Unique Beverage Company, LLC

Trademark Trial and Appeal Board

Feb 13, 2008

No. 76592774 (T.T.A.B. Feb. 13, 2008)

Mailed:
February 13, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Unique Beverage Company, LLC
________

Serial No. 76592774
_______

Joseph I. Hochman of Hochman Legal Group, PLLC for Unique
Beverage Company, LLC.

Bonnie Luken, Trademark Examining Attorney, Law Office 107
(J. Leslie Bishop, Managing Attorney).
_______

Before Seeherman, Quinn and Bergsman, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Unique Beverage Company, LLC has appealed from the
final refusal of the Trademark Examining Attorney to
register GREEN DRAGON ENERGY DRINK, in standard character
format, and with ENERGY DRINK disclaimed, for “non-
alcoholic drinks and beverages, namely, carbonated soft
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 76592774
2
drinks, energy drinks, caffeinated drinking water.”1
Registration has been refused pursuant to Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), in view of the
following two registrations, owned by separate entities.
It is the Examining Attorney’s position that applicant’s
mark so resembles the marks shown below, for the indicated
goods, that if used on applicant’s identified goods it is
likely to cause confusion or mistake or to deceive.

1 Application Serial No.76592774, filed May 5, 2004, based on
Section 1(b) of the Trademark Act, 15 U.S.C. §1051(b)
(intent-to-use). After the appeal was filed applicant filed two
amendments to allege use. Applicant has explained that the first
such amendment, filed on November 2, 2006, was meant to assert
first use and first use of the mark in commence on May 11, 2004
for “energy drinks,” but due to a typographical error, the
document actually stated that applicant was not using its mark on
such goods. On January 25, 2007, applicant filed a second
amendment to allege use stating that it was using its mark on all
of its identified goods EXCEPT caffeinated drinking water. The
Board noted these filings but, because it has discretion as to
whether it will remand an application to the Examining Attorney
to consider an amendment to allege use that is filed more than
six months after the mailing of a final Office action, and
because it was clear from applicant’s communications that it did
not want the appeal to be suspended in order for the amendment to
allege use to be considered, the Board proceeded with the appeal.
See Board order mailed February 7, 2007. Accordingly, at this
point the amendment(s) to allege use has not been examined.
Ser No. 76592774
3

for coffee. The words AUTHENTIC
COFFEES are disclaimed.2

with the words ENERGY DRINK disclaimed,
for non-alcoholic beverages, namely,
energy drinks; drink mixes, namely,
syrups, essences and other preparations
for making energy drinks.3

The appeal has been fully briefed. In a footnote in
its reply brief applicant contends that the Examining

