Tyson Foods, Inc.

Trademark Trial and Appeal Board

Aug 9, 2016

No. 86533628 (T.T.A.B. Aug. 9, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: August 9, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Tyson Foods, Inc.
_____

Serial No. 86533628
_____

Chase C. Webb and Clifford C. Dougherty III of McAfee & Taft,
for Tyson Foods, Inc.
Brittney L. Cogan, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
_____

Before Bergsman, Gorowitz and Heasley,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Tyson Foods, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark RED LABEL (in standard characters) for “chicken for sale to foodservice
institutions” in International Class 29.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1502(d), on the ground that

1 Application Serial No. 86533628 was filed on February 12, 2015, based upon Applicant’s
claim of first use anywhere and use in commerce since at least as early as February 2010.
Serial No. 86533628
- 2 -
Applicant’s mark, when used on or in connection with the identified goods, so
resembles the mark in U.S. Registration No. 4412555, RED LABEL (in standard
characters) for “frozen fish and seafood” in International Class 29,2 as to be likely to
cause confusion, to cause mistake, or to deceive.
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
In her final Office Action, the Examining Attorney submitted as evidence pages from
food suppliers’ websites, to show that chicken and seafood (Applicant and Registrant’s
respective goods) may emanate from the same sources.3 In that same Office Action,
the Examining Attorney also made of record two registrations on the Principal
Register for marks used on both poultry and fish or seafood.4 To help rebut the
Examining Attorney’s evidence, Applicant attached to its brief on appeal Exhibits A
through E, consisting of additional screenshots from five of the cited food suppliers’
websites.5 Applicant’s brief also attached as Exhibits F and G screenshots from the
websites of the two food companies whose registrations were cited.6
The Examining Attorney objects that that Applicant’s attached exhibits are

2 Registration No. 4412555, issued on the Principal Register on October 8, 2013.
3 Office Action of November 12, 2015 at pp. 6-31, 40-58.
4 Office Action of November 12, 2015 at pp. 32-36.
5 Applicant’s brief, 4 TTABVUE 15-26.
6 Applicant’s brief, 4 TTABVUE 27-29.
Serial No. 86533628
- 3 -
untimely, as the record in an application should be complete prior to the filing of an
appeal, and exhibits attached to a brief that were not made of record during
examination generally will not be considered. Trademark Rule 2.142(d), 37 CFR §
2.142(d); In re Compania de Licores Internacionales S.A., 102 USPQ2d 1841, 1843
(TTAB 2012).7
As Applicant correctly notes, however, the Trademark Trial and Appeal Board
Manual of Procedure (TBMP) provides an exception to that general rule:
However, if … the examining attorney submits excerpts from articles
during examination, the nonoffering party may submit the complete article,
even if such submission is made after the appeal is filed. If the nonoffering
party wishes to have the entire article considered, the better practice is to
submit the article with a request for remand. However, because the party
submitting the excerpt of the article had the opportunity to review the
entire article, if the article is submitted with an appeal brief the Board
need not remand the application, and may instead consider the article as
part of the record.

TBMP § 1207.01.
This principle is illustrated in In re Bed & Breakfast Registry, 791 F.2d 157, 229
USPQ 818 (Fed. Cir. 1986). In that case, the examining attorney’s final Office Action
made of record two articles found in an online Nexis search. The applicant included
more extensive excerpts of those same articles in its brief before the Board, showing
additional text qualifying the examining attorney’s excerpts. On appeal, the Federal
Circuit held that the additional text was entitled to be considered by the Board: “Let
it be clear that by citing only a portion of an article, that portion is not thereby
insulated from the context … whence it came.” Id. at 820.

