Wonderful Citrus LLC f/k/a Paramount Citrus LLCv.Quality Fresh Farms, Inc.

Trademark Trial and Appeal Board

Sep 25, 2017

No. 91222878 (T.T.A.B. Sep. 25, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: September 25, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Wonderful Citrus LLC f/k/a Paramount Citrus LLC
v.
Quality Fresh Farms, Inc.
_____

Opposition No. 91222878
____

Michael M Vasseghi of Roll Law Group PC
for Wonderful Citrus LLC f/k/a Paramount Citrus LLC.

Sherrie M. Flynn Coleman & Horowitt LLP
for Quality Fresh Farms, Inc.
_____

Before Kuczma, Gorowitz and Goodman,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:

Quality Fresh Farms, Inc., (“Applicant”) filed an application to register the mark
shown below for “fresh fruit and vegetables” in International Class 31 and
“warehousing services, namely, storage, distribution, pick-up, packing, and shipping
of fresh fruit and vegetables” in International Class 39. 1

1 Application Serial No. 86375060 was filed on August 22, 2014, based upon Applicant’s claim
of first use anywhere since at least September 2012 and first use in commerce since at least
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Wonderful Citrus LLC f/k/a Paramount Citrus LLC (“Opposer”) opposes
registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C.
§1052(d), asserting likelihood of confusion with its previously used and registered
mark, shown below, for “fresh citrus fruit and storage, distribution, pick-up, packing,
and shipping of fresh citrus fruit.”

September 17, 2012. The description of the mark states: “The mark consists of a stylized
letter ‘Q’ that encompasses a sun, sky, and farm field.” Color is not claimed as a feature of
the mark.
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Opposer pleads ownership of a registration for the above mark for “fresh citrus
fruits” in International Class 31.2
Applicant has denied the salient allegations in the notice of opposition.
I. Stipulation
The parties stipulated that documents produced by a party in response to requests
for production of documents or interrogatories shall be deemed authentic business
records, waiving objections to the admissibility of such documents on the grounds of
authenticity or genuineness. 11 TTABVUE. The parties also stipulated that the
testimony of witnesses may be introduced by sworn declaration, with exhibits
attached thereto, in lieu of testimonial depositions. Id.
II. Record
The record includes the pleadings, and by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the application file of the opposed application. In addition, the
parties introduced the following testimony and evidence: testimonial affidavit of Scott
Owens, Vice President of Global Sales and Trade Marketing for Opposer, and
Opposer’s notice of reliance on Opposer’s pleaded registration; testimonial affidavit
of Gurdeep S. Billan, President and Chief Executive Officer of Applicant, and
Applicant’s notice of reliance on Opposer’s responses to requests for admission.3

2 Registration No. 3934863, issued March 22, 2011, Section 8 accepted; Section 15
acknowledged. “Citrus” is disclaimed. The description of the mark states: “The mark consists
of an orange growing between two leaves with the stylized wording ‘PARAMOUNT CITRUS’
beneath the design element.” Color is not claimed as a feature of the mark.
3 The exhibit to the Owens affidavit consists of Opposer’s verified responses to Applicant’s
interrogatory requests. The exhibit to the Billan affidavit consists of Opposer’s responses to
Applicant’s requests for admissions. Interrogatory responses and responses to requests for
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III. Opposed Classes
Opposer opposed registration of Applicant’s mark in both classes covered by
Applicant’s application, International Classes 31 and 39. However, in its brief,
Opposer presented argument only as to the Class 31 goods and presented no
argument or evidence pertaining to the Class 39 services. We therefore deem Opposer
to have waived its claims as to Class 39, and we dismiss the opposition as to that
class. See Knight Textile Corp. v. Jones Investment Co., 75 USPQ2d 1313, 1314 n.4
(TTAB 2005) (where opposer presented no arguments in its brief regarding the claim
of dilution, opposer is deemed to have waived the claim). See also Miss Universe L.P.
v. Community Marketing Inc., 82 USPQ2d 1562, 1568 n.6 (TTAB 2007) (because
opposer presented no arguments in its brief pertaining specifically to certain of its
pleaded registrations in connection with likelihood of confusion claim, Board did not
consider those pleaded registrations in deciding the matter).

