Trilliant Food and Nutrition, LLC

Trademark Trial and Appeal Board

Dec 21, 2017

No. 87380935 (T.T.A.B. Dec. 21, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: December 21, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Trilliant Food and Nutrition, LLC
_____

Serial No. 87380935
_____

Kyle T. Peterson of Patterson Thuente Pedersen, PA,
for Trilliant Food and Nutrition, LLC.
Justin Miller, Trademark Examining Attorney, Law Office 125,
Mark Pilaro, Managing Attorney.
_____

Before Wellington, Heasley and Coggins,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Trilliant Food and Nutrition, LLC (“Applicant”) seeks registration on the Principal
Register of the mark VICTOR’S RESERVE (in standard characters, with “RESERVE”
disclaimed) for “coffee for use in single-serve brewing machines; tea” in International
Class 30.1

1 Application Serial No. 87380935 was filed on March 22, 2017, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act. 15 U.S.C. § 1051(b).
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s proposed mark, as used on its identified goods, so resembles the
previously registered stylized mark for “coffee” in International
Class 30 as to be likely to cause confusion or mistake, or to deceive.2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. For the following reasons, we affirm the refusal to register.
I. Analysis
We base our determination of likelihood of confusion under Trademark Act Section
2(d), 15 U.S.C. § 1052(d), on an analysis of all of the probative facts in evidence that
are relevant to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v.
Hargis Ind., Inc., 575 U.S. __, 135 S.Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also
In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003).
We have considered each relevant DuPont factor for which there is evidence or
argument, and have treated the other factors as neutral. See M2 Software, Inc. v. M2
Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark
Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we
have considered each factor for which we have evidence, we focus our analysis on
those factors we find to be relevant.”). Varying weights may be assigned to each

2 Registration No. 0068024 issued on the Principal Register on March 3, 1908, renewed.
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DuPont factor depending on the evidence presented. Citigroup Inc. v. Capital City
Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (factors “may play
more or less weighty roles in any particular determination”). In any likelihood of
confusion analysis, two key considerations are the similarities between the marks
and the similarities between the goods. In re i.am.symbolic, LLC, 866 F.3d 1315, 123
USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc.,
308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)) (“The likelihood of confusion
analysis considers all DuPont factors for which there is record evidence but ‘may focus
… on dispositive factors, such as similarity of the marks and relatedness of the
goods.’”); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122
USPQ2d 1030, 1032 (TTAB 2016) (citing Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)).
A. Similarity of the Marks
Under the first DuPont factor, we consider the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). Similarity in any one of these elements may be sufficient to support a
determination of likelihood of confusion. See Krim-Ko Corp. v. The Coca-Cola Co., 390
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F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either
form, spelling or sound alone is likely to cause confusion”); In re White Swan Ltd., 8
USPQ2d 1534, 1535 (TTAB 1988) (“In appropriate cases, a finding of similarity as to
any one factor (sight, sound or meaning) alone may be sufficient to support a holding
that the marks are … similar.”) (internal punctuation omitted).
Initially, we note that Applicant’s proposed mark VICTOR’S RESERVE
incorporates the entire literal element of Registrant’s mark, “VICTOR.” Likelihood of
confusion is often found where the entirety of one mark is incorporated within
another. See 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 likely to cause confusion with
BENGAL for gin); Johnson Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ 155, 156 (TTAB
1982) (applicant’s mark EBONY DRUM for hairdressing and conditioner likely to
cause confusion with EBONY for cosmetics).
Applicant argues that even though the two marks have VICTOR in common, its
VICTOR’S RESERVE mark differs from the cited mark (i) because its mark is spelled
differently, adding the possessive “S,” (ii) because it adds the word RESERVE, and
(iii) because the cited mark “incorporates a unique design element”―
.3