7 Examining Attorney’s brief, 6 TTABVUE 8.
Serial No. 86533628
- 4 -
Although the present appeal concerns food suppliers’ web pages rather than
articles, the same principle applies. The Examining Attorney had the opportunity to
review the suppliers’ entire websites, and is not prejudiced by Applicant’s
introduction of additional screenshots from those sites. Consequently, Exhibits A
through E to Applicant’s brief will be considered. Exhibits F and G do not fall under
this exception, and will not be considered.
II. Analysis
Our determination of likelihood of confusion under Section 2(d) of the Trademark
Act 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. 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., __U.S. __, 135 S.Ct.1293, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each DuPont factor that is relevant and for which there is evidence of
record. See M2 Software, Inc. v. M2 Communications, Inc., 450 F.3d 1378, 78 USPQ2d
1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. and H.J. Heinz Company 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.”). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods. See Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
See also In re i.am.symbolic, LLC, 116 USPQ2d 1406, 1409 (TTAB 2015).
Serial No. 86533628
- 5 -
A. Comparison of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks as compared in their entireties, taking into
account their appearance, sound, connotation and commercial impression. Palm Bay
Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005); In re Midwest Gaming & Entm’t LLC, 106
USPQ2d 1163, 1165 (TTAB 2013).
Applicant and Registrant’s RED LABEL marks are identical. Both appear as
standard character marks, which means that Registrant’s mark may be depicted in
any font size, style or color that Applicant might adopt for its mark. In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1909-11 (Fed. Cir. 2012); Citigroup Inc. v. Capital
City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); In re
Strategic Partners Inc., 102 USPQ2d 1397, 1399 (TTAB 2012). There is no suggestion
that the marks are pronounced differently. Their overall commercial impression is
the same.
The identity between the marks is a DuPont factor that “weighs heavily in favor
of a finding of likelihood of confusion.” i.am.symbolic, 116 USPQ2d at 1411. Accord
Midwest Gaming, 106 USPQ2d at 1165 (“In short, we find that the marks are
identical. This finding under the first DuPont factor strongly supports a conclusion
that a likelihood of confusion exists.”); Davey Prods., 92 USPQ2d 1198, 1202 (TTAB
2009) (“[W]e find that applicant’s DAVEY mark and the cited registered DAVEY
mark are identical in terms of appearance, sound, connotation and commercial
Serial No. 86533628
- 6 -
impression. We find that the first du Pont factor weighs heavily in favor of a finding
of likelihood of confusion.”).
B. Similarity and Nature of the Goods, Channels of Trade and Sophistication of
Purchasers
The next step in our analysis is to compare the goods identified in the
application with the goods identified in the cited registration. See Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014); Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990). See also, Hewlett-Packard Co. v. Packard Press
Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002).
The respective goods in this case are Applicant’s “chicken for sale to foodservice
institutions” and Registrant’s “frozen fish and seafood,” both sold under the RED
LABEL mark.
Where identical marks are involved, as is the case here, the degree of similarity
between the goods required to support a finding of likelihood of confusion declines.
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012) (“Where, as in this
case, applicant’s mark is identical to opposer’s … mark, there need only be a viable
relationship between the goods to find that there is a likelihood of confusion.”).
Accord Helene Curtis Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624
(TTAB 1989). “[E]ven when goods or services are not competitive or intrinsically
related, the use of identical marks can lead to the assumption that there is a common
source.” In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993).
Serial No. 86533628
- 7 -
There can be little dispute that these goods are similar in nature, as chicken, fish
and seafood can be used interchangeably as appetizers or entrees, or in salads and
sandwiches. See e.g., Ralston Purina Co. v. Old Ranchers Canning Co., Inc., 199
USPQ 125, 127 (TTAB 1978) (boned chicken and tuna fish can be substituted for one
another in salads, sandwiches, and the like). In the first Office Action, the Examining
Attorney attached evidence showing that large retailers such as Target and Costco
sell chicken, fish and other seafood products to the general public under the same
marks.8
Applicant does not dispute the similar nature of the goods per se, but maintains
that the Examining Attorney’s evidence is not on point, as its goods are not directed
to retail consumers,9 but to foodservice institutions, which are more sophisticated
purchasers than the general public.
The subject Application expressly restricts its channel of trade to a certain
class of customers, “foodservice institutions.” Foodservice institutions are
“businesses, institutions, and companies responsible for any meal prepared outside
the home. This industry includes restaurants, school and hospital cafeterias, catering
operations, and many other formats.”10 Applicant agrees that foodservice institutions
include “restaurants, schools, colleges and universities, hospitals and military

8 Office Action of May 15, 2015, pp. 4-14.
9 Applicant’s Response to Office Action, Nov. 4, 2015, p. 1.
10 Office Action of Nov. 12, 2015, p. 37, citing www.en.Wikipedia.org/wiki/Foodservice
11/06/2015.
Serial No. 86533628
- 8 -
installations….”11 Since the Application limits its identified class of purchasers to
foodservice institutions, and the cited Registration does not, the only point of overlap
is foodservice institutions.12 Cf. Calypso Technology Inc. v. Calypso Capital
Management LP, 100 USPQ2d 1213, 1222 (TTAB 2011) (Registrant’s identified
services were limited to financial institutions. “Therefore, the only overlap in terms
of customers for defendant’s services are financial institutions as well.”).
Applicant argues that “because food service institutions are the only potential
overlap of purchasers, a great deal of weight must be given to the fact that foodservice
institutions are sophisticated purchasers who exercise a high degree of care when
purchasing goods.”13 Although there is no record evidence to support this assertion,
it stands to reason that institutional purchasers will exercise greater care in making
their purchases than the general purchasing public, so we will assume that this
assertion of sophistication and care is true. See In re Thomas H. Wilson, 57 USPQ2d
1863, 1866 (TTAB 2001) (assuming wholesalers and storeowners are sophisticated
purchasers). Purchaser sophistication or degree of care may tend to minimize
likelihood of confusion. Palm Bay Imports, 73 USPQ2d at 1695.
In order to show that this relevant class of institutional customers would likely
believe that the goods of Applicant and Registrant emanate from the same source,
the Examining Attorney has made of record excerpts from various commercial

