Tyson Foods, Inc.

Trademark Trial and Appeal Board

Jan 29, 2014

No. 85476655 (T.T.A.B. Jan. 29, 2014)

Mailed:
January 29, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Tyson Foods, Inc.
________

Serial No. 85476655
_______

Clifford C. Dougherty III of Mcafee & Taft for Tyson Foods,
Inc.

Cory Boone, Trademark Examining Attorney, Law Office 104
(Chris Doninger, Managing Attorney).
_______

Before Wellington, Ritchie and Masiello,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Tyson Foods, Inc. (“applicant”) has filed an
application to register SIMPLE IS GOOD on the Principal
Register for the following goods:
Beef; chicken; pork; prepared entrees consisting
primarily of beef, chicken, or pork, with pasta, rice,
potatoes, vegetables, or sauce provided as sides or
toppings; soups; dips; prepared entrees in the nature
of casseroles consisting primarily of vegetables,
namely, broccoli, sweet potato, or green bean; mashed
potatoes in International Class 29; and

THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Serial No. 85476655
2
Salsa; processed corn, namely, creamed corn; macaroni
and cheese in International Class 30.1

Registration has been finally refused based on a
likelihood of confusion under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), in view of three previously-
registered marks owned by three different entities. The
three cited registrations are:
SO GOOD. SO SIMPLE.
“Bean dip; Snack food dips” in International Class 29;
and
“Corn chips; Corn-based snack foods” in International
Class 30;2

SIMPLE GOODNESS
“Poultry” in International Class 29;3 and

SIMPLYGOOD
“Processed meat” in International Class 29.4

Applicant concurrently filed a request for
reconsideration and an appeal of the final refusal of its
application. The examining attorney denied the request for
reconsideration. Both applicant and the examining attorney
have filed briefs.

1 Serial No. 85476655, filed November 18, 2011, based on an
allegation of a bona fide intent to use the mark in commerce
under Section 1(b) of the Trademark Act.
2 Registration No. 3799993, issued June 8, 2010, is owned by
Frito-Lay North America, Inc.
3 Registration No. 4067395, issued December 6, 2011, is owned by
Perdue Holdings, Inc.

4 Registration No. 3851399, issued on September 21, 2010, is
owned by Sara Lee Foods, LLC.
Serial No. 85476655
3

Our determination of the examining attorney's refusal
to register the mark under Section 2(d) of the Trademark
Act is based on an analysis of all of the facts in evidence
that are relevant to the factors bearing on the likelihood
of confusion issue. See In re E. I. du Pont 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 arguing against the
examining attorney's refusal to register, applicant places
much emphasis on the sixth du Pont factor involving the
number and nature of similar marks in use on similar goods.
We address this factor as well as the two key
considerations relevant to any likelihood of confusion
analysis, namely, 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).
Alleged Third-Party Use of Similar Marks on Similar Goods
We begin our likelihood of confusion analysis with the
sixth du Pont factor which requires consideration of any
evidence pertaining to the number and nature of similar
marks in use on similar goods or services. In general, the
theory behind this factor is that the relevant class(es) of
Serial No. 85476655
4
consumers have become so conditioned by the presence of a
plethora of similar marks in the marketplace that they have
been educated or accustomed to distinguish such marks based
on differences in the marks that would otherwise be less
meaningful. In this particular appeal, applicant argues
that the “number and nature of similar marks [containing
the terms SIMPL(E,Y) and GOOD(NESS)] in use on food
products support a finding that the public will look to the
marks in their entireties to distinguish the source of the
goods.” Brief, p. 11. In support, applicant submitted
copies of the following third-party registrations:5
MARK REG.
NUMBER(s)
GOODS
WHERE SIMPLE
GOODNESS BEGINS
3151098;
2933356;
2778675;
3643510
Margarine Blend, Butter with
Canola Oil, Egg Nog, Half &
Half, Spreads, Whipped
Topping, Whipping Cream,
Processed Cheese; cocoa mix;
Dairy products, namely,
butter, cheese, margarine;
eggs
BUTTERCAKE
BAKERY GOODNESS
MADE SIMPLE
(with design)
4017556 Bakery goods; Retail shops
featuring baked goods
GOOD FOOD MADE
SIMPLE
3978498;
3866565
frozen breakfast foods, meals
and entrees consisting
primarily of poultry; oatmeal
SIMPLY HOME
GOODS (with design)
3625224 Cakes; Cup cakes; Cookies
POPLAR GROVE 3438999 Blueberry, raspberry,

5 Submitted with applicant’s response dated April 30, 2012.
Multiple registrations listed in the same row (in chart) indicate
ownership by a single entity; the goods or services covered by
these registrations are listed cumulatively in the row as well.
Serial No. 85476655
5
SIMPLE GOODNESS
SINCE 1928 (with
design)
Saskatoon berry and
strawberry spreads, and
organic spreads of the
foregoing berries; Fresh
raspberries; unprocessed
organic onions and potatoes
GOOD SIMPLE
FOOD
2749418 Specialty fruit preserves and
pepper jelly; Specialty mixes
for bakery goods and
condiments, namely, grilling
and glazing sauces and fruit
topping syrups
SIMPLY GOOD (with
design)
3051948 Baked goods, namely cookies

