Central Garden & Pet Company

Trademark Trial and Appeal Board

May 23, 2012

No. 85024647 (T.T.A.B. May. 23, 2012)

Mailed:
May 23, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Central Garden & Pet Company
________

Serial No. 85024647
_______

Diane J. Mason of LeClairRyan for Central Garden & Pet
Company.

April A. Hesik, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
_______

Before Quinn, Bergsman and Shaw,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

The Central Garden & Pet Company (“applicant”) filed
an intent-to-use application to register the mark WILD BY
NATURE, in standard character form, for “cat food; dog
food,” in Class 31.
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. § 1052(d), on the ground that applicant’s
mark is likely to cause confusion with the previously
registered marks listed shown below owned by Kent Nutrition
Group, Inc.:
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 85024647
2
1. Registration No. 2926514 for the mark BY NATURE,
in typed drawing form, for “feeds for small animals such as
dogs and cats,” in Class 31;1
2. Registration No. 3319316 for the mark BY NATURE,
in typed drawing form, for “animal feed and pet treats,” in
Class 31;2
3. Registration No. 3344927 for the mark BY NATURE
and design, shown below, for “pet foods and pet treats,” in
Class 31;3

and
4. Registration No. 3756185 for the mark BY NATURE
and design, shown below, for “pet food, pet treats, wild
bird food,” in Class 31.4

1 Issued February 15, 2005; affidavits under Sections 8 and 15
accepted and acknowledged.
2 Issued October 23, 2007.
3 Issued November 27, 2007.
4 Issued March 20, 2010.

Serial No. 85024647
3
Preliminary Issue
Applicant submitted evidence of third-party use of
marks incorporating the word “Nature” in connection with
pet food for the first time with its brief. The examining
attorney objected to the submission of the third-party
evidence in applicant’s brief on the ground that it is
untimely. Trademark Rule 2.142(d) provides that the record
in the application should be complete prior to the filing
of an appeal, and that, after an appeal is filed, if the
applicant or examining attorney wishes to introduce
additional evidence, a request for remand should be filed.
The evidence of third-party use is untimely and, therefore,
the examining attorney’s objection is sustained and we have
not considered the evidence of third-party use filed with
applicant’s brief.
Likelihood of Confusion
Our determination of likelihood of confusion under
Section 2(d) is based on an analysis of all of the
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 Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003).
Serial No. 85024647
4
A. The similarity or dissimilarity and nature of the
services described in the application and services
described in the registration, likely-to-continue
trade channels and classes of consumers.

Applicant is seeking to register its mark for cat food
and dog food. Registrant’s marks are registered for “feeds
for small animals such as dogs and cats,” “animal feed and
pet treats,” and “pet foods and pet treats.” The goods are
legally identical.
Because the goods are legally identical, we must
presume that the channels of trade and classes of
purchasers are the same. See In re Thor Tech Inc., 90
USPQ2d 1634, 1639 (TTAB 2009); In re Smith and Mehaffey, 31
USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are
legally identical, they must be presumed to travel in the
same channels of trade, and be sold to the same class of
purchasers.”). See also In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (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).
B. The strength of the registered mark.

Applicant argues that the registrant’s BY NATURE marks
are weak marks entitled to only a narrow scope of
protection because “‘NATURE,’ especially as applied to pet
Serial No. 85024647
5
food … has the positive connotation that something is
wholesome and better for your pet as it is in a natural
state with no additives or chemicals.”5 To support its
argument applicant referenced a dictionary definition of
the word “wild” and three third-party registrations
incorporating the term “By Nature” and 10 third-party
registrations incorporating the word “Nature” for animal
feed.6
The word “wild” is defined, inter alia, as “living a
state of nature, not tamed or domesticated.”7
Applicant submitted the following third-party
registrations incorporating the term “By Nature”:

5 Applicant’s Brief, pp. 3.

6 The copies of pending applications submitted by applicant are
incompetent to prove anything other than the fact that the
applications were filed. See Olin Corp. v. Hydrotreat, Inc., 210
USPQ 62, 65 n.5 (TTAB 1981) (“Introduction of the record of a
pending application is competent to prove only the filing
thereof.”); Merritt Foods Co. v. Americana Submarine, 209 USPQ
591, 594 (TTAB 1980).

The copies of registrations of marks for products that are not
related to pet food have little value in determining likelihood
of confusion in this cases. See Cook's Pest Control, Inc. v.
Sanitas Pest Control Corporation, 197 USPQ 265, 271 (TTAB 1977).

The copy of Registration No. 2934068 for the mark MOTHER NATURE
for “pet food” has little probative value in our analysis because
the term “Mother Nature” engenders a distinctly different meaning
and commercial impression from the marks involved in this case.

