True Blue Farms

Trademark Trial and Appeal Board

Dec 28, 2006

No. 76564036 (T.T.A.B. Dec. 28, 2006)

Mailed: December 28, 2006
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re True Blue Farms
________

Serial No. 76564036
_______

Scott W. Petersen of Holland & Knight LLC for True Blue
Farms.

Kelly A. Choe, Trademark Examining Attorney, Law Office 113
(Odette Bonnet, Managing Attorney).
_______

Before Hairston, Walters and Bergsman, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

True Blue Farms has filed an application to register
the mark TRUE BLUE FARMS in standard character form (FARMS
is disclaimed) for goods ultimately identified as
“blueberries.”1
The trademark examining attorney has refused to
register applicant’s mark under Trademark Act Section 2(d),

1 Serial No. 76564036, filed December 8, 2003, alleging a date of
first use anywhere of June 1986 and a date of first use in
commerce of September 2001.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76564036
2
15 U.S.C. § 1052(d), in view of two registrations owned by
different entities. The first cited registration is of the
mark TRUBLU and design shown below for “fresh citrous.”2

The second cited registration is of the mark
TRU-BLU-BERRIES in standard character form for
“blueberries.”3 The examining attorney also found
applicant’s identification of goods to be indefinite and
required that applicant specify the nature of its
“blueberries,” (i.e., “fresh,” “raw” or “processed”).
Further, the examining attorney noted that applicant is a
sole proprietorship comprising two persons and required

