Aviemore Trustees Limited as Trustees in the Synergy Trust

Trademark Trial and Appeal Board

Jul 18, 2017

No. 79181654 (T.T.A.B. Jul. 18, 2017)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: July 18, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Aviemore Trustees Limited as Trustees in the Synergy Trust
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Serial No. 79181654
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Aviemore Trustees Limited1 as Trustees in the Synergy Trust, pro se.

Lana H. Pham, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____

Before Quinn, Kuczma and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Aviemore Trustees Limited as Trustees in the Synergy Trust (“Applicant”) seeks
registration on the Principal Register of the mark FRUIT SQUEEZE (in standard
characters; FRUIT disclaimed), for “fruit juice” in International Class 32.2

1 The record shows that Aviemore Trustees Limited is a trust established under the laws of
New Zealand comprising two trustees, namely, Lloyd Mark Brown, a citizen of New Zealand
and Lisa Kim Peart, also a citizen of New Zealand. See Applicant’s May 17, 2016, Response
to Office Action.
2 Application Serial No. 79181654, filed on December 14, 2015, seeking an extension of
protection of International Registration No. 1285795 under Trademark Act § 66(a), 15 U.S.C.
§ 1141f(a).
Serial No. 79181654
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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 of
likelihood of confusion with the registered mark FROOTY SQUEEZ (in standard
characters; FRUITY disclaimed) for “fruit juices; non-alcoholic beverages containing
fruit juices” in International Class 32.3
When the refusal was made final, Applicant requested reconsideration twice.
When both requests for reconsideration were denied, Applicant appealed.4 We affirm
the refusal to register.
As an initial matter, we note that Applicant attached copies of portions of the
evidentiary record, previously submitted during the prosecution of its involved
application, to its appeal brief. Because this evidence is already of record, its re-
submission with Applicant’s brief was unnecessary.5 See ITC Ent. Group Ltd. v.
Nintendo of America Inc., 45 USPQ2d 2021, 2022-23 (TTAB 1998) (submission of
duplicative papers is a waste of time and resources, and is a burden upon the Board).
Parties to Board cases occasionally seem to labor under the misapprehension that
attaching previously-filed evidence to a brief and citing to the attachments, rather
than to the original submissions, is a courtesy or a convenience to the Board. It is

3 Registration No. 4064087, registered on November 29, 2011.
4 With its December 18, 2016 notice of appeal, Applicant also requested a third
reconsideration of the Examining Attorney’s final Office Action. See 1 TTABUVE. On
December 19, 2016, Applicant filed a communication withdrawing this third request on the
ground that it inadvertently made the request. See 4 TTABVUE.
5 To the extent that any of these materials were not properly introduced into evidence, they
have not been given further consideration. Trademark Rule 2.142(d) (“[t]he record in the
application should be complete prior to the filing of an appeal”); TBMP § 1207.01 (June 2017).
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neither. The entire record is readily available to the panel. Because we must
determine whether such attachments are properly of record, citing to the attachments
requires us to examine the attachments and then attempt to locate the same evidence
in the record developed during prosecution of the application, requiring more time
and effort than would have been necessary if citations were directly to the prosecution
history. Therefore, Applicant should refrain from this practice in any future Board
cases. See Life Zone, Inc. v. Middleman Group, Inc., 87 USPQ2d 1953, 1955 n.4 (TTAB
2008) (attaching previously-filed evidence to a brief is neither a courtesy nor a
convenience to the Board).
Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the factors bearing on the issue of 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 Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). We have considered each du Pont factor that is relevant and
all evidence and arguments of record. See M2 Software, Inc. v. M2 Commc’ns, Inc.,
450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA
Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each
factor for which we have evidence, we focus our analysis on those factors we find to
be relevant.”). In any likelihood of confusion analysis, however, 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
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USPQ 24, 29 (CCPA 1976) (“The 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.”).
A. Comparison of the Goods, Trade Channels and Classes of
Purchasers
Applicant’s “fruit juice” is identical to Registrant’s “fruit juices.” Because the goods
described in the application and the cited registration are identical in part, we must
presume that the channels of trade and classes of purchasers are the same for these
identical goods. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed.
Cir. 2012) (legally identical goods are presumed to travel in same channels of trade
to same class of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ
721, 723 (CCPA 1968) (where there are legally identical goods, the channels of trade
and classes of purchasers are considered to be the same); United Global Media Grp.,
Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); American Lebanese Syrian
Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022, 1028
(TTAB 2011).
Given that the involved goods, trade channels and classes of purchasers are
identical, these factors weigh heavily in favor of a finding of likelihood of confusion.6

