Western Family Foods, Inc.

Trademark Trial and Appeal Board

Oct 28, 2008

No. 77079369 (T.T.A.B. Oct. 28, 2008)

Mailed:
10/28/2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Western Family Foods, Inc.
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Serial No. 77079369

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David P. Cooper, of Kolisch Hartwell, P.C., for
Western Family Foods, Inc.

Timothy J. Finnegan, Trademark Examining Attorney, Law
Office 104 (Chris Doninger, Managing Attorney).
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Before Quinn, Wellington, and Ritchie de Larena,
Administrative Trademark Judges.

Opinion by Ritchie de Larena, Administrative Trademark
Judge:
Western Family Foods, Inc. filed an application
to register the mark “SUMMER FLORAL” in standard
character format for “deodorants, feminine deodorants
and other related goods, namely douches,” in
International Class 3.1 The trademark examining
attorney refused registration of the mark under
Section 2(d) of the Trademark Act of 1946, 15 U.S.C.

1 Application Serial No. 77079369, filed January 9, 2007,
pursuant to Section 1(b) of the Trademark Act, 15 USC
§1051(b), and later amended to Section 1(a) asserting dates
of first use and first use in commerce on April 3, 2007.
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 77079369

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§1052(d), on the ground that applicant’s mark so
resembles the mark SUMMER FLOWERS, registered for the
goods listed below that when used in connection with
applicant’s identified goods, it will be likely to
cause confusion:

“Non-medicated skin care preparations, namely,
anti-aging cream, anti-wrinkle cream, astringent
for cosmetic purposes, body cream, body emulsion,
body lotion, body milk, body oil, body scrub,
body spray, exfoliants for skin, eye cream, eye
gel, facial cleanser, facial cream, facial
emulsions, facial masks, facial scrub, hand
cream, hand lotion, hand soap, moisturizing
milks, non-medicated body soak, non-medicated
foot cream, shower gel, skin clarifiers, skin
cleansers, skin cleansing cream, skin cleansing
lotion, skin conditioners, skin cream, skin
emollients, skin lotion, skin masks, skin
moisturizer, skin soap, skin toner, soap for
cosmetic purposes; Bath additives, namely, bath
beads, bath crystals, bath foams, bath gels, bath
milk, bath oils, bath pearls, bubble bath, non-
medicated bath salts; Fragrances, namely,
essential oils for personal use, potpourri,
scented linen sprays, scented room sprays,
perfume, eau de toilette; Non-medicated hair care
preparations, namely, hair conditioners, hair
dressings for men, hair emollients, hair gel,
hair mousse, hair pomades, hair rinses, hair
shampoo, hair spray, hair styling preparations;
Household cleaning preparations, namely, dish
detergents, laundry detergents, glass cleaning
preparations, cleaner for use on countertops,” in
International Class 3.2
Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining
attorney filed briefs. After the case was fully

2 Registration No. 3111857, issued July 4, 2006, claiming
first use and first use in commerce on July 13, 2005.
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briefed and ready for decision, applicant filed a
request for remand pursuant to TBMP §1205 (2d ed. rev.
2004). In particular, applicant stated that it seeks
remand in order to amend its identification of goods
solely to “douches” in International Class 3. The
TBMP provides in relevant part:

“Remand of an ex parte appeal is a matter of
discretion with the Board, and the Board may
refuse to remand for consideration of an
amendment filed more than six months after
the date of the action from which the appeal
was taken, if, for example, the amendment
was filed in bad faith, or would serve no
useful purpose.”
TBMP §1205 (2d ed. revision 1 2004)
We see no “useful purpose” to applicant’s
proposed amendment at this late juncture.
Accordingly, we deny applicant’s request for remand,
and we affirm the final refusal to register.
We base our determination under Section 2(d) on
an analysis of all of the probative evidence of record
bearing on a likelihood of confusion. In re E. I. du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563,
567 (CCPA 1973). See also, In re Majestic Distilling
Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203
(Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the
goods or services. See Federated Foods, Inc. v. Fort
Howard Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)
(“The fundamental inquiry mandated by §2(d) goes to
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the cumulative effect of differences in the essential
characteristics of the goods and differences in the
marks”). We consider each of the factors as to which
applicant or the examining attorney presented
arguments or evidence.