3 Applicant’s brief pp. 8-9, 4 TTABVUE 9-10.
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We agree with the Examining Attorney, however, that despite these minor
differences, the marks are more similar than dissimilar. Consumers encountering
Applicant’s mark are likely to first notice the identical lead term VICTOR. See Palm
Bay Imps. Inc., 73 USPQ2d at 1692 (“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 Am., 970 F.2d
874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks,
consumers would first notice the identical lead word) quoted in In re Mr. Recipe, LLC,
118 USPQ2d 1084, 1090 (TTAB 2016).
Applicant’s addition of an “’S” does little, if anything, to distinguish the terms, as
the possessive form merely suggests that the goods are possessed by and emanate
from the same source: VICTOR. See Southwestern Mgmt., Inc. v. Ocinomled, Ltd., 115
USPQ2d 1007, 1025 (TTAB 2015) (no meaningful distinction arises from the
possessive form of otherwise identical marks); In re Curtice-Burns, Inc., 231 USPQ
990, 992 (TTAB 1986) (finding the marks McKENZIE’S and McKENZIE “virtually
identical in commercial impression”); Winn’s Stores, Inc. v. Hi-Lo, Inc., 203 USPQ
140, 143 (TTAB 1979) (noting that “little if any trademark significance can be
attributed to the apostrophe and the letter ‘s’ in opposer’s mark”).
Similarly, Applicant’s addition of the nondistinctive disclaimed word RESERVE
at the end of its mark does little or nothing to create a distinct commercial impression.
Applicant’s disclaimer tacitly concedes the descriptiveness of RESERVE, a commonly
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used term that connotes a high level of quality of its goods.4 See In re Pollio Dairy
Prods. Corp., 8 USPQ2d 2012, 2014 n.4 (TTAB 1988) (“By its disclaimer of the word
LITE, applicant has conceded that the term is merely descriptive as used in
connection with applicant’s goods.”). Disclaimed matter that is descriptive or
laudatory of a party’s goods is typically less significant or less dominant when
comparing marks. See Citigroup v. Capital City Bank Group, 98 USPQ2d at 1257;
In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“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….”).
Applicant cannot avoid causing a likelihood of confusion by adopting the literal
element of Registrant’s entire mark and adding subordinate matter thereto. See In re
Integrated Embedded, 120 USPQ2d 1504, 1513 (TTAB 2016) (“…Applicant’s mark
BARR GROUP wholly encompasses the registered mark BARR, the only difference
being the addition of the nondistinctive term GROUP to Applicant’s mark which, as
discussed above, is disclaimed and descriptive of Applicant’s services….”); In re El
Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988) (finding MACHO and MACHO
COMBOS, with COMBOS disclaimed, confusingly similar).

4 The record provides examples of third-party coffee and/or tea producers using “reserve” to
denote their products. E.g., “Door County Coffee & Tea Co. Private Reserve,” “Kona Coffee &
Tea Private Reserve,” May 24, 2017 Office Action pp. 13, 25-26.
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The stylization of the cited mark, , does not distinguish it from
Applicant’s, for the applied-for mark is in standard characters, which could be
displayed in the same style. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1909 (Fed. Cir. 2012); Citigroup v. Capital City Bank Group, 98 USPQ2d at 1258-59;
Trademark Rule 2.52(a); 37 C.F.R. § 2.52(a); TRADEMARK MANUAL OF EXAMINING
PROCEDURE (“TMEP”) § 807.03(a) (Oct. 2017).
Applicant nonetheless contends that the marks differ in connotation and
commercial impression. Applicant argues that “A copy of the cited registrant’s
specimen [depicted below] was attached with Applicant’s response dated April 30,
2017. It shows the mark used in connection with an image of victorious horseback
riders. As such, the cited ‘VICTOR’ mark refers to the ‘Victory’ definition.”5
6
Applicant argues that its applied-for mark, in contrast, “refers to the name of a
person since Applicant already owns Registration 1,582,823 for VICTOR ALLEN’S

5 Applicant’s brief p. 9, 4 TTABVUE 10.
6 April 30, 2017 Response to Office Action p. 14.
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for nearly thirty years.”7 Applicant concludes that its applied-for mark, VICTOR’S
RESERVE, would thus be perceived as a brand extension that builds on its existing
goodwill in its registered mark VICTOR ALLEN’S.8
The trouble with Applicant’s argument is that the design on Registrant’s specimen
is not part of the cited registered mark. The design, depicting a charioteer driving
four horses, was in fact the subject of a separate registration that Registrant owned
until it expired.9 Thus, the proper comparison is between the marks’ literal elements,
VICTOR and VICTOR’S, each of which could convey either connotation: Victor (a
given name) or a victor (a winner). In fact, Applicant’s applied-for mark, with the
disclaimed suffix RESERVE, could easily be perceived as a high-quality brand
extension of Registrant’s mark. “[C]areful purchasers who do notice the difference in
the marks will not necessarily conclude that there are different sources for the goods,
but will see the marks as variations of each other, pointing to a single source.” In re
Hitachi High-Technologies Corp., 109 USPQ2d 1769, 1774 (TTAB 2014).
Thus, the two marks, taken in their entireties as to sight, sound, connotation, and
commercial impression, are more similar than dissimilar, and the first DuPont factor
weighs in favor of a likelihood of confusion.

