considered this exhibit as it was
untimely submitted. See supra n.3, and accompanying text. But
even if it were timely, we would give this document no
substantive weight in our likelihood of confusion analysis,
because it does not evidence the registrant’s consent.
15 We address here only the examining attorney’s “failure” to
request suspension of this matter following applicant’s appeal.
The Board does not exercise supervisory authority over examining
attorneys; issues raised during prosecution of an application
which do not result in a final requirement or refusal, see
Trademark Rule 2.141(a), are not within the jurisdiction of the
Board. Relief from a refusal to suspend an application during
examination is available – if at all – by way of a timely
petition to the Director. See, e.g., Trademark Rule 2.146(a)(3).
Serial No. 78967139
20
reason why the “general rule” should not apply in this
case, and we see none.16
III. Conclusion
We have carefully considered the entire record and the
arguments of applicant and the examining attorney. To the
extent we have any doubt as to our conclusion, we must
resolve such doubt in favor of the prior registrant. In re
Hyper Shoppes (Ohio), Inc., 837 F.2d 840, 6 USPQ2d 1025
(Fed. Cir. 1988); In re Martin's Famous Pastry Shoppe,
Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984).
We conclude, in light of the identical and closely
related goods at issue, the similar marks, and the
overlapping customers and channels of trade, that use of
applicant’s mark on or in connection with the identified
goods is likely to cause confusion with the mark in the
cited prior registration.

16 Applicant argues that it has priority of use over the
registrant. If so, applicant might possibly have grounds to seek
cancellation of the cited registration (although we express no
opinion on the merits of such a claim), and doing so prior to our
decision would likely have been good cause for suspension of
action on the application or appeal. TMEP § 716.02(a)
(suspension of application); TRADEMARK BOARD MANUAL OF PROCEDURE
(“TBMP”) § 1213 (2d ed. rev. 2004) (suspension of appeal). But
applicant has not sought cancellation, and the USPTO’s policy is
clear that suspension will generally not be granted for mere
negotiations with a cited registrant. (Nor will we grant such a
suspension after issuance of a final decision. In re Vycom Elec.
Ltd., 21 USPQ2d 1799, 1800 (Comm'r 1986)).
Serial No. 78967139
21
Decision: The refusal to register under Trademark Act
§ 2(d) is accordingly affirmed.

.oOo.