2 Registration No. 2300137, issued December 4, 1999; Section 8
affidavit accepted; Section 15 affidavit received.
3 Registration No. 2846460, issued May 25, 2004.
Ser No. 76592774
4
Attorney’s brief should be stricken because it does not
contain an alphabetical index of cited cases, as required
by Trademark Rule 2.142(b)(2). Applicant is correct that
the brief does not comply with the technical requirements
of the rule, but because the table of cases is for the
benefit of the Board, and because the brief itself is of
greater benefit to the Board, we have considered the brief.
The Examining Attorney has objected to certain
portions of Exhibit F, submitted by applicant with its
brief. Exhibit F consists of a chart listing various
DRAGON marks with their registration number, class and
goods, as well as copies of some of the actual
registrations (so-called “soft copies”) listed in the
chart. An earlier version of this chart had been submitted
during the course of examination, and there is no dispute
that the earlier version is of record. However, the
Examining Attorney has objected to the additional evidence,
consisting of the listing of additional registrations, as
well as the soft copies, stating that it is untimely.
We agree that those registrations and/or applications
that were added to the original chart are untimely, and
they have not been considered. See Trademark Rule 2.142(d)
(the record in the application should be complete prior to
the filing of an appeal). As for the soft copies of the
Ser No. 76592774
5
registrations listed in the original chart that were
submitted with applicant’s brief, in the circumstances
present here we do not consider them to be new evidence.
Accordingly, we have considered these registrations.
However, soft copies of registrations appearing for the
first time on the chart submitted with the appeal brief
have not been considered.
The Examining Attorney has also pointed out that to
make registrations properly of record, a mere listing is
not sufficient, and copies of the registrations must be
submitted. Countering this, applicant states that in the
two Office actions which issued after applicant submitted
the chart the Examining Attorney never objected to the
chart or otherwise advised applicant that the registrations
were not properly of record and that, on the contrary, the
Examining Attorney discussed the registrations listed in
the chart as well as in other exhibits.
It does not appear to us that the Examining Attorney
actually discussed any of the third-party marks. However,
we agree with applicant that by not advising applicant of
the deficiencies in submitting merely a chart that listed
registrations by their mark and a summary of the goods or
services, the Examining Attorney has waived any objection
she might have to the list of registrations. Similarly, we
Ser No. 76592774
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note that during prosecution applicant submitted listings
taken from the TESS portion of the USTPO database
reflecting searches for marks with the words “power”
“energy” or “dragon.” These searches show what appear to
be the 50 most recently filed applications (and if issued,
the registration numbers) for marks containing the
particular word, as well as whether the application/
registration is “live” or “dead.” Because the Examining
Attorney did not timely advise applicant about the
insufficiency of these listings, we have considered them as
well, but they have very limited probative value because
they do not show the goods or services identified in the
particular application or registration. Moreover, we note
that most of the listings are for applications, and a
third-party application is evidence only of the fact that
the application was filed.
In summary, we have considered that portion of Exhibit
F that reflects registrations or applications that were
previously listed on the chart applicant submitted during
the prosecution of its application, but not registrations
that applicant added at the time it filed its appeal brief.
We have also considered the soft copies of the
registrations that were listed on the original chart and
that were submitted as part of Exhibit F. In addition, we
Ser No. 76592774
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have considered the list of marks taken from the TESS
database for whatever limited probative value they may
have.
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. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003).
We turn initially to the refusal on the ground that
applicant’s mark is likely to cause confusion with
Registration No. 2300137 for GREEN DRAGON AUTHENTIC COFFEES
and design for coffee. We first examine the strength of
the cited registration, since the protection to be accorded
this registration has a major effect on our determination
of likelihood of confusion.
Applicant has asserted that there is widespread third-
party use of DRAGON marks, and therefore that the
registered mark is weak. In support of this claim,
applicant has submitted both a chart listing marks which
contain the word “dragon,” and copies of some of the
registrations in the chart.
Ser No. 76592774
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First, we point out that third-party registrations are
not evidence that the marks shown therein are in use, or
that the public is familiar with them. See Olde Tyme Foods
Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545
(Fed. Cir. 1992); and AMF Inc. v. American Leisure
Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA
1973) (“The existence of [third party] registrations is not
evidence of what happens in the market place or that
customers are familiar with them...”).
However, third-party registrations may be considered
in the same manner as a dictionary to show a term’s
significance in a particular trade. Tektronix, Inc. v.
Daktronics, Inc., 187 USPQ 588 (TTAB 1975). In this
respect, we have considered the third-party registrations
for food, beverages and restaurant services to see if the
term has some significance in the food industry in general.4
Relevant registrations include the following:
BLUE DRAGON and design for a wide
variety of food products, including
coffee (Reg. No. 2871898)

SOBE DRAGON and design for fruit
drinks, fruit juice drinks, soft

4 In this respect, many of the third-party registrations are for
goods that are so different from the goods at issue herein, e.g.,
insecticide (Reg. No. 1081510) and propane blow torches for
roofing (Reg. No. 2796072), that they are not indicative that the
term has a significance in the food and beverage industry.

Ser No. 76592774
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drinks, and syrups and concentrates for
making the same (Reg. No. 2926367)

RUBY DRAGON for chicken (Reg. No.
2954284)

WHITE DRAGON for fresh peaches and
nectarines (Reg. No. 2573022)

GREEN DRAGON for fresh apples (Reg. No.
1986082). This registration was
cancelled for failure to file a Section
8 affidavit.

VALONGKA, which is translated as “power
dragon plus” for food supplement.