2 Registration No. 172065, issued August 21, 1923, fourth
renewal. The records of the USPTO show that when the
registration issued the identification of goods read “fresh
citrous and deciduous fruits.” The wording “and deciduous
fruits” was subsequently deleted. We note that “citrous” is a
variant spelling of “citrus.” The American Heritage Dictionary
of the English Language (New College Edition 1976).
3 Registration No. 668448, issued October 14, 1958, second
renewal.
Ser No. 76564036
3
that applicant specify the citizenship of each of the
persons. When the refusals and requirements were made
final, applicant filed this appeal. Applicant and the
examining attorney have filed briefs and applicant has
filed a reply brief.
At the outset, we note that applicant, in its reply
brief, states that its blueberries are “fresh” and that
each of the persons comprising the sole proprietorship is a
U.S. citizen. Inasmuch as applicant has complied with the
requirement to specify the nature of its blueberries, this
requirement is deemed moot. The application is deemed
amended to identify applicant’s goods as “fresh
blueberries.” With respect to the requirement to specify
the citizenship of the two persons comprising the sole
proprietorship, inasmuch as applicant has complied with the
requirement by indicating that the two persons are U.S.
citizens, this requirement is also deemed moot. However,
because a sole proprietorship generally means a business
which has only one owner, there is also a question as to
whether applicant should be identified as a sole
proprietorship if applicant has two owners. Thus, if
applicant ultimately prevails herein, the application will
be remanded to the examining attorney for clarification of
the entity type.
Ser No. 76564036
4
We turn then to the refusals to register under
Trademark Act Section 2(d). Our determination of the issue
of likelihood of confusion is based on an analysis of all
of the probative facts in evidence that are relevant to the
factors set forth in In re E. I. duPont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the goods
and/or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See
also, In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
Refusal based on Registration No. 668448
We begin by addressing the refusal in view of
Registration No. 668448 for the mark TRU-BLU-BERRIES for
“blueberries.” Considering first the goods, it is clear
that applicant’s “fresh blueberries” are encompassed within
registrant’s “blueberries.” Thus, the applicant’s and
registrant’s goods must be considered legally identical.
In view of the identical nature of the goods, we must
presume that applicant’s and registrant’s goods are
marketed in all normal trade channels to all the usual
Ser No. 76564036
5
purchasers for such goods. Moreover, we find that the
ultimate purchasers of these goods are ordinary consumers
who would not exercise a great deal of care in making their
decision to purchase the goods. Applicant has not
contended otherwise, but instead has focused its discussion
on the marks. Applicant argues that registrant’s mark
TRU-BLU-BERRIES is “different on its face” from applicant’s
mark TRUE BLUE FARMS and that the TRU-BLU portion of
registrant’s mark could be viewed as “an egregious
misspelling of ‘trouble.’” (Brief at 4). Thus, it is
applicant’s position that the marks are not similar.
With respect to the marks, we must determine whether
applicant’s mark and registrant’s mark, when compared in
their entireties, are similar or dissimilar in terms of
sound, appearance, connotation and commercial impression.
Although the marks must be considered in their entireties,
it is well-settled that one feature of a mark may be more
significant than another, and it is not improper to give
more weight to this dominant feature in determining the
commercial impression created by the mark. See In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir.
1985). Furthermore, 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
Ser No. 76564036
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similar in terms of their commercial impression that
confusion as to the source of the goods and/or services
offered under the respective marks is likely to result.
The focus is on the recollection of the average purchaser,
who normally retains a general rather than a specific
impression of trademarks. See Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106 (TTAB 1975). Finally, as our
primary reviewing court, the Court of Appeals for the
Federal Circuit, has observed, “[w]hen 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).
Although there are specific differences between
applicant’s mark TRUE BLUE FARMS and registrant’s mark
TRU-BLU-BERRIES, we find that, on balance, the similarities
outweigh the differences. In comparing the marks, we find
that the TRUE BLUE portion of applicant’s mark is likely to
be perceived as the expression “true blue.” We judicially
notice that the term “true blue” is defined as “Loyal or
faithful; staunch.” The American Heritage Dictionary of
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the English Language (4th ed. 2000).4 Further, we reject
applicant’s contention that the TRU-BLU portion of
registrant’s mark may be perceived by the relevant public
as a misspelling of the word “trouble.” Apart from the
fact that applicant has offered no support for its position
in this regard, we simply see no reason that the relevant
public would perceive TRU-BLU as “trouble.” Rather, we
find that the TRU-BLU portion of registrant’s mark is
likely to be perceived as an alternative form of the
expression “true blue.” As such, the TRU-BLU and TRUE BLUE
portions of the respective marks are substantially similar
in connotation. The remaining terms in the marks, FARMS
and BERRIES, are highly descriptive for applicant’s and
registrant’s goods, respectively. Thus, it is the TRU-BLU
and TRUE BLUE portions of the marks that are entitled to
greater weight in our likelihood of confusion analysis.
Also, as the Board has noted, “it is often the first part
of a mark which is most likely to be impressed upon the
mind of a purchaser and remembered.” Presto Products Inc.
v. Nice-Pak Products Inc., 9 USPQ2d 1895, 1897 (TTAB 1988).

4 The Board may take judicial notice of dictionary definitions.
University of Notre Dame du Lac v. J. C. Gourmet Food Imports,
Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
Ser No. 76564036
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Further, we find that TRU-BLU and TRUE BLUE are phonetic
equivalents and highly similar in appearance. The presence
of dashes and the absence of the letter “E” in the
individual terms “TRU” and “BLU” in the registrant’s mark
are not sufficient to distinguish the marks.
Thus, overall, given the above noted similarities in
sound, appearance and connotation, the marks TRUE BLUE
FARMS and TRU-BLU-BERRIES, when used in connection with
legally identical goods, engender a substantially similar
commercial impression.5
Accordingly, we find that the mark TRUE BLUE FARMS for
fresh blueberries is likely to cause confusion with the
mark TRU-BLU-BERRIES for blueberries.
Refusal based on Registration No. 172065
We now address the refusal in view of Registration No.
172065 for the mark shown below for “fresh citrous.”