6 Applicant argues that the consumers of Applicant’s and Registrant’s goods are not the same
because the goods sold under Applicant’s involved mark are marketed and sold
internationally with focus on New Zealand and South Africa. See Applicant’s Brief, p. 18, 8
TTABVUE 19. Applicant’s argument is unavailing. If Applicant were to obtain a U.S.
registration for its FRUIT SQUEEZE mark it eventually would have to demonstrate use in
commerce in the United States in order to maintain its registration by filing an affidavit or
declaration of such use under Section 71 of the Trademark Act. See Trademark Rule 7.36(b),
37 C.F.R. 7.36(b). Because there are no limitations in Applicant’s identification of goods with
regard to trade channels or classes of purchasers, and since Applicant’s goods are identical
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B. Similarity of the Marks
We next address the du Pont likelihood of confusion factor focusing on “the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression.” Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005) (quoting du Pont, 177 USPQ at 567). In comparing the marks, we are mindful
that where, as here, the goods are identical, the degree of similarity necessary to find
a likelihood of confusion need not be as great as where there is a recognizable
disparity between the goods. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992);
Jansen Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Schering-
Plough HealthCare Prod. Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB
2007).
“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, 101 USPQ2d at
1721 (quotation omitted).

to Registrant’s goods, it is presumed, as noted above, that the identical goods would travel in
the identical U.S. channels of trade and will be available to the same classes of U.S.
purchasers.
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Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, our analysis cannot be predicated on dissecting the marks
into their various components; that is, the decision must be based on the entire
marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). On the other hand, 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, 224 USPQ at 751.
Applicant’s mark is FRUIT SQUEEZE in standard characters. The cited mark is
FROOTY SQUEEZ, also in standard characters. Here, the dominant portion of both
marks is the term SQUEEZE or the phonetically equivalent term SQUEEZ because
the terms FRUIT in Applicant’s mark and FROOTY (an intentional misspelling of
the word FRUITY) in Registrant’s mark are merely descriptive (or generic) with
respect to fruit juices and have been disclaimed. Descriptive, generic and disclaimed
terms such as these are entitled to less weight in our analysis. Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding
descriptive terms, this court has noted that the ‘descriptive component of a mark may
be given little weight in reaching a conclusion on the likelihood of confusion.’”)
(quoting In re Nat’l Data, 224 USPQ at 752); In re Dixie Rests., Inc., 105 F.3d 1405,
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41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d
1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the
mark’s commercial impression”).
Moreover, both Applicant’s mark and Registrant’s mark consist of two words. As
noted above, the first word in both marks is a descriptive term, i.e., FRUIT and the
intentionally misspelled word FRUITY, namely, FROOTY, followed by the word,
SQUEEZE or its phonetical equivalent. “Fruit” is defined as “the usually edible
reproductive body of a seed plant; especially one having a sweet pulp associated with
the seed – the fruit of the tree.”7 “Fruity,” which was intentionally misspelled as
FROOTY by Registrant, is defined as “relating to, made with, or resembling fruit.”8
When combined, FRUIT SQUEEZE and FROOTY SQUEEZ (which phonetically
sounds like FRUITY SQUEEZE) convey similar connotations and commercial
impressions, i.e., that the Applicant and Registrant’s juices are made from freshly
squeezed fruit.
Despite sounding like FRUITY, Applicant contends that FROOTY has a different
meaning. In support of this contention, Applicant submitted evidence from
urbandictionary.com, namekun.com, definething.com, wikiname.net, and
namething.net which define FROOTY as “a large person with a shocking gut that
protrudes from below the waist line,” “an emotional person who is known to be
generous and altruistic,” or “the fictional character from the television series Son