In particular, there are two registrations for coffee
that are owned by separate entities: BLUE DRAGON and design
and the cited mark GREEN DRAGON AUTHENTIC COFFEES and
design. The fact that such similar marks coexist persuade
us that DRAGON is a weak term when used in connection with
coffee, and therefore that the scope of protection to be
accorded the cited registration is limited. In other
words, if GREEN DRAGON AUTHENTIC COFFEES and design can
coexist with such a similar mark as BLUE DRAGON and design
for identical goods, the protection to which the mark is
entitled does not necessarily extend to all other beverage
items.
Here, because there are differences in the goods,
i.e., coffee vs. carbonated soft drinks, energy drinks and
caffeinated water, we find in the particular circumstances
Ser No. 76592774
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of this case that these differences are sufficient, in view
of the limited scope of protection to which the cited
registration is entitled, to avoid confusion. In saying
this, we do not mean to suggest that these goods can never
be considered related. The Examining Attorney has
submitted six third-party registrations that list both
coffee and carbonated soft drinks, thereby suggesting that
the listed goods and/or services are of a type which may
emanate from a single source. See In re Albert Trostel &
Sons Co., 29 USPQ2d 1783 (TTAB 1993). We also note that
coffee, on the one hand, and energy drinks and caffeinated
water on the other, are all caffeinated products that are
often purchased and drunk specifically because they contain
caffeine.
Nor are we saying that the marks are not similar. On
the contrary, there are strong similarities in the marks.
The dominant part of both marks, and the part which is
entitled to greater weight in a comparison of the marks, is
the term GREEN DRAGON. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (in articulating
reasons for reaching a conclusion on the issue of
likelihood of confusion, there is nothing improper in
stating that, for rational reasons, more or less weight has
been given to a particular feature of a mark, provided the
Ser No. 76592774
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ultimate conclusion rests on a consideration of the marks
in their entireties). The generic words ENERGY DRINK in
applicant’s mark and the words AUTHENTIC COFFEES in the
cited mark, a combination of a descriptive word and a
generic term, do not have source-identifying significance.
As for the dragon design in the cited mark, it merely
reinforces the meaning of the words GREEN DRAGON; moreover,
GREEN DRAGON, because it can be articulated, is the term
consumers will use to refer to and call for the goods, and
is therefore the part of the mark most likely to be noted
and remembered. In re Appetito Provisions Co., 3 USPQ2d
1553, 1554 (TTAB 1987)
Therefore, although the marks are similar, and there
is evidence that the goods are related, we must weigh these
factors with the evidence that the cited mark is weak, and
the registration is therefore entitled to a limited scope
of projection. In such circumstances, there must be a
greater degree of similarity in the goods to support a
finding of likelihood of confusion than has been shown
here. In short, on this record we cannot conclude that the
goods are sufficiently similar to support a finding of
likelihood of confusion.
Ser No. 76592774
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Accordingly, we reverse the refusal of registration
with respect to Registration No. 2300137 for GREEN DRAGON
AUTHENTIC COFFEES and design.
It is a different story, though, when we consider the
refusal based on Registration No. 2846460 for DRAGON POWER
ENERGY DRINK and design. There are of record no third-
party registrations for energy drinks.5 Thus, at least with
respect to energy drinks, the term DRAGON is not a
frequently adopted term, and the registered mark DRAGON
POWER ENERGY DRINK must be accorded a broader degree of
protection with respect to other’s uses of DRAGON marks for
the identical goods.
And, here, applicant’s and the registrant’s goods are
identical: both applicant’s identification and the
identification in the cited registration include “energy
drinks.” As a result, the goods must be considered
legally identical, and they must be deemed to be sold in
the same channels of trade to the same classes of
consumers. These du Pont factors strongly favor a finding
of likelihood of confusion.

5 As discussed supra, the listing of an application for BLACK
DRAKO ENERGY DRINK that appears for the first time in Exhibit F
to applicant’s appeal brief is not of record.

Ser No. 76592774
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Turning to a consideration of the marks, applicant’s
mark is GREEN DRAGON ENERGY DRINK; the cited registration
is DRAGON POWER ENERGY DRINK and the design of a dragon.
Applicant has pointed out that the words ENERGY DRINK in
the mark are “weak.” We would characterize them as being
more than “weak”; ENERGY DRINK in both marks is the generic
term for the goods, and therefore they have no source-
indicating significance. We do not base a finding of
similarity of the marks on the fact that this term is
included in both marks.
Rather, we find that the marks are confusingly similar
for other reasons. As noted above, it is permissible to
give more or less weight to a particular feature of a mark,
as long as the ultimate conclusion rests on a consideration
of the marks in their entireties. Both marks contain the
word DRAGON, and we accord this term greater weight in our
analysis because, as we have pointed out, on the record
before us DRAGON is not commonly registered for energy
drinks; the only registration containing this term for such
goods is the registrant’s. Further, although the
registered mark includes the design of a dragon and the
word POWER, these differences are not sufficient to
distinguish the marks. The word POWER, as used in
connection with an energy drink, is highly suggestive,
Ser No. 76592774
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indicating that the drink enhances the consumer’s prowess
or abilities. The dragon design is not a distinguishing
element; on the contrary, it merely reinforces the
significance of the word DRAGON.
We recognize that applicant’s mark includes the word
GREEN, and registrant’s mark does not. However, if the
registrant were to depict its dragon design in the color
green, the similarity with the word mark GREEN DRAGON would
obviously be very strong. Applicant has pointed out that
the registrant currently uses the colors yellow and white
for the design, but the registration does not contain a
color claim, and therefore the registrant is free to use
any color for its dragon design that it wishes, including
the color green.6
However, even if we assume that registrant’s dragon
design is not and will not be shown in green, the marks are
still extremely similar because of the presence of the word
DRAGON in each one, a presence that is emphasized by the
dragon design in the cited mark. Although there are

6 Applicant points out differences between the dragon design
that it uses, and the dragon design in the registered mark, e.g.,
applicant uses the design of a bust of a green dragon with red
eyes, and it has no ears, wings, body or tail, while the
registrant’s dragon is white-eyed, feather-tailed, full-bodied
and has ears. Obviously applicant has applied only for a word
mark, and therefore any dragon design that it may use now or in
the future is not before us.