5 We recognize that registrant’s TRU-BLU-BERRIES mark also may be
perceived as the words “TRU(E) and “BLU(E)BERRIES” rather than
the term “TRU(E) BLU(E)” and the word “BERRIES.” Although this
would result in registrant’s mark having a different connotation
from applicant’s mark, the similarities in appearance and sound
are nonetheless sufficient to find a likelihood of confusion. It
has been consistently held that similarity in any one of the
elements of sound, appearance or meaning is sufficient to support
a finding of likelihood of confusion. See Krim-Ko Corporation v.
The Coca-Cola Company, 390 F.2d 728, 156 USPQ 523 (CCPA 1968).
Ser No. 76564036
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We consider first the goods of applicant and
registrant. It is well settled that the question of
likelihood of confusion must be determined based on an
analysis of the goods or services recited in applicant’s
application vis-à-vis the goods or services recited in the
registration. Canadian Imperial Bank v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992); and The
Chicago Corp. v. North American Chicago Corp., 20 USPQ2d
1715 (TTAB 1991). Further, it is a general rule that goods
or services need not be identical or even competitive in
order to support a finding of likelihood of confusion.
Rather, it is enough that goods or services are related in
some manner or that some circumstances surrounding their
marketing are such that they would be likely to be seen by
the same persons under circumstances which could give rise,
because of the marks used or intended to be used therewith,
to a mistaken belief that they originate from or are in
some way associated with the same producer or that there is
an association between the producers of each parties’ goods
Ser No. 76564036
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or services. In re Melville Corp., 18 USPQ2d 1386 (TTAB
1991), and cases cited therein.
Here, we find that applicant’s and registrant’s goods
are related.6 Obviously, both applicant’s fresh blueberries
and registrant’s fresh citrous are fruits. The respective
goods may be sold in the same channels of trade to the same
classes of purchasers. The ultimate purchasers of fresh
blueberries and fresh citrous are ordinary consumers, who
would not exercise a great deal of care in making their
decision to purchase such goods. Further, these goods may
be purchased on the same shopping trip and even used in the
same recipes. Applicant has not disputed the relatedness
of the goods, but instead has focused its discussion on the
marks. In particular, applicant again argues that the
TRUBLU portion of registrant’s mark could be viewed as a
misspelling of the word “trouble.” In addition, applicant
contends that the design in the registrant’s mark is an