7 See March 28, 2016, Office Action.
8 See October 11, 2016 denial of request for reconsideration.
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Pari.”9 We note that none of these dictionary definitions originate from recognized
U.S. dictionaries such as Merriam-Webster dictionary, Oxford English dictionary, or
American Heritage dictionary. Moreover, while it is possible that consumers may
understand the term FROOTY in the cited mark to refer to the definitions submitted
by Applicant in the abstract, Applicant is nonetheless ignoring the descriptive nature
of the word FROOTY (an intentional misspelling of the term FRUITY which has been
disclaimed) in the context of Registrant’s fruit juices and non-alcoholic beverages
containing fruit juices.
Applicant also argues that “SQUEEZ” and “SQUEEZE” are visually different
because Applicant’s mark ends with the letter “e.” We find that the omission of the
letter “e” in the cited mark does not alter the similarities in the connotation or
commercial impression of the term SQUEEZE, nor does it change the manner in
which the term is pronounced. Similarity in sound alone may be sufficient to support
a finding that the marks are confusingly similar. In re White Swan Ltd., 8 USPQ2d
1534, 1535 (TTAB 1988); see also In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581,
1586 (TTAB 2007); TMEP §1207.01(b)(iv) (April 2017).
Moreover, minor variances in the way a word is spelled or the deletion/addition of
a letter does not necessarily change or distort the pronunciation, connotation or
commercial impression of a mark. Accordingly, Applicant’s mark and Registrant’s
mark are similar in sound, meaning and overall commercial impression.

9 See Applicant’s October 27, 2016, Request for Reconsideration.
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Because the dominant element of both Applicant’s mark and the cited mark is
virtually identical and since the marks in their entireties create similar overall
connotations and commercial impressions and are similar in sound, we find that,
when the marks are considered in their entireties, they are similar. Thus, the first
du Pont factor also favors a finding of likelihood of confusion.
C. Strength of Mark
Applicant argues that the term SQUEEZE or variations thereof is weak in relation
to the involved goods and therefore the cited mark should be afforded a narrow scope
of protection. In support of its argument, Applicant has submitted numerous third-
party registrations, as well as a list of applications which are abandoned, that include
the term SQUEEZE or close variations thereof used in association with fruit juices
and/or fruit-based beverages, as well as for unrelated goods.10 Additionally, Applicant
submitted a summary list of Google search results for the phrase “FRUIT
SQUEEZE,” as well as “image” results retrieved from a Google search for the same
phrase.11
Evidence of extensive registration and use by others of a term on the same or very
similar goods can be “powerful” evidence of weakness. See Jack Wolfskin Ausrustung
Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363,
116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC,
794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015).

10 See Applicant’s May 17, 2016, Response to Office Action and September 18, 2016, Request
for Reconsideration.
11 September 18, 2016, Request for Reconsideration.
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Here, Applicant has not submitted any probative evidence of actual third-party
marketplace use of the term “SQUEEZE” used in connection with fruit juice or fruit-
based beverages.12 Instead, Applicant has submitted only third-party registrations
and abandoned applications. Third-party registrations and/or trademark
applications such as those offered by Applicant are not evidence of use of the marks,
Olde Tyme Foods, Inc. v. Roundy's Inc., 961 F.2d 200, 22 USPQ2d 1542, 1545 (Fed.
Cir. 1992), but they can be used to show that a mark or portion thereof is weak. See
Juice Generation, 115 USPQ2d at 1675 (weakness of PEACE, LOVE); Jack Wolfskin,
116 USPQ2d at 1136; Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 917 (CCPA
1976) (even if “there is no evidence of actual use” of third-party registrations, such
registrations “may be given some weight to show the meaning of a mark in the same
way that dictionaries are used”). An applicant may come closer to a weak mark
without causing a likelihood of confusion. Juice Generation, 115 USPQ2d at 1674.
A review of the third-party registrations submitted by Applicant reveals that some
of the registrations have either been canceled or are expired, while others are for
goods unrelated to the goods at issue.