admissions may be made of record only by the inquiring party, by way of notice of reliance,
under the provisions of Trademark Rule 2.120(k)(5), 37 CFR § 2.120(k)(5), or upon the
stipulation of the parties. An interrogatory answer or response to a request for admission not
properly offered in evidence under Trademark Rule 2.120(k)(5) may nevertheless be
considered by the Board if the nonoffering party does not object thereto, and/or treats the
answer, or admission, as being of record, and/or improperly offers an interrogatory answer,
or an admission, in the same manner. See e.g., Safeway Stores, Inc. v. Captn’s Pick, Inc., 203
USPQ 1025, 1027 n.1 (TTAB 1979) (no objection by either party to the other’s improper
reliance on its own answers; opposer did not object to interrogatories introduced by applicant
and in fact referred to answers to other of opposer’s interrogatories without benefit of notice
of reliance). Applicant, in its brief, has not objected to Opposer’s submission of Opposer’s
interrogatory responses and has relied on these responses in arguing its position; Opposer,
in its brief has not objected to Applicant’s submission of Opposer’s responses to requests for
admissions by affidavit. Therefore, we deem each party to have stipulated to the other’s
submission. As to Opposer’s responses to requests for admissions, we have considered only
Opposer’s admissions, not denials. See Trademark Rule 2.120(k)(3)(i), 37 CFR § 2.120(k)(3)(i).