The aforementioned registrations have little to no
probative value for purposes of the sixth du Pont factor
because they are not evidence of actual use and we cannot
even assume that the public has been exposed to those
marks.6 Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d
1004, 177 USPQ 462, 463 (CCPA 1973) (the purchasing public
is not aware of registrations reposing in the U.S. Patent
and Trademark Office); and Productos Lacteos Tocumbo S.A.
de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921,
1934 (TTAB 2011). See also Olde Tyme Foods Inc. v.
Roundy's Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed.
Cir. 1992) (“As to strength of a mark, however,

6 Applicant also attached file copies of five pending
applications for marks containing the terms GOOD(NESS) and
SIMPL(E,Y). For the same reason set forth above, these
applications cannot be relied upon as evidence of consumer
awareness of the applied-for marks.

Serial No. 85476655
6
registration evidence may not be given any weight”).
Rather, the focus is on the number and nature of similar
marks in use on similar goods. See 2 J. Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition, § 11:89 (4th
ed. 2013)(“The mere citation of third party registrations
is not proof of third party uses for the purpose of showing
a crowded field and relative weakness.”). We further note
that applicant, in its brief, does not point to any
evidence showing actual third-party use of similar marks.7
We thus cannot reach the finding that consumers have been
exposed to similar marks, which would be necessary in order
for the sixth du Pont factor to have a meaningful role in
our likelihood of confusion analysis. Accordingly, this
factor remains neutral.
Nevertheless, we are mindful that third-party
registrations may be used to show that a mark or a portion
of a mark is laudatory and/or suggestive of the goods.
Given the plain meanings of the terms SIMPL(E,Y) and
GOOD(NESS), the registrations corroborate how the
combination of these terms may be used in marks to
laudatorily suggest a quality of food products, e.g., that
the ingredients of the food items are basic or few in

7 In addition, nearly all of the goods covered by the third-party
registrations are different from those involved in this appeal.
Serial No. 85476655
7
number (“simple”) and that the foods are wholesome or
otherwise “good” in quality. This suggestive and laudatory
meaning is exemplified on the back of the packaging for one
of the cited registrants’ goods (“Simple Ingredients,
Simply Nutritious, Simply Tastes Great” and “the nutrition
and flavor that naturally comes from real, simple, and
recognizable ingredients.”)8
However, even if we construe applicant’s mark and the
cited registered marks as being suggestive, this is not
fatal to finding likelihood of confusion because even weak
marks are entitled to protection against confusingly
similar marks. King Candy Co. v. Eunice King's Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974).
Rather, we weigh all relevant du Pont factors, including
the degree of similarity, if any, of the marks in their
entireties and relationship of the involved goods.
For the reasons discussed, we find the du Pont factor
relating to the number and nature of similar marks in use
in the marketplace to be neutral.
Relatedness of the Goods at Issue
As set forth above, the subject application covers two
classes of goods. Although not expressly stated by the