Ser No. 76592774
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clearly differences in the marks when they are compared
side-by-side, that is not the test for determining whether
marks are confusingly similar. Rather, the question is
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. San Fernando Electric Mfg. Co. v. JFD
Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3
(CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23
USPQ 1735, 1741 (TTAB 1991), aff’d unpublished, No. 92-1086
(Fed. Cir. June 5, 1992). The proper focus is on the
recollection of the average customer, who retains a general
rather than a specific impression of the marks. Winnebago
Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335,
344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106, 108 (TTAB 1975).
It is well established that when marks would appear on
virtually identical goods or services, as they do here, 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). Considering the marks in this light, and
also taking into consideration the fallibility of memory,
we find that when the marks are compared in their
Ser No. 76592774
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entireties the similarities between the marks in
appearance, pronunciation and connotation outweigh the
dissimilarities and that, overall, the marks convey similar
commercial impressions.
Moreover, the conditions of purchase favor a finding
of likelihood of confusion. Applicant’s and the
registrant’s identified goods are general consumer items,
and are relatively inexpensive. Therefore, they will be
bought by ordinary purchasers who will not be particularly
sophisticated about the goods, nor will they exercise a
great deal of care in making their purchasing decisions.
If applicant’s and the registrant’s cans of energy drinks
appear in close proximity on a shelf, a consumer who is
quickly grabbing a “dragon” energy drink is not likely to
notice the particular differences in the marks. Even if he
does note the differences, he is not likely to realize that
the differences indicate separate sources for the goods;
rather, he is likely to assume that the marks are
variations of each other, but still indicate origin in a
single source.
Applicant has pointed out that there is no evidence
that the cited mark is famous, a statement that the
Examining Attorney does not dispute. Thus, the du Pont
factor as to the fame of the mark is neutral. However, we
Ser No. 76592774
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disagree with applicant’s contention that the registered
mark is not distinctive. As we have already said, there is
no evidence of third-party use or registration of DRAGON
marks for energy drinks, and thus, as far as we can
ascertain from this record, the cited mark is distinctive.
Applicant also asserts that there is no evidence of
any actual confusion, “even though the marks may have been
used by the parties on the same type of products.” Brief,
p. 14. However, applicant states that it “currently sells
its Green Dragon Energy Drink and uses the GREEN DRAGON
mark in only grocery stores and chain stores in a small
portion of the Western United States,” and that applicant
“is aware of no evidence to suggest that any single company
sells the good or service of both [applicant and
registrant.]” Brief, p. 13. Based on applicant’s own
statements, it is not clear whether there has been an
opportunity for confusion to occur. This du Pont factor is
neutral.
Finally, applicant points to the fact that the cited
registration coexists with Registration No. 3043952 for
what applicant refers to as “POWER DRAGON PLUS.” In point
of fact, the mark in question is VALONGKA, and the
registration states that VALONGKA means “power dragon plus”
in English. Because the goods identified in that
Ser No. 76592774
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registration are a “food supplement,” we need not get
involved in a discussion of whether the doctrine of foreign
equivalents would apply to this mark. We have already said
that our findings about the strength of the cited mark
reflect that there are no other DRAGON marks registered for
energy drinks. The fact that there are third-party
registrations for DRAGON marks for other foods or
beverages, including food supplements, does not affect this
finding. Nor does the fact that SOBE DRAGON and design is
registered for fruit drinks, fruit juice drinks and soft
drinks, given that this registration is not for energy
drinks, and there is a far greater difference in the
commercial impression of that mark vis-à-vis the cited mark
DRAGON PLUS ENERGY DRINK and design, compared to the
difference between applicant’s mark and the cited mark.
After considering the relevant du Pont factors, as
discussed above, we find that applicant’s mark GREEN DRAGON
ENERGY DRINK for energy drinks is likely to cause confusion
with Registration No. 2846460 for DRAGON POWER ENERGY DRINK
and design for energy drinks. Because likelihood of
confusion must be found if there is likely to be confusion
with respect to any item that comes within the
identification of goods in the application, see Tuxedo
Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335,
Ser No. 76592774
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209 USPQ 986, 988 (CCPA 1981), we affirm the refusal of
registration.
Decision: We affirm the refusal of registration on
the basis of Registration No. 2846460; we reverse the
refusal of registration on the basis of Registration No.
2300137.