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IV. Standing and Priority
Opposer has demonstrated that it is the owner of its pleaded registration and that
the registration is valid and subsisting by submitting with its notice of reliance a
printout obtained from the USPTO TSDR database records showing the current
status and title of its pleaded registration. In view thereof, Opposer has established
its standing. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1844 (Fed. Cir. 2000); Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024,
213 USPQ 185, 189 (CCPA 1982).
Because Opposer has made its registration of record and shown that it is valid and
subsisting, priority is not an issue in this case as to the mark for the goods
recited in the registration. King Candy, Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108, 110 (CCPA 1974).
V. Likelihood of confusion
Our likelihood of confusion determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are relevant to the likelihood of
confusion factors set forth in In re E. I. du Pont de Nemours and Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973). See also Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005). In considering the evidence of record on these factors, we keep in mind that
“[t]he fundamental inquiry mandated by §2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and differences in the marks.”
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Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976). These factors, and the other relevant du Pont factors now before us,
are discussed below.
A. Similarity or dissimilarity of the goods and channels of trade, and
conditions of purchase
We will first consider the similarity or dissimilarity of the goods as identified in
the application and the pleaded registration. Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-1162 (Fed. Cir. 2014); Octocom
Syst. Inc. v. Houston Computers Svcs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990). In considering the relatedness of the respective goods, it is not necessary
that they be identical or even competitive in order to find that they are related for
purposes of our likelihood of confusion analysis. Rather, it is sufficient that the goods
are related in some manner, or that the circumstances surrounding their marketing
are such, that they would be likely to be encountered by the same persons in
situations that would give rise, because of the marks used thereon, to a mistaken
belief that they originate from or are in some way associated with the same source or
that there is an association or connection between the sources of the respective goods.
See Recot Inc. v. M.C. Becton, 214 F3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000);
Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1431 (TTAB 2013)
(citing In re Martin's Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991)).
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Opposer argues that the goods are closely related, if not identical, as both parties
offer fresh fruit. “Applicant does not contest the relatedness of Applicant goods to
Opposer’s goods” but submits the goods are not identical. 20 TTABVUE 24.
However, Applicant’s “fresh fruit” is identified with sufficient breadth to
encompass Opposer’s more specifically identified “fresh citrus fruit” and therefore,
we must presume that Applicant’s fresh fruit encompasses all goods of the nature and
type identified, including fresh citrus fruits. See Paula Payne Prods. Co. v. Johnson
Publ’g Co., Inc., 473 F.2d 901, 177 USPQ 76, 77-78 (CCPA 1973); In re Jump Designs,
LLC, 80 USPQ2d 1370, 1374 (TTAB 2006) (where goods in an application or cited
registration are broadly identified as to their nature and type, it is presumed that in
scope the identification of goods encompasses all of the goods of the nature and type
described) (citing In re Elbaum, 211 USPQ 639, 640 (TTAB 1981); and In re Linkvest
S.A., 24 USPQ2d 1716, 1716 (TTAB 1992)). Therefore, the goods are legally identical
in part. See e.g., In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1518 (TTAB
2016); In re Jump Designs LLC, 80 USPQ2d at 1374.
With regard to the channels of trade and class of purchasers, we must compare
the goods identified in Applicant’s involved application to those identified in
Opposer’s pleaded registration. See Stone Lion 110 USPQ2d at 1162 (citing Octocom
Sys., 16 USPQ2d at 1787). We find the goods of Applicant and Opposer move in the
same channels of trade. There are no limitations as to trade channels or purchasers
in Applicant’s identification of goods or in Opposer’s pleaded registration.
Accordingly, we presume that the parties’ legally identical goods in part are marketed
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in all normal trade channels and to all normal classes of purchasers for such goods,
which consist of the general public. In re Elbaum, 211 USPQ at 640, citing Kalart
Co., Inc. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958).
Additionally, Opposer’s witness testified that Opposer primarily markets and
advertises it goods bearing the mark to retail customers in the grocery and club store
channels and in trade publications which include The Packer, Produce News, and
Produce Business, sells its products “in both the retail and food service channels,”
and the goods “are available in the produce sections of grocery and club stores,
including but not limited to Smart & Final, Costco, Walmart, Kroger’s, and Sam’s
Club.” 15 TTAVUE 4, 7. Applicant’s witness testified that it primarily advertises its
goods in Produce News, but also has advertised in The Packer and Produce Business
and that its mark is featured prominently on the goods and shipping containers. 17
TTABVUE 3-4. Applicant “primarily sells to grocery store and club store buyers,
which then resell” its products to retail consumers at grocery and club stores
including “Smart & Final, Costco, Walmart, Kroger’s, Sam’s Club, Safeway,
Albertsons, Food4Less, Save Mart and Sprouts, among others.” Id. at 3. Thus, it is
clear from the parties’ testimony that both Applicant’s and Opposer’s goods are sold
through the same trade channels to the same consumers. Further, Applicant
acknowledges in its brief that the trade channels for the goods are the same. 20
TTABVUE 8 (“Applicant does not dispute that the parties’ goods travel in the same
trade channels”); Id. at 23-24. Accordingly we find the similarity of the goods and the
channels of trade weigh in Opposer’s favor.
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Next we consider the fourth du Pont factor, the conditions under which the goods
are likely to be purchased, e.g., whether on impulse or after careful consideration, as
well as the degree, if any, of sophistication of the consumers. du Pont 177 USPQ at