12 Applicant’s submission of printouts from a list retrieved by a Google search for “fruit
squeeze” is not particularly persuasive because it does not include printouts of the pages from
the listed websites, and it is often difficult to understand the context in which the retrieved
phrase is used. Thus, the Google search list is of limited probative value. See In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007) (“Search engine
results—which provide little context to discern how a term is actually used on the webpage
that can be accessed through the search result link—may be insufficient to determine the
nature of the use of a term or the relevance of the search results to registration
considerations.”); see also In re Max Capital Group Ltd., 93 USPQ2d 1243 (TTAB 2010).
Similarly, the submission of “image” results of the term “fruit squeeze” is also of limited
probative value since the images themselves do not demonstrate the source of the use or the
extent of use of the marks pictured therein.
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A canceled or expired registration is generally evidence only of the fact that that
registration issued and therefore is not evidence of the weakness of a mark. In re
Brown-Forman Corp., 81 USPQ2d 1284, 1286 n.3 (TTAB 2006). Furthermore, an
application (whether active or abandoned) only serves as proof that an application
was filed. In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016). Thus we
accord the canceled or expired registrations and the abandoned applications
submitted by Applicant no probative value. Moreover, the submitted third-party
registrations identifying goods unrelated to the goods at issue in this case also do not
support Applicant’s argument that the term SQUEEZE is weak in relation to fruit
juices or fruit-based beverages. In re Melville Corp., 18 USPQ2d 1386, 1388-99 (TTAB
1991) (“Registrations for goods unrelated to the clothing field are irrelevant to our
discussion”); Anderson, Clayton & Co. v. Christie Food Products Inc., 4 USPQ2d 1555,
1557 n.7 (TTAB 1987) (“The other third-party registrations relating to marks in
unrelated fields are of no probative value”).
Notwithstanding the foregoing, we note that Applicant submitted the following
live third-party registrations for marks that include the term SQUEEZE or close
variations thereof for fruit juice or fruit-based beverages:
Registration No. Mark Goods
1572274 MAIN SQUEEZE fruit juices concentrates
and fruit-juice drink
concentrates sold in bulk
to be dispensed through
drink-dispensing
equipment
1699921 FRUIT SQUEEZERS
(FRUIT Disclaimed)
non-alcoholic beverages;
namely, non-carbonated
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soft drinks, fruit juices,
fruit drinks made with
water
1753372 MONDO FRUIT
SQUEEZER
(FRUIT disclaimed)
non-alcoholic beverages;
namely, non-carbonated
soft drinks, fruit drinks
made with water
1747333 non-alcoholic beverages;
namely, non-carbonated
soft drinks, fruit drinks
made with water
2138335 CITRUS SQUEEZE
(CITRUS disclaimed)
non-alcoholic beverages,
namely, smoothies
containing fruit and
vegetable juices made
fresh and sold
exclusively at retail
stores that sell fresh
juice and/or smoothie
products
2218968 SOUTH PACIFIC
SQUEEZE
fruit juice drinks; fruit
smoothies
2290980 LIME SQUEEZE

(LIME disclaimed)
Soft drink-juice blend
for consumption on or
off the premises
2230928 JUICE SQUEEZE

(JUICE disclaimed)
fruit juice flavored
sparkling water
2733864 SQUEEZ’R Carbonated and non-
carbonated soft drinks,
namely, fruit juices
3743301 PURE SQUEEZE fruit juices
3995684 SQUEEZE ON THE
FLAVOR!
fruit juice
3039948 BIG SQUEEZE 100 Percent pure fruit
juices, namely, orange
juice and grapefruit
juice
3184630 LEMMON BERRY
SQUEEZE

(LEMON BERRY
disclaimed)
fruit flavored drink
containing water.
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3876758

fruit flavored drinks and
fruit drinks
4094265 HAPPYSQUEEZE fruit and vegetable
juices, namely,
smoothies
3950302 CORN SQUEEZIN’
(CORN disclaimed)
soft drinks; soft drinks,
namely, carbonated
citrus flavored soft
drinks
4082940

(CORN disclaimed)
soft drinks; soft drinks,
namely, carbonated
citrus flavored soft
drinks
4039849 SQUEEZE THE DAY fruit beverages; fruit
drinks; fruit juices;
vegetable juices
4176892 NATURE’S SQUEEZE fruit drinks and juices
4215513 TEXAS SQUEEZE
(TEXAS disclaimed)
fruit juices and fruit
drinks
4318595 KARMIC SQUEEZE various beverages,
including, fruit drinks
and fruit juices
4409890 SQUEEZE LIFE Various beverages,
including, inter alia,
fruit juices, fruit drinks
and soft drinks
containing fruit juices
4669702 ORGANIC SQUEEZE
(ORGANIC disclaimed)
Organic beverages,
namely, blended fruit
and vegetable drinks
and smoothies
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4726293 SQUEEZE JUICE WORKS fruit juices; herbal
juices; vegetable juices
4624738 “WE SQUEEZE TO
PLEEZE”
fruit juices
4847825 FREEZ’EM, SQUEEZ’EM,
PLEEZ’EM
Fruit flavored non-
carbonated soft drinks;
fruit flavored beverages
to be frozen in the
nature of a slush drink
4929069 TEAZZERS SQUEEZE lemonade
4497216 CERVEZA SQUEEZE Non-alcoholic beverages
to be poured into and for
mixing with beer and
other alcoholic
beverages, namely, fruit
beverages, fruit-based
beverages, fruit flavored
beverages, isotonic
beverages, and beauty
beverages, namely, fruit
juices and energy drinks
containing nutritional
supplements