6 We note that the examining attorney submitted a number of
third-party registrations in support of her position that
applicant’s and registrant’s goods are related. However, in
reaching our finding, we have not relied on these registrations.
The registrations are for marks that cover blueberries, on the
one hand, and various types of deciduous fruits, on the other
hand. As previously indicated, deciduous fruits were deleted
from the cited registration. Thus, these registrations are not
particularly probative of whether fresh blueberries and fresh
citrous (the remaining goods in the registration) are related
goods.
Ser No. 76564036
11
important part of that mark and is sufficient to
distinguish the marks.
With respect to the marks, we again find that although
there are specific differences between applicant’s mark
TRUE BLUE FARMS and registrant’s mark TRUBLU and design, on
balance, the similarities outweigh the differences. For
the reasons previously discussed, we find that the term
TRUBLU in registrant’s mark is likely to be perceived as an
alternative form of the term TRUE BLUE and not as the word
“trouble.” As such, the TRUBLU and TRUE BLUE portions of
the respective marks are substantially similar in
connotation.
Further, because the word FARMS is descriptive of
applicant’s goods, applicant’s mark is dominated by the
term TRUE BLUE. Insofar as registrant’s mark is concerned,
it is dominated by the term TRUBLU. As the Board has
noted, a design element such as that appearing in
registrant’s mark is generally less important than the
literal portion of the mark in creating an impression. See
In re Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987).
Under actual marketing conditions, the public does not
necessarily have the opportunity to make side-by-side
comparisons between marks. Dassler KG v. Roller Derby
Skate Corp., 206 USPQ 255 (TTAB 1980). Here, it is the
Ser No. 76564036
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term TRUBLU that is most likely to be remembered by the
relevant public when seeing registrant’s mark. TRUBLU and
TRUE BLUE are phonetic equivalents and they are highly
similar in appearance. The absence of the letter “E” in
“TRU” and “BLU” in the registrant’s mark is not sufficient
to distinguish the marks.
Thus, overall, given the above noted similarities in
sound, appearance and connotation, the marks TRUE BLUE
FARMS and TRUBLU and design, when used in connection with
related goods, engender a substantially similar commercial
impression.
Accordingly, we find that the mark TRUE BLUE FARMS for
fresh blueberries is likely to cause confusion with the
mark TRUBLU and design for fresh citrous.
Applicant argues that marks consisting of or
containing the words “TRUE BLUE” or “TRU BLU” are weak
marks which are therefore entitled to only a limited scope
of protection. Specifically, applicant maintains that such
words have been frequently used in marks for a variety of
goods, including food products. In support of its claim,
applicant submitted a TARR printout of third-party
applications and registrations for TRUE BLUE/TRU BLU marks
and plain copies of ten registrations for such marks. In
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addition, applicant points to the coexistence on the
register of the two cited marks.
As often stated, third-party registrations are of
little weight in determining likelihood of confusion
issues. They are not evidence of use of the marks shown
therein and they are not proof that consumers are familiar
with such marks so as to be accustomed to the existence of
similar marks in the marketplace. See AMF Inc. v. American
Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268 (CCPA
1973). Moreover, third-party applications are evidence
only of the fact that they have been filed.
There are further problems with the third-party
registrations and applications in this case. The TARR
printout consists simply of a list of marks by registration
and/or serial number, and thus it fails to indicate the
particular goods in connection with which the marks are
registered or sought to be registered. Insofar as the
actual registration copies are concerned, we note that none
of the ten registrations covers fruits. Six of the
registrations cover food or beverages, goods which are
arguably related to fruits, but four registrations cover
goods which are far removed from fruit, i.e., “cut foliages
for sale only at wholesale”; “aluminum sulfate for
application to growing hydrangeas for altering their
Ser No. 76564036
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color”; “biological reagents for scientific and industrial
use, namely, plasmid DNA and phage”; and “smoking tobacco”.
These registrations obviously have little relevance.
Nevertheless, and aside from the absence of any
demonstrated instances of third-party use, we note that
even if marks which consist of or contain the words TRUE
BLUE/TRU BLU are considered to be weak, due to the somewhat
laudatory nature of the expression “true blue”, even weak
marks are entitled to protection where confusion is likely.
Here, notwithstanding any alleged weakness in the term TRUE
BLUE/TRU BLU, each of the registered marks is still
substantially similar in sound, appearance, connotation and
commercial impression to applicant’s mark.
Further, the coexistence on the register of the two
cited marks, although a factor in this case, does not
compel us to reach a different result here. While uniform
treatment under the Trademark Act is an administrative
goal, the Board’s task in an ex parte appeal is to
determine, based on the record before us, whether
applicant’s mark is likely to cause confusion with each of
the cited marks. As often noted by the Board, each case
must be decided on its own merits. We are not privy to the
records in the files of the two cited marks and, moreover,
the determination of registration of particular marks by
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examining attorneys cannot control the result in another
case involving a different mark. See In re Nett Designs
Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)
(“Even if some prior registrations had some characteristics
similar to [applicant’s application], the PTO’s allowance
of such prior registrations does not bind the Board or this
court.”)
Finally, to the extent we have any doubt, we resolve
it as we must, in favor of each of the registrants. In re
Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025
(Fed. Cir. 1988); In re Pneumatiques, Caoutchouc
Manufacture et Plastiques Kleber-Colombes, 487 F.2d 918,
179 USPQ 729 (CCPA 1973).
In sum, we conclude that persons familiar with the
mark TRU-BLU-BERRIES for blueberries or with the mark
TRUBLU and design for fresh citrous, would be likely to
believe, upon encountering applicant’s mark TRUE BLUE FARMS
for fresh blueberries, that applicant’s goods and either
registrant’s goods originated with or are somehow
associated with or sponsored by the same entity.
Decision: The refusals to register under Section 2(d)
of the Trademark Act in view of Registration Nos. 172065
and 668448 are affirmed.