11 Applicant’s brief, p. 6, 4 TTABVUE 7.
12 “Applicant does not disagree with the Examining Attorney that the mark of the Cited
Registration covers frozen fish and seafood for sale to foodservice institutions.” Applicant’s
brief, p. 4, 4 TTABVUE 5.
13 Response to Office Action of Nov. 4, 2015, p. 1. Applicant’s brief, p. 4, 4 TTABVUE 5 et seq.
Serial No. 86533628
- 9 -
websites offering chicken and fish or other seafood under the same mark to
foodservice institutions. E.g.:
MarxFoods—A company whose “traditional customers are restaurants” provides
poultry, fish and other seafood “packaged for restaurant use” under the trademark
MarxFoods.14

Nueskes—Provides “premium quality” smoked meats, poultry and seafood
specialties to its customers, which include “professional chefs, food service
distributors & specialty retailers” under the Nueske’s ® trademark.15

Metropolitan—Provides meat, seafood, and poultry under the trademark
Metropolitan, and under its logo:16

AdvancePierre® Foods—Is a “manufacturer” and supplier of meat, poultry and
seafood (in the form of fish puree) to “foodservice, retail, schools and convenience
channels across the United States under its trademark,” AdvancePierre.® 17

Wholey®--Provides fish, seafood and chicken under that trademark.18

B&MProvisions—Provides meat, chicken, fish and other seafood to restaurants,
facilities and the public.19

The Examining Attorney has also submitted use-based, third-party registrations,
each owned by a single registrant that supplies chicken, fish and seafood to
foodservice institutions--e.g.,

14 Office Action of November 12, 2015, pp. 6-17.
15 Office Action of November 12, 2015, pp. 18-23.
16 Office Action of November 12, 2015, pp. 24-25.
17 Office Action of November 12, 2015, pp. 26-31.
18 Office Action of November 12, 2015, pp.
19 Office Action of November 12, 2015, pp. 51-58.
Serial No. 86533628
- 10 -
GOLBON, Reg. No. 3622832 owned by Oppenheimer Companies, Inc., for inter
alia “procurement services, namely, purchasing food products and foodservice
industry products for others; distributorship services in the fields of food
products and foodservice industry products” and “fresh, and frozen meat,
poultry, and seafood.”

SMARTFARE, Reg. No. 3019648 owned by Good Source Solutions, Inc., for
inter alia “vitamin and mineral fortified meat, fish and poultry, sold to
foodservice operations and not for retail.”20

Applicant responds: “In this case, although chicken and frozen fish and seafood
may be distributed to foodservice institutions by the same company, sophisticated
foodservice buyers are not likely to think that such goods are manufactured or
produced by the same company even if the goods are identified by the same mark.”21
See Calypso Technology, 100 USPQ2d at 1222 (TTAB 2011) (sophisticated purchasers
aware of practices in industry, and recognize that certain goods and services do not
emanate from a single source). On this ground, Applicant endeavors to distinguish
the Examining Attorney’s evidence of the same purveyors supplying chicken, fish and
other seafood to foodservice institutions, e.g.:
Marx Foods’ website, MarxFoods.com, states that “traditionally, we’re a
boutique high-end distributor.”22

Nueske’s website, Nueskes.com, shows that it appears to be in the business of
“smoking meats, rather than manufacturing or producing the actual meat
itself.”23

AdvancePierre Foods’ website, AdvancePierre.com, appears to show that that
it only sells seafood on its retail product lines. The fish puree no longer appears

20 Office Action of Nov. 12, 2015, pp. 32-36.
21 Applicant’s brief, p. 7, 4 TTABVUE 8 (emphasis in original).
22 Applicant’s brief, p. 8, Exhibit A, 4 TTABVUE 9, 15.
23 Applicant’s brief, p. 8, 4 TTABVUE 9.
Serial No. 86533628
- 11 -
on its web pages of product lines sold to foodservice institutions.24

B&M Provisions’ website, BandMProvisions.com, shows that “Although B&M
Provisions appears to have a butcher shop, it too seems to be more of a
foodservice distributor rather than a producer and/or manufacturer. Evidence
of this can be seen on its website where it proclaims to be ‘[t]he Lehigh Valley’s
Leading Foodservice Distributor’”25