8 Printouts of packaging attached to Office action dated December
8, 2012.
Serial No. 85476655
8
examining attorney, it is clear from the Office actions and
his brief that the registered mark SO GOOD. SO SIMPLE.
serves as the sole basis for refusing registration with
respect to applicant’s goods identified in Class 30. On
the other hand, the examining attorney argues that certain
goods identified in all three cited registrations are
related or identical to goods identified in Class 29 of the
application. Accordingly, we necessarily make two separate
likelihood of confusion analyses: one involving
applicant’s proposed mark and the application’s Class 30
goods vis-à-vis the SO GOOD. SO SIMPLE. registered mark;
and a second involving applicant’s mark and the
application’s Class 29 goods vis-à-vis all three registered
marks.
Class 30 Goods
With respect to applicant’s goods identified in Class
30, the examining attorney focuses solely on “salsa” and
argues that applicant’s “salsa products are also closely
related to the [SO GOOD. SO SIMPLE.] registrant’s dips
because they serve similar purposes being snack sauces used
for dipping things like chips or other foods.” Brief, at
p. 9. Applicant does not contest this asserted close
relationship of applicant’s salsa and the registrant’s
snack food dips. Inasmuch as “salsa” may be eaten with
Serial No. 85476655
9
chips and thus used as a snack food dip, we find the goods
of registrant and applicant to be legally identical or, at
the very least, closely related.
Class 29 Goods
The examining attorney points to certain goods
identified in each of the three cited registrations that
are identical to goods identified in Class 29 of the
application. Specifically, the SO GOOD. SO SIMPLE.
registration’s “snack food dips” is encompassed by
applicant’s broader term “dips”; the SIMPLE GOODNESS
registration covers “poultry” which encompasses applicant’s
“chicken”; the SIMPLYGOOD registration identifies
“Processed meat” which is also encompassed by applicant’s
“beef, chicken and pork.”
In sum, we find certain goods identified in the
application to be legally identical, or nearly so, to
certain goods identified in one or more of the cited
registrations. In the context of likelihood of confusion,
it is sufficient if likelihood of confusion is found with
respect to use of the mark on any item within a class of
goods that comes within the description of goods in a cited
registration. Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple
Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB
Serial No. 85476655
10
2007). Accordingly, this du Pont factor weighs strongly in
favor of finding a likelihood of confusion for each class
of goods.
Trade channels, Classes of Consumers,
and Conditions of Sale
With respect to applicant's food items that are
legally identical to those of the cited registrants, we
must presume that these goods move in the same channels of
trade and are available to the same classes of customers
for such goods. In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012); American Lebanese
Syrian Associated Charities Inc. v. Child Health Research
Institute, 101 USPQ2d 1022, 1028 (TTAB 2011); In re Smith
and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994). The
involved goods are basic, inexpensive food items and will
be found in most retail food stores. The ordinary consumer
of these goods is the general public and there is no
evidence showing that the public exercises more than
ordinary care in purchasing these goods. Accordingly, the
du Pont factors relating to the trade channels, classes of
consumers and the conditions under which and the buyers to
whom sales are made favor a finding of likelihood of
confusion.
Similarity of the Involved Marks
Serial No. 85476655
11
This brings us to the question of the similarity or
dissimilarity of the marks. Our focus is on whether the
marks are similar in sound, appearance, meaning, and
commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689 (Fed. Cir. 2005). In determining the
similarity, or lack thereof, we bear in mind that “the test
to be applied in determining likelihood of confusion is not
whether marks are distinguishable on the basis of a side-
by-side comparison, but rather whether they so resemble one
another as to be likely to cause confusion, and this
necessarily requires us to consider the fallibility of
memory over a period of time.” Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106, 108 (TTAB 1975).
In comparing applicant’s mark with the three
registered marks, in their entireties, the obvious general
point of similarity is that each mark contains the terms
SIMPLE and GOOD, including formatives thereof, with very
few other distinguishing elements. The connotations and
commercial impressions created by the marks are also very
similar: when used in connection with food items, all
three marks suggest the simple nature of the food item,
e.g., basic or few ingredients, and that the food is “good”
or desirable in quality. While each mark may create this
Serial No. 85476655
12
suggestion in a slightly different manner, the overall
commercial impressions remain extremely similar.
With regard to each specific registered mark, we find
little to distinguish applicant’s mark. First, in
comparing the registered mark SO GOOD. SO SIMPLE. to
applicant’s mark SIMPLE IS GOOD, the same two terms “good”
and “simple” are employed, albeit in reverse order. The
registered mark has a slightly more emphatic nature, as a
result of the adjective “so” and periods; however, the
overall commercial impressions of these two marks and that
which consumers are likely to remember is very similar,
i.e., that the marks are suggesting the food items are
simple and good.
As to the two other registered marks, SIMPLE
GOODNESS and SIMPLYGOOD, we find these marks also bear
a very strong resemblance visually and aurally to
applicant’s mark, SIMPLE IS GOOD. That is, all three
marks begin with the term “SIMPL-” and end with the term
“GOOD-.” When spoken they, too, will sound similar.
Applicant’s use of the single-syllable verb “is” makes
little noticeable aural difference when the marks are
spoken in their entirety. Applicant is correct that its
mark technically has a different literal meaning in view of
Serial No. 85476655
13
its declarative structure versus the registrations’
adjective-noun or adverb-adjective structures. However,
there is not a great deal of difference in meaning and, as
already pointed out, consumers rarely have an opportunity
to make a side-by-side comparison of the marks and “the
emphasis must be on the recollection of the average
purchaser, who normally retains a general rather than a
specific impression of trademarks.” Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Thus,
consumers are not likely to retain an exact memory of each
mark, but are likely to recollect with respect to each mark
the words “simpl(e,y)” and “good(ness)” and, in doing so,
retain a very similar or the same commercial impression.
In sum, we find that the overall similarity of
applicant’s mark to each of the registered marks outweighs
the dissimilarities. We resolve this du Pont factor
against applicant.
Conclusion
Because of the similarity in the marks and the
identity or near identity of the goods, the same trade
channels and the same classes of purchasers, we find there
is a likelihood of confusion. As described above, there
may be a degree of weakness based on the suggestive nature
of applicant’s mark, as well as the three registered marks;
Serial No. 85476655
14
however, we have weighed this factor in our analysis and
remain convinced that there is a likelihood of confusion.
More specifically, we find that purchasers familiar
with registrant's SO GOOD. SO SIMPLE. mark on “snack food
dips,” upon encountering applicant's mark SIMPLE IS GOOD
on “salsa,” may mistakenly believe that they originate from
or are somehow associated with the same entity.
Similarly, we find that consumers already familiar
with the registered marks SIMPLE GOODNESS for “poultry”
or SIMPLYGOOD for “processed meat,” upon encountering
applicant's mark SIMPLE IS GOOD on goods such as “chicken,
beef, pork,” may mistakenly believe that they originate
from or are somehow associated with the same entity.
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.