567.
Opposer testified that its citrus fruit is “relatively inexpensive” and an impulse
purchase by ordinary consumers, “priced from around $8.00 to $50.00 dollars based
on the size of the bag or box and the fruit being sold.” 15 TTABVUE 4. Opposer also
points out that Applicant’s watermelons are sold for $6.99. 17 TTABVUE 24. Opposer
does indicate that its goods are not sold directly to retail consumers but to retailers.
15 TTABVUE 8. Applicant testified that it primarily sells large quantities of its goods
in bins or cartons to grocery store and club store buyers who carefully consider the
price and quality. 17 TTABVUE 4. Applicant also testified that its goods are “staple
products” that are compared for price and quality by retail purchasers. Id.
As established by the record, both parties’ products are sold to commercial
customers who resell the goods to ordinary consumers. On the one hand, it is
reasonable to assume that the parties’ commercial customers will be relatively
sophisticated in making their purchases of these goods. Centraz Industries Inc. v.
Spartan Chemical Co., 77 USPQ2d 1698, 1699-1700 (TTAB 2006) (commercial and
institutional buyers of cleaning products, including floor finishing preparations
relatively sophisticated). On the other hand, the goods are also sold to ordinary
customers who employ nothing more than ordinary care in their purchasing
decisions. Accordingly, we find this du Pont factor neutral. Centraz Industries, 77
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USPQ2d at 1700 (finding conditions of sale neutral, where some customers would be
sophisticated in their purchasing decisions, while others may not be).
B. Actual Confusion
We next consider actual confusion. Applicant argues that
the uncontroverted evidence in the record shows that there
has been concurrent use of the parties’ marks in the same
trade magazines and in the marketplace, and the parties’
goods have been sold to the same retailers and to the same
consumers for at least several years, and there are no
known instances of consumer confusion … [and this]
weighs in favor of finding no likelihood of confusion.
20 TTABVUE 24.
We have considered the fact that, while the respective goods have been sold in the
same stores contemporaneously, with sales in the millions of dollars by both
Applicant and Opposer, and concurrent advertising in trade magazines, (15
TTABVUE 3-4, 6-7; 17 TTABVUE 3), there have been no reported instances of actual
confusion. While we have considered that there is no evidence of actual confusion, we
are also aware that “the lack of any occurrences of actual confusion is not dispositive
inasmuch as evidence thereof is notoriously difficult to come by.” Gillette Canada Inc.
v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). The Federal Circuit has noted
that: “Before this court, the test is likelihood of confusion not actual confusion. It is
unnecessary to show actual confusion in establishing likelihood of confusion.” Weiss
Associates Inc. v. HRL Associates Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1842-43 (Fed.
Cir. 1990) (citations omitted). Therefore, while we find that this factor favors
Applicant, we do not find that it strongly supports Applicant’s position.
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C. Similarity or dissimilarity of the marks
We now consider and compare the appearance, sound, connotation and
commercial impression of the marks in their entireties. Palm Bay Imports, 73
USPQ2d at 1692. “The proper test is not a side-by-side comparison of the marks, but
instead ‘whether the marks are sufficiently similar in terms of their commercial
impression’ such that persons who encounter the marks would be likely to assume a
connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation omitted). The focus is
on the recollection of the average purchaser, who normally retains a general rather
than specific impression of trademarks. See Johann Maria Farina Gegenuber Dem
Julichs-Platz v. Chesebrough-Pond, Inc., 470 F.2d 1385, 176 USPQ 199, 200 (CCPA
1972); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). In 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 ultimate conclusion rests on a consideration of the marks in
their entireties. In re Nat’l Data Corp., 753 F2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985). See also Stone Lion, 110 USPQ2d at 1161. We are mindful that “[w]hen marks
would appear on virtually identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion declines.” In re Mighty Leaf Tea,
601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (quoting Century 21 Real
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Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992)).
Applicant’s mark is a design mark , while Opposer’s mark is a composite
mark , containing a word and design. In this case, that assessment
necessarily takes into account that we are comparing design elements, as well as the
terms PARAMOUNT CITRUS in Opposer’s mark.
Applicant’s design mark and the design portion of Opposer’s mark by their very
nature are perceived graphically, rather than being spoken or read. See In re
Electrolyte Laboratories Inc., 929 F.2d 645, 16 USPQ2d 1239, 1240 (Fed. Cir. 1990)
(“A design is viewed, not spoken …”). Under these circumstances, the analysis of the
designs is determined on the basis of their visual similarity. Further, “consideration
must be given to the fact that a person’s recollection of design marks is often
imprecise and of a vague or hazy nature.” Freedom Federal Savings and Loan
Association v. Heritage Federal Savings and Loan Association, 210 USPQ 227, 231
(TTAB 1981). In our analysis, we do not place the marks side-by-side but consider the
marketplace, the consumer’s hazy recollection, and the overall impressions made by
each party’s mark.
As to the designs, both are similar in shape and appear to be a segment of a circle
with two leaves placed next to the partial circle. The placement of the leaf portion of
Applicant’s mark results in a more complete circle shape, while in Opposer’s design,
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the leaf elements appear more separate but still contribute to the circular shape. The
additional design elements in Applicant’s mark, namely a rising sun, and lines which
suggest hills, terrain, or rows of a planting field, feature prominently as the rays of
the sun and the terrain form part of the circle shape and add to the commercial
impression of Applicant’s design mark as a whole. Opinions are likely to differ widely
as to what Applicant’s mark represents as the design could easily suggest a number
of things to prospective purchasers. To some, the idea of a round fruit or vegetable
may be suggested, to others, the sun and plants growing on the land, to others, a
