AOG Investments, LLC

Trademark Trial and Appeal BoardOct 5, 2017

No. 86864638 (T.T.A.B. Oct. 5, 2017)

This Opinion is not a Precedent of the TTAB Mailed: October 5, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re AOG Investments, LLC _____ Serial No. 86864638 _____ Phillip Thomas Horton, Esq., for AOG Investments, LLC. Kim Saito, Law Office 124, Lydia Belzer, Managing Attorney. _____ Before Kuhlke, Ritchie, and Adlin, Administrative Trademark Judges. Opinion by Ritchie, Administrative Trademark Judge: AOG Investments, LLC (“Applicant”) seeks registration on the Principal Register of the mark SORELLA,1 in standard character format, for “coffee,” in International Class 30. The mark contains a translation statement that “The English translation of SORELLA in the mark is SISTERS.” 1 Application Serial No. 86864638 was filed on January 4, 2016, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), asserting applicant’s bona fide intent to use in commerce. The Application also covers goods in International Class 34 which were not subject to the refusal. Serial No. 86864638 - 2 - The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that when applied to the identified goods, it so resembles the previously registered mark SISTERS,2 in standard character format, for “coffee; salad dressings,” in International Class 30, as to be likely to cause confusion, mistake, or to deceive. When the refusal was made final, Applicant filed this appeal, which is fully briefed. For the reasons discussed below, we affirm the refusal to register. I. Likelihood of Confusion Our determination of the issue of likelihood of confusion is based on an analysis of all 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 Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). 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 (CCPA 1976). See also In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). We consider the du Pont factors for which arguments or evidence were presented. The other factors, we consider to be neutral. 2 Registration No. 3786174 issued May 4, 2010. Sections 8 and 15 affidavits have been accepted and acknowledged. Serial No. 86864638 - 3 - Goods/Channels of Trade Both the application and the cited registration identify “coffee.” The goods are therefore identical. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012). Because the goods are identical, we must presume that the channels of trade and classes of purchasers are also the same. See In re Viterra Inc., 101 USPQ2d at 1908 (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion). Applicant concedes “the similarity” of the goods and the channels of trade.3 We find that these du Pont factors weigh heavily in favor of finding a likelihood of consumer confusion. The Similarity/Dissimilarity of the Marks We consider and compare the appearance, sound, connotation and commercial impression of the marks in their entireties. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). In comparing the marks, we are mindful that the test is not whether they can be distinguished when subjected to a side-by-side comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial impression 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 3 4 TTABVUE 12. Serial No. 86864638 - 4 - USPQ2d 1735, 1741 (TTAB 1991), aff'd mem., 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). When, as here, the goods are identical, the degree of similarity between the marks which is required to support a finding of likelihood of confusion is less than if the goods were not identical. In re Viterra Inc., 101 USPQ2d at 1912. Applicant’s mark is SORELLA, which according to the application itself means “sisters.” The Examining Attorney also submitted an Italian to English translation of “SORELLA” as “sisters.”4 The mark in the cited registration is SISTERS. The doctrine of foreign equivalents applies when the “ordinary American purchaser” would “stop and translate” a foreign mark into its English equivalent. Palm Bay Imps, Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1377, 73 USPQ2d 1689, 1696 (Fed. Cir. 2005). The doctrine applies only where the English translation is “literal and direct” with no contradictory evidence of other relevant meanings or shades of meaning. TMEP 1207.01(b)(vi)(B) (April 2017). It is not an absolute rule, and does not include dead or obscure languages. In re Spirits Int’l, N.V., 563 F.3d 1347, 1351, 90 USPQ2d 1489, 1491 (Fed. Cir. 2009). 4 http://translation.babylon-software.com. Attached to the November 14, 2016 Final Office Action, at 8. Serial No. 86864638 - 5 - The doctrine of foreign equivalents has been applied to Italian words that have English equivalents. In re Ithaca Indus., Inc., 230 USPQ 702 (TTAB 1986) (finding similarity and likelihood of confusion between the arbitrary Italian term “LUPO” and its English equivalent “WOLF” for items of clothing). In that case, the Board held that “it does not require any authority to conclude that Italian is a common, major language in the world and is spoken by many people in the United States.” Id. at 704- 705. In that regard, the Examining Attorney here submitted Wikipedia evidence stating that Italian is “the eighth most spoken language in the country” with “the 2nd largest ethnic market in the US behind only the Hispanic market.”5 While the Examining Attorney also submitted evidence that less than 1% of American households speak Italian at home,6 and Applicant argues that this is insufficient to apply the doctrine, we disagree. Italian is a relatively common, modern language. Thus the doctrine of foreign equivalents is appropriate, and the commercial impression and connotation of the marks, used on the same goods, is the same. We find that the marks’ essentially identical commercial impressions and connotations outweighs differences between their sight and sound, and this factor also weighs in favor of finding a likelihood of confusion. 5 https://en.wikipedia.org. Attached to the November 14, 2016 Final Office Action, at 2. 6 Infoplease.com. Attached to the November 14, 2016 Final Office Action, at 5. Serial No. 86864638 - 6 - Consumer Sophistication and Degree of Purchaser Care Applicant urges us to consider consumers’ sophistication and degree of purchasing care, asserting: “Traditionally, consumers of these goods are sophisticated insofar as coffee goes, because consumers are picky about the company they choose to buy from and the type of coffee they purchase.”7 Applicant has not presented any evidence, however, that the consumers of coffee will necessarily have a particular level of sophistication, or that the goods are necessarily of a particular price range as to indicate a likelihood of elevated purchaser care. We must make our determination based on the least sophisticated consumer, and we assume that coffee may be sold at varying qualities and prices. Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014) (affirming that TTAB properly considered all potential investors for recited services, which included sophisticated investors, but that precedent requires consumer care for likelihood-of- confusion decision to be based “on the least sophisticated potential purchasers”). Since we have to consider that coffee, sold at varying price levels, may be an impulse purchase to the general public or at best is purchased with ordinary care for such goods, we find this factor to favor finding a likelihood of confusion. Actual Confusion and Potential for Confusion Finally, Applicant urges us to consider the lack of actual confusion. The lack of evidence of actual confusion carries little weight in an ex parte analysis, however. In re Majestic Distilling Co., Inc., 65 USPQ2d at 1205. This is particularly so where, as 7 4 TTABVUE 13. Serial No. 86864638 - 7 - here, the application is based on an intent-to-use and there has not yet been an opportunity for confusion to occur. Accordingly, this factor is neutral. II. Conclusion On balance, after considering all of the arguments and evidence of record as they pertain to the relevant du Pont factors, we find that the goods are legally identical and presume they would travel through the same channels of trade to some of the same general consumers, including as an impulse purchase. Furthermore, the identical meaning of the marks, which have the same commercial impression, also weighs in favor of finding a likelihood of confusion. Accordingly, we find a likelihood of confusion between the mark SORELLA for “coffee” and the mark in the cited registration, SISTERS, for “coffee, salad dressings.” Decision: The refusal to register Applicant’s mark in International Class 30 is affirmed. The application will proceed to publication in International Class 34.