The Marks
Applicant’s mark is “SUMMER FLORAL,” and
registrant’s mark is “SUMMER FLOWERS.” Applicant
argues that the marks have different connotations,
with applicant’s “SUMMER FLORAL” invoking “an image of
a fresh feeling, smell or essence” and registrant’s
“SUMMER FLOWERS” merely “suggest[ing] an image of
flowers that are in bloom during the summer.” (Appl’s
Brief at 4). However, the examining attorney
submitted a dictionary definition of “floral” as
“relating to flowers; relating to, containing, or
suggestive of flowers.” See Encarta World Dictionary
(2007). Accordingly, we find that applicant’s mark
has the same meaning and connotation as the cited
registration.
The marks also look and sound highly similar.
Both begin with the letters S-U-M-M-E-R F-L-O and both
consist of four syllables. In comparing the marks, we
are mindful that the test is not whether the marks can
be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are
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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 USPQ2d 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 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).
Applicant submitted a list of third-party
registrations that contain either “SUMMER” or “FLOWER”
in an attempt to show that registrant’s mark is weak.
Applicant did not include copies of the registrations
and the examining attorney objected to their
introduction into evidence. In order to make a third-
party registration of record, a copy of the
registration, either a copy of the paper USPTO record,
or a copy taken from the electronic records of the
Office, should be submitted. In re Volvo Cars of
North America Inc., 46 USPQ2d 1455, 1456 n. 2 (TTAB
1998); and In re Duofold Inc., 184 USPQ 638, 640 (TTAB
1974). Merely listing such registrations and/or
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reproducing the registered mark, as applicant has done
here, is insufficient to make the registrations of
record. In re Dos Padres Inc., 49 USPQ2d 1860, 1861
n. 2 (TTAB 1998).
In view of the above, the examining attorney’s
objection is sustained. Furthermore, the examining
attorney submitted evidence that applicant’s and
registrant’s marks are the only two live ones listed
on the Principal Register (as an application or a
registration) that contain both the term “SUMMER” and
either “FLORAL” or “FLOWERS.” Finally, even a weak
mark is entitled to protection against registration of
confusingly similar marks. See Giant Food Inc. v.
Roos and Mastacco, Inc., 218 USPQ 521 (TTAB 1982).
In sum, we find that the marks are substantially
similar in sight and sound and they have the same
meaning. As a result of these similarities, the marks
give the same commercial impression. In view of the
foregoing, the first du Pont factor weighs heavily in
favor of finding a likelihood of consumer confusion.

The Goods and Channels of Trade

Preliminarily, we note that the more similar the
marks at issue, the less similar the goods need to be
for the Board to find a likelihood of confusion. In
re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
Moreover, goods or services need not be identical or
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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 or services. In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
The examining attorney has submitted over a dozen
third-party registrations, each of which includes
goods listed in both the application and the cited
registration. These third-party registrations serve
to suggest that these goods are of a type which may
emanate from a single source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
Therefore, we find that the goods listed in the
application and the cited registration are related.
Since the identifications of goods in the cited
registration do not contain any limitations, both
applicant’s and registrant’s goods are likely to
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travel through the same trade channels and be
purchased by the same classes of purchasers. See
Squirtco v. Tomy Corporation, 697 F.2d 1038, 216 USPQ
937 (Fed. Cir. 1983). The goods are primarily
toiletries that are purchased by the general public.
Moreover, since the marks are substantially similar
and the goods are related, even a careful,
sophisticated consumer of toiletries is not likely to
note minor trademark differences. Cunningham v. Laser
Golf Corp., 222 F.3d 943, 948-949 (Fed. Cir. 2000).
Accordingly, the second, third and fourth du Pont
factors weigh in favor of finding a likelihood of
consumer confusion.
Balancing the Factors
Considering all of the evidence of record as it
pertains to the du Pont factors, we conclude that the
marks are substantially similar; the goods are
related; and they are likely to be sold through the
same channels of trade to the same classes of
purchasers. Accordingly, we find a likelihood of
confusion between applicant’s mark and the cited
registration.
Decision: The refusal to register is affirmed.