somewhat abstract letter “Q”. Opposer’s design, on the other hand, suggests a fruit,
which Opposer has identified in its registration as an orange. Opposer argues the
marks have identical proportions and “[b]oth marks create the impression of a
circular design (which may be viewed by the consumer as a round-shaped fruit, the
sun, or simply a spherical shape) sitting atop two leaves.” 19 TTABVUE 18. Although
Opposer argues that its design could also suggest a sun, we do not find that a sun
would be readily perceived by prospective purchasers. We note in this regard that a
sun is generally shown as having rays of light emanating from it. While the circle and
leaf designs of the parties may be common in a broad sense, as they are both spherical
or circular in shape and incorporate two leaves, this is quite different from concluding
that they are the same or similar design. See, e.g., Red Carpet Corp. v. Johnstown
American Enterprises Inc., 7 USPQ2d 1404 (TTAB 1988) (the parties’ respective
house designs were found to be dissimilar).
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As to the remaining features of Opposer’s composite mark, visually, the word
PARAMOUNT is displayed above the word CITRUS and is featured prominently in
the mark, appearing in large bold capital letters and spanning the width of the mark.
The word PARAMOUNT is equal to or more prominent than the design, while the
descriptive or generic and disclaimed word CITRUS is in smaller, normal (non-bold)
lettering, with only the letter “C” capitalized. We also note the fact that the word
“CITRUS” has been disclaimed does not make the terms “PARAMOUNT CITRUS”
subordinate to the design; disclaimed matter remains part of the mark. Giant Food,
Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 395 (Fed. Cir. 1983)
(finding GIANT to be the dominant portion of a mark consisting of the words GIANT
HAMBURGERS with a large background design, even though the wording GIANT
HAMBURGERS was disclaimed).
In general, literal portions of marks, rather than any design elements, are
generally regarded by consumers as the principal source-signifying portion of the
mark, because it is the wording that purchasers would use to refer to or request the
goods or services. See Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA
v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1134-35 (Fed.
Cir. 2015), cert. denied, 136 S. Ct. 982 (2016) (marks must be considered as a whole,
and while paw print design portion of opposer’s and applicant’s marks are
substantially similar, verbal portion of opposer’s mark cannot be disregarded as the
verbal portion is the one most likely to indicate origin; there was no evidence in the
record to indicate that consumers recognize solely the paw print portion of the
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registered mark as being associated with opposer’s products so as to give it more
weight in the analysis); In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908,
1911 (Fed. Cir. 2012) (citations omitted). (“In the case of a composite mark containing
both words and a design, ‘the verbal portion of the mark is the one most likely to
indicate the origin of the goods to which it is affixed”’… “the literal component of
brand names … will be spoken when requested by consumers.”); In re Appetito
Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987) (if a mark comprises both a word
and a design, then the word is normally accorded greater weight because it would be
used by purchasers to request the goods or services).
Opposer argues that the “circle and leaf design element” is the dominant portion
of its mark because it “would be the first thing a consumer would see when viewing
the mark.” 19 TTABVUE 19. However, the fact that the design precedes the lettering
by being placed visually above it does not dictate a finding that it is the dominant
feature of Opposer’s mark. Although the design contributes to the overall impression
of the mark as a whole, the design is suggestive of the goods, creating an association
with fresh citrus fruits, and reinforcing the commercial impression of the word
“CITRUS”. Purchasers of Opposer’s goods are more likely to request its goods using
the wording PARAMOUNT CITRUS rather than the “circle leaf” design. Thus, the
words PARAMOUNT CITRUS are more dominant in Opposer’s mark. See Herbko
International Inc. v. Kappa Books Inc., 308 F.2d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002) (“words dominated the design feature” where the design portion of
applicant’s mark reinforced the connotation of the words); B.V.D. Licensing Corp. v.
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Rodriguez, 83 USPQ2d 1500, 1509 (TTAB 2007) (letters in mark more dominant than
design, although design contributes to connotation and overall commercial
impression of applicant’s mark).
Although there are some similarities in the parties’ marks we find these
similarities are outweighed by the differences. When viewed in their entireties, the
total marks create different overall commercial impressions. We find the parties’
marks are more dissimilar than similar.
D. Balancing the Factors
We have carefully considered the testimony and other evidence pertaining to the
relevant du Pont factors, as well as all of the parties’ arguments with respect thereto,
including any evidence and arguments not specifically discussed in this opinion. To
the extent that any other du Pont factors for which no evidence was presented may
be applicable, we treat them as neutral.
Any of the du Pont factors may play a dominant role from case to case. du Pont,
177 USPQ at 567. In fact, a single factor may be dispositive. Kellogg Co. v. Pack’em
Enterprises Inc., 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991). In sum, we find the
first du Pont factor, the differences between the marks, to outweigh the other factors.
See Champagne Louis Roederer S.A. v. Delicato Vineyards, 148 F.3d 1373, 47
USPQ2d 1459, 1460-61 (Fed. Cir. 1998) (Federal Circuit affirmed Board finding of no
likelihood of confusion between mark CRYSTAL CREEK for wine and marks
CRISTAL for wine and CRISTAL CHAMPAGNE for champagne, where Board relied
solely on dissimilarity of marks); Kellogg Co. v. Pack’em, 21 USPQ2d at 1145
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(Affirming Board’s holding that the dissimilarity of the marks FROOTEE ICE and
FROOT LOOPS was dispositive); Syndicat Des Proprietaires Viticulteurs De
Chateauneuf-Du-Pape v. Pasquier DesVignes, 107 USPQ2d 1930 (TTAB 2013)
(despite the similarities in the goods, trade channels, and classes of consumers,
dissimilar marks makes confusion not likely). Accordingly, we conclude that
confusion is unlikely.
Decision: The notice of opposition based on likelihood of confusion is dismissed.