From the above examples, plus its own experience, Applicant concludes that
“chicken and frozen fish and seafood normally move through the same trade channels
from a single manufacturer or producer to foodservice institution purchasers,”26 who
presumably would be sophisticated enough to appreciate the distinction, thereby
minimizing the likelihood of confusion.
Applicant admits, though, that there “may be a few exceptions” that
manufacture, produce and distribute poultry and seafood to food service
institutions:27
Metropolitan Meat Seafood & Poultry, it notes, has processing areas for poultry
and seafood, but because it has a list of featured suppliers, “there is still some
question as to whether it is actually a producer or manufacturer of the poultry
and seafood itself or merely a distributor as it claims.”28

Wholey “may appear to produce both chicken and seafood, [but] there is still
some question as to whether that is the case,” as it sells another brand of
chicken.29

Applicant attempts to distinguish the two cited registrations for GOLBON and

24 Applicant’s brief, pp. 8-9, 4 TTABVUE 9-10.
25 Applicant’s brief, p. 9, 4 TTABVUE 10.
26 Applicant’s brief, p. 9, 4 TTABVUE 10 (emphasis in original).
27 Applicant’s brief, p. 9, 4 TTABVUE 10.
28 Applicant’s brief, pp. 9-10, 4 TTABVUE 10-11.
29 Applicant’s brief, p. 10, 4 TTABVUE 11.
Serial No. 86533628
- 12 -
SMARTFARE on the ground that they are foodservice distributors, rather than
manufacturers or producers,30 but its evidence to this effect, Exhibits F and G to its
brief, are inadmissible.
Moreover, as Applicant admits, foodservice buyers “buy directly from
manufacturers or wholesale distributors.” Response to Office Action of Nov. 4, 2015,
p. 1 (emphasis added). As the above examples demonstrate, some sources (such as
Golbon and Marx Foods) distribute all of these food products under the same brand.
Other sources (such as Metropolitan and Wholey) produce, as well as distribute, these
food products.31 The cited third-party evidence serves to suggest that the identified
goods are of a type that may emanate from a single source. See In re Albert Trostel
& Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). Given the identity of Applicant
and Registrant’s marks, and the related nature of their food products, foodservice
institution purchasers could mistakenly infer that their products emanate from the
same source, or that there is an association or connection between sources. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed.
Cir. 2012); On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471,
1475-76 (Fed. Cir. 2000); In re Total Quality Group, Inc., 51 USPQ2d 1474, 1476
(TTAB 1999). “It is settled, however, that even sophisticated purchasers are not
immune from source confusion, especially in cases such as the instant one involving

30 Applicant’s brief, pp. 10-11, 4 TTABVUE 11-12.
31 Office Action of Nov. 12, 2015, pp. 20-21.
Serial No. 86533628
- 13 -
similar marks and closely related goods.” In re Cook Medical Tech. LLC, 105 USPQ2d
1377, 1383 (TTAB 2012); accord i.am.symbolic, LLC, 116 USPQ2d at 1413.
Hence, the second through fourth DuPont factors weigh in favor of finding a
likelihood of confusion.
C. Strength of Registrant’s Mark.
Applicant asserts that the phrase “RED LABEL” suggests a particular grade or
quality of product in a product line (e.g., “red label,” “blue label”), so relevant
purchasers will not give it a great deal of weight as a source indicator.32 Applicant
provides no evidentiary support or authority for this assertion, nor does it show third
parties registering and/or using the term “red label” to suggest a certain level of
quality. Cf. Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,115 USPQ2d
1671, 1675 (Fed. Cir. 2015) (substantial number of third-party registrations
evidencing suggestiveness). But even if this were the case, and the cited mark were
deemed suggestive, it would not vitiate its presumptive entitlement to protection as
a registered mark. 15 U.S.C. § 1057(b). Even weak marks are entitled to protection
against registration of similar marks, especially identical ones, for related goods and
services, In re Colonial Stores, Inc., 216 USPQ 793, 795 (TTAB 1982), and Applicant
has not demonstrated that Registrant’s mark is weak.
III. Conclusion
On balance, based on the evidence of record, we find that Applicant’s and
Registrant’s marks, as used on their identified goods, so resemble one another as to

32 Applicant’s brief, p. 12, 4 TTABVUE 13.
Serial No. 86533628
- 14 -
be likely to cause confusion, or to cause mistake, or to deceive under Section 2(d) of
the Trademark Act.
Decision: The refusal to register Applicant’s mark RED LABEL is affirmed.