7 Applicant’s brief p. 9, 4 TTABVUE 10.
8 Reg. No. 1,582,823, Applicant’s brief p. 1, 4 TTABVUE 2.
9 Reg. No. 0068037.
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B. Relatedness of the Goods.
We next address the second and third DuPont factors, “[t]he similarity or
dissimilarity and nature of the goods … as described in an application or
registration…” and “[t]he similarity or dissimilarity of established, likely-to-continue
trade channels.” DuPont, 177 USPQ at 567. “[T]he greater the degree of similarity
between the applicant’s mark and the cited registered mark, the lesser the degree of
similarity between the applicant’s goods or services and the registrant’s goods or
services that is required to support a finding of likelihood of confusion.” Time Warner
Entm’t Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB 2002).
Applicant maintains that the goods it intends to offer under its proposed
VICTOR’S RESERVE mark, “coffee for use in single-serve brewing machines; tea,”
are readily distinguishable from those offered under the cited mark, “coffee,” and that
its goods will travel in different trade channels to different, sophisticated purchasers.
“[T]he VICTOR’S RESERVE mark will only be used by consumers for use in single-
serve brewing machines. Consumers who purchase these specialized coffee products
are generally sophisticated and knowledgeable about machine compatibility for
specific single-serve coffee brewers,” Applicant argues.10
We are required to give full sweep to Registrant’s identified goods, construing
them to encompass all goods of the type identified. Levi Strauss & Co. v. Abercrombie
& Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013); Paula
Payne Prods. Co. v. Johnson Publ’g Co., Inc., 473 F.2d 901, 177 USPQ 76, 77-78

10 Applicant’s brief p. 4, 4 TTABVUE 5.
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(CCPA 1973); see Sw. Mgmt., v. Ocinomled, 115 USPQ2d at 1025. Here, Registrant’s
broadly worded identification of “coffee” encompasses Applicant’s narrowly worded
identification of “coffee for use in single-serve brewing machines.” See In re Hughes
Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015). The goods are thus, in
part, legally identical. See In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992);
In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). The Examining Attorney
corroborates this overlap by submitting evidence that the same entity (such as
Starbucks, Dunkin Donuts, and Peets) commonly produces various types of coffee,
including coffee for use in single-serve brewing machines.11
Given this legal identity, it is presumed that Registrant’s and Applicant’s coffee
goods travel in the same channels of trade, and are sold in the same establishments
(such as coffee shops and supermarkets) to the same class of customers (ordinary
coffee drinkers). See In re Viterra Inc., 101 USPQ2d at 1908, cited in In re Morinaga
Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1740 (TTAB 2016).
Applicant offers no evidentiary support for its assertion that consumers of single-
serve coffee pods or cups are more sophisticated or careful than other coffee
consumers, and since there is no restriction in the subject application and registration
as to price or quality, there is no reason to infer that the consumers of Applicant’s
coffee products will be particularly sophisticated, discriminating, or careful in making
their purchases. See Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899
(Fed. Cir. 2000); In re Bercut-Vandervoort & Co., 229 USPQ 763, 765 (TTAB 1986).

11 Examining Attorney’s brief, 6 TTABVUE 9-10; DunkinAtHome.com 5/24/2017, Peets.com
5/24/2017, Store.Starbucks.com 5/24/2017, May 24, 2017 Office Action pp. 27-32.
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We must base our decision on the least sophisticated potential purchasers. Stone
Lion, 110 USPQ2d at 1163. Furthermore, even if buyers of single-serve coffee pods
were deemed sophisticated, they could still infer from Applicant’s and Registrant’s
similar VICTOR marks that the respective goods emanate from the same source, or
from affiliated sources, as demonstrated by the Examining Attorney’s third-party
evidence. See Nat’l Novice Hockey League, 222 USPQ 638, 641 n.7 (TTAB 1984); In re
Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991).
The legal identity of the coffee goods, standing alone, supports a finding of
likelihood of confusion under the second and third DuPont factors. Consequently, we
need not make a separate determination with respect to the other goods, i.e., tea,
listed in the application. Tuxedo Monopoly Inc. v. General Mills Fun Group, 648 F.2d
1335, 209 USPQ 986, 988 (CCPA 1981); Bond v. Taylor, 119 USPQ2d 1049, 1052-53
(TTAB 2016) (“[A] likelihood of confusion may be found with respect to a particular
class based on any item within the identification of goods for that class.”).
Nevertheless, we note the Examining Attorney adduced evidence that companies that
offer tea (Applicant’s other identified good) commonly offer coffee under the same
trademark. For example:
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• Baltimore Coffee and Tea Company

12
• Peet’s

12 BaltCoffee.com 4/28/2017, April 29, 2017 Office Action pp. 7-8.
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13
• A & E Roastery