While this third-party registration evidence appears to demonstrate that the term
SQUEEZE or slight variations thereof is weak when used in connection with fruit
juices or fruit-based beverages, we nonetheless note that even weak marks are
entitled to protection against registration of similar marks for identical goods, as is
the case here. King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1401 182
USPQ 108, 109 (CCPA 1974); Matsushita Electric Company v. National Steel Co., 442
F.2d 1383, 170 USPQ 98, 99 (CCPA 1971); (“Even though a mark may be ‘weak’ in
the sense of being a common word in common use as a trademark, it is entitled to be
protected sufficiently to prevent confusion from source arising”); see also In re Max
Serial No. 79181654
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Capital Group, 93 USPQ2d at 1246; In re Colonial Stores, 216 USPQ 793, 795 (TTAB
1982). Here, Registrant is at least entitled to protection from registration of
Applicant’s very similar mark for identical goods. In view of the foregoing, this du
Pont factor, at best, slightly favors Applicant.
In any event, prior decisions and actions of other trademark examining attorneys
in registering other marks or approving marks for registration have little evidentiary
value and are not binding upon the USPTO or the Trademark Trial and Appeal
Board. See In re Cordua Rest. Inc., 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016)
(citing In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)
(“Even if some prior registrations had some characteristics similar to Nett Design’s
application, the PTO’s allowance of such registrations does not bind the Board or this
court.”)). Each case is decided on its own facts, and each mark stands on its own
merits. See In re Shinnecock Smoke Shop, 571 F.3d 1171, 91 USPQ2d 1218, 1221
(Fed. Cir. 2009) (“Applicant's allegations regarding similar marks are irrelevant
because each application must be considered on its own merits.”); In re Binion, 93
USPQ2d 1531, 1536 (TTAB 2009).
D. Lack of Confusion Based on Alleged Nonuse of Cited Mark
Finally, Applicant argues that there cannot be any confusion because Registrant
is purportedly no longer in business and is no longer using its FROOTY SQUEEZ
mark.13 The fact that Registrant may no longer be using its mark because it is an
allegedly defunct business does not mean that the cited registration is currently

13 See Applicants’ Appeal Brief, pp. 16-18, 8 TTABVUE 17-19.
Serial No. 79181654
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invalid. Applicants’ argument is effectively an impermissible collateral attack on the
cited FROOTY SQUEEZ registration, which while appropriate for a petition for
cancellation based on abandonment or nonuse, is not appropriate or permissible in
this ex parte proceeding. In re Dixie Rests. Inc., 41 USPQ2d at 1534-35 (“Dixie’s
argument that DELTA is not actually used in connection with restaurant services
amounts to a thinly-veiled collateral attack on the validity of the registration … the
present ex parte proceeding is not the proper forum for such a challenge.”);
Cosmetically Yours, Inc. v. Clairol Inc., 424 F.2d 1385, 165 USPQ 515, 517 (CCPA
1970) (“[I]n the absence of a counterclaim for cancellation under section 14 of the Act
(15 U.S.C. 1064), it is not open to an applicant to prove abandonment of the opposer’s
registered mark; and appellant’s argument (upon which it now stakes its appeal) that
opposer no longer uses the registered mark ‘Come Alive’ must be disregarded.”).
E. Balancing the Factors
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. Because we have
found that: (1) the marks are similar in sound, connotation and commercial
impression, notwithstanding any apparent weakness of Registrant’s mark; and (2)
Applicant’s “fruit juices” are identical to Registrant’s “fruit juice” and presumed to
move in the same channels of trade to the same classes of purchasers, we conclude
that Applicant’s mark, as used in connection with the goods identified in the
application, so resembles the cited mark for the identified goods as to be likely to
cause confusion or mistake, or to deceive under Section 2(d) of the Trademark Act.
Serial No. 79181654
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Decision: The refusal to register Applicant’s FRUIT SQUEEZE mark under
Section 2(d) of the Trademark Act is affirmed.