7 Dictionary.com based on The Random House Dictionary.

Serial No. 85024647
6
1. Registration No. 3269610 for the mark BRAVO! THE
DIET DESIGNED BY NATURE for “animal food”;
2. Registration No. 3138745 for the mark TOUGH BY
NATURE for “pet toys”; and
3. Registration No. 3443225 for the mark GREEN BY
NATURE for a wide variety of cosmetics registered on the
Supplemental register.
The 10 third-party registrations for pet foods
include, inter alia, NATUREDIET, NATURE SMART, NATUREWISE,
etc.
Because BY NATURE has been registered, it is entitled
to a presumption of validity pursuant to Section 7(b) of
the Trademark Act of 1946, 15 U.S.C. § 1057(b) (i.e., a
certificate of registration is prima facie evidence of the
validity of the registered mark and of the registration of
the mark, of the ownership of the mark, and of the owner’s
exclusive right to use the registered mark in commerce on
or in connection with the goods or services specified in
the registration). Thus, we must consider the registered
marks BY NATURE to be, at worst, suggestive.
In this regard, absent evidence of actual use, third-
party registrations have little probative value because
they are not evidence that the marks are in use on a
commercial scale or that the public has become familiar
Serial No. 85024647
7
with them. See Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476
F.2d 1004, 177 USPQ 462, 473 (CCPA 1973) (the purchasing
public is not aware of registrations reposing in the U.S.
Patent and Trademark Office). See also In re Hub
Distributing, Inc., 218 USPQ 284, 285 (TTAB 1983).
In any event, even if we were to find, based on
applicant’s evidence, that registrant’s marks are weak and
entitled to a narrow scope of protection, that scope of
protection is still broad enough to prevent the
registration of similar marks for identical goods. See In
re Farah Manufacturing Co., Inc., 435 F.2d 594, 168 USPQ
277, 278 (CCPA 1971).
C. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We now turn to 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. In re E. I. du Pont
De Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd.,
8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co.,
6 USPQ2d 1041, 1042 (TTAB 1987). In comparing the marks,
we are mindful that where, as here, applicant’s goods are
Serial No. 85024647
8
legally identical to registrant’s goods, the degree of
similarity necessary to find likelihood of confusion need
not be as great as where there is a recognizable disparity
between the goods. Century 21 Real Estate Corp. v. Century
Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992); Real Estate One, Inc. v. Real Estate 100
Enterprises Corporation, 212 USPQ 957, 959 (TTAB 1981); ECI
Division of E-Systems, Inc. v. Environmental Communications
Incorporated, 207 USPQ 443, 449 (TTAB 1980).
Moreover, the test is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
terms of 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 1835, 1741 (TTAB 1991), aff’d unpublished, No.
92-1086 (Fed. Cir. June 5, 1992). In making this
determination, we must consider the recollection of the
average purchaser who normally retains only a general,
rather than a specific, impression of the marks. Sealed
Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975). In this case, the average purchaser is a pet owner.
Serial No. 85024647
9
The marks WILD BY NATURE and BY NATURE are similar to
the extent that they both include the term “By Nature.”8 In
fact, applicant’s mark WILD BY NATURE incorporates
registrant’s entire mark and, in this case, the structure
of the mark suggests that applicant’s products are a
variation of registrant’s products. See Saks & Co. v. TFM
Indus. Inc., 5 USPQ2d 1762, 1764 (TTAB 1987) (“the use of
the phrase BY FIRE ISLANDER [in FOLIO BY FIRE ISLANDER] may
only tend to increase and not decrease the likelihood of
confusion” with FOLIO); In re Apparel Ventures, Inc., 229
USPQ 225, 226 (TTAB 1986)(SPARKS BY SASSAFRAS for women’s
clothing is likely to cause confusion with SPARKS for
shoes, boots and slippers, in part, because
“[t]he words ‘by sassafras’ indicate to prospective
purchasers that ‘sassafras’ is the name of the entity which
is the source of the ‘SPARKS’ brand clothing. Prospective
purchasers do not necessarily know or care which business
calls itself ‘sassafras,’ but they would assume that when
‘SPARKS’ appears on two similar products they both come

8 For purposes of the likehood of confusion analysis, we focus
our attention on registrant’s BY NATURE mark, in typed drawing
form, for “feeds for small animals such as dogs and cats” and
“pet treats.” If we do not find that registrant’s typed drawing
marks are similar to applicant’s mark, then there would not be a
likelihood of confusion between registrant’s composite marks and
applicant’s mark. In re Max Capital Group Ltd., 93 USPQ2d 1243,
1245 (TTAB 2010).

Serial No. 85024647
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from the same source.”); In re Riddle, 225 USPQ 630 (TTAB
1985)(“Richard Petty's Accu Tune” for automotive service
centers specializing in engine tune-ups and oil changes, is
likely to cause confusion with “Accutune” automotive
testing equipment.”).
Applicant argues that because the term “By Nature” is
inherently weak, the dominant portion of the mark WILD BY
NATURE is the word “Wild” which is sufficient to
distinguish applicant’s mark from the marks in the cited
registrations. We disagree. For the reasons previously
set forth, when the marks are compared in their entireties,
we find that the marks are more similar than dissimilar
arising from the fact that the structure of applicant’s
mark suggests that applicant’s product is a variation of
registrant’s product line.
E. Balancing the factors.
In view of the similarity of the marks, the legal
identity of the goods and the presumption that the goods
move in the same channels of trade and are sold to the same
classes of consumers, we find that applicant’s mark WILD BY
NATURE for “cat food; dog food” is likely to cause
confusion with the mark BY NATURE for “feeds for small
animals such as dogs and cats” and “pet treats.”
Decision: The refusal to register is affirmed.