14

13 Peets.com 4/28/2017, April 29, 2017 Office Action pp. 11-12.
14 AERoastery.com 5/24/2017, May 24, 2017 Office Action pp. 19-24.
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These representative examples, coupled with five others in the record, support a
finding that coffee and tea are related products that consumers encounter emanating
from the same source, under the same marks. See, e.g., In re Davey Prods. Pty Ltd.,
92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d
1266, 1268-69 (TTAB 2009). Applicant does not controvert this third-party evidence
showing that tea and coffee are related goods. On consideration of all the evidence,
we find that “the respective products are related in some manner and/or … the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source.” Coach Servs., v. Triumph
Learning, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven
Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
For these reasons, the second and third DuPont factors favor a finding of
likelihood of confusion.
C. Third Party Marks on Similar Goods
Under the sixth DuPont factor, we consider “[t]he number and nature of similar
marks in use on similar goods.” DuPont, 177 USPQ at 567. Evidence of third-party
use bears on the strength or weakness of a registrant’s mark. In re i.am.symbolic, 123
USPQ2d at 1751. “Use evidence may reflect commercial weakness, while third-party
registration evidence that does not equate to proof of third-party use may bear on
conceptual weakness if a term is commonly registered for similar goods or services.”
Tao Licensing, LLC v. Bender Consulting Ltd., 2017 WL 6336243, 14, __ USPQ2d __
(TTAB 2017).
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Applicant’s position is that the “widespread registration” of marks incorporating
the word VICTOR in the relevant class makes the cited mark weak, such that minor
additions may effectively negate any confusing similarity.15 In support of this
position, it adduces evidence of three registrations:
• Reg. 4,152,370 for HUGO & VICTOR (stylized) for coffee and tea, among other
goods and services;

• Reg. 1,582,823 for VICTOR ALLEN’S for “coffee and tea”
(owned by Applicant); and

• Reg. 2,907,371 for VICTORY COFFEE for “coffee.”16

We find, however, that the probative value of these three registrations is limited
because (i) they are few in number, (ii) there is no evidence of the extent of the
registered marks’ use or recognition in commerce, and (iii) each registered mark
contains wording that distinguishes it from the cited mark.
Citing a few use-based registrations does not prove commercial weakness “because
third-party registrations standing alone, are not evidence that the registered marks
are in use on a commercial scale, let alone that consumers have become so accustomed
to seeing them in the marketplace that they have learned to distinguish among them
by minor differences.” In re Morinaga, 120 USPQ2d at 1745; see Couch/Braunsdorf
Affinity v. 12 Interactive, LLC, 110 USPQ2d 1458, 1476 (TTAB 2014) (finding sixth
DuPont factor neutral where third-party websites were not accompanied by any other
evidence indicating length of time the marks had been in use, their degree of

15 Applicant’s brief pp. 4-6.
16 TSDR printouts, April 30, 2017 Response to Office Action pp. 15-25.
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exposure, or popularity of the marks vis-à-vis the relevant purchasing public). The
Federal Circuit has held that evidence of extensive registration and use of a term by
others can be powerful evidence of the term’s conceptual weakness. Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797 F.3d 1363,
116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC,
794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015) cited in Tao Licensing v.
Bender Consulting, 2017 WL 6336243 at 14. But in Juice Generation, there were at
least twenty-six relevant third-party uses or registrations of record, see 115 USPQ2d
at 1672 n. 1, and in Jack Wolfskin, there were at least fourteen, 116 USPQ2d at 1136
n.2. Here, in contrast, Applicant’s citation to a paltry three registrations fails to “show
the sense in which a mark is used in ordinary parlance” or to demonstrate that it is
weak or diluted. Juice Generation, 115 USPQ2d at 1674. Furthermore, as the
Examining Attorney correctly observes, the three cited marks contain additional
names (HUGO in one registration, ALLEN’S in the other) or completely different
wording (VICTORY), all of which impart a different commercial impression from the
cited mark. See In re Integrated Embedded, 120 USPQ2d at 1513 (“The probative
value of Applicant’s evidence is further diminished inasmuch as many of the third-
party registrations, as discussed above, also include additional wording and design
elements not found in the cited registration or involved application, that engender a
different commercial impression from either mark.”).
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For these reasons, we find these three registrations insufficient to prove that the
cited mark is weak, or easily distinguished by the minor differences in Applicant’s
mark. The sixth DuPont factor is therefore neutral.
II. Conclusion
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant DuPont factors. We have found that
the marks at issue are similar, that Applicant’s identified goods are encompassed by,
and thus legally identical to, Registrant’s goods, that they would move in the same or
overlapping trade channels, and that they are offered to the same or overlapping class
of purchasers, a class that includes unsophisticated purchasers exercising ordinary
care in making their purchases. We have found that the evidence of third-party
registrations is insufficient to prove that the cited mark is weak. For these reasons,
we conclude, on balance, that Applicant’s proposed mark VICTOR’S RESERVE, as
used in connection with the goods identified in the application, so resembles the cited
mark for “coffee” as to be likely to cause confusion or mistake, or to
deceive under Section 2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s proposed mark VICTOR’S
RESERVE is affirmed.