Central Garden & Pet Company

Trademark Trial and Appeal BoardMay 23, 2012

No. 77956966 (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. 77956966 _______ Diane J. Mason of LeClairRyan LLP for Central Garden & Pet Company. Amy C. Kean, Trademark Examining Attorney, Law Office 113 (Odette Bonnet, Managing Attorney). _______ Before Bucher, Wellington, and Wolfson, Administrative Trademark Judges. Opinion by Wellington, Administrative Trademark Judge: Central Garden & Pet Company (“applicant”) has filed an application to register on the Principal Register the mark GROW SMART (in standard character form) for “Planting soil; Soil amendments; Soil conditioners for domestic use” in International Class 1.1 The term GROW has been disclaimed. 1 Serial No. 77956966, filed March 11, 2010, based on an allegation of a bona fide intent to use the mark in commerce. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 77956966 2 Registration has been finally refused under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), in view of the previously registered mark SMARTGROW (in standard character form) for “Animal and human hair used as a fertilizer, for moisture retention, and an all-natural growth enhancement” in International Class 5.2 Applicant concurrently appealed the final refusal of its application and filed a request for reconsideration. The examining attorney denied the request for reconsideration. Both applicant and the examining attorney have filed briefs. As discussed below, the refusal to register is affirmed. Our determination of the examining attorney's refusal to register the mark under Section 2(d) of the Trademark Act is based on an analysis of all of the facts in evidence that are relevant to the factors bearing on the likelihood of confusion issue. See 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 and/or services. See Federated Foods, Inc. v. 2 Registration No. 3359053, issued December 25, 2007. Serial No. 77956966 3 Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). We first consider the relatedness of applicant’s and registrant’s goods. In making our determination, we must consider the goods as they are described in the registration and application, and we cannot read limitations into those goods. See Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom Systems Inc. v. Houston Computer Services Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1987). We agree with the examining attorney’s analysis of the record in that it “shows that [registrant’s] hair-based fertilizer goods are a type of soil amendment and soil conditioner, as a result the applicant’s broadly worded identification of goods wholly encompasses the registrant’s more narrowly tailored identification.” Brief at (unnumbered) p. 13. (Emphasis in original). Specifically, we take notice of the following relevant dictionary definitions submitted by the examining attorney with her brief:3 3 The examining attorney has requested and, we agree, that notice be taken of the dictionary definitions. The Board may take judicial notice of dictionary definitions, including online dictionaries which exist in printed format. See In re CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB 2002). Serial No. 77956966 4 Admendment: A material, such as organic matter or sand, mixed into soil to improve growing conditions. [The American Heritage Dictionary, Houghton-Mifflin Co. 2007]; Conditioner: One that conditions, especially an additive or application that improves the quality or usability of a substance. [e.g.,] a soil conditioner. [The American Heritage Dictionary, Houghton-Mifflin Co. 2007]; and Fertilizer: Any natural or chemical substance, especially nitrogen, potassium salts or phosphates, that is added to or dug into soil to improve the yield, size or quality of plants, especially food crops. [Chambers 21st Century Dictionary, Chambers Harrap Publishers Ltd. 2001]. These definitions show that a fertilizer may be considered a soil amendment or conditioner. The definitions also corroborate other evidence submitted by the examining attorney, namely, excerpts from online articles and printouts from third-party informational websites. The internet evidence shows that hair is regarded and used as a fertilizer and conditioner for enriching planting soil.4 For example, under the heading “Human Hair Makes Good Fertilizer,” one article explains how hair may be a source of nitrogen and that this is beneficial for the soil. See also University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). 4 Article excerpts were attached to the first Office action (dated June 15, 2010) and final Office action (dated January 10, 2011). Serial No. 77956966 5 Thus, based on the evidence, we find that applicant’s soil amendments and conditioners, as identified, encompass registrant’s fertilizer. Applicant clearly takes issue with this conclusion and argues that its planting soil, soil amendments and soil conditioners for domestic use are different from the registrant’s “animal and human hair used as a fertilizer” because the latter goods “are obviously targeted to consumers who do not want to use chemical products in their homes and gardens, and instead are seeking more environmentally friendly solutions.” Brief, p. 8. However, as noted above, we must make our determination based on the goods as identified and such identification may not be limited by extrinsic evidence. In re Bercut-Vandervoort & Co., 229 USPQ 763, 765 (TTAB 1986) (case must be decided based on the marks as applied to the goods identified in the application and the registration, rather than on “what extrinsic evidence shows those goods to be.”) Even if we were to conclude that registrant’s hair-based fertilizer is by its very nature targeted to consumers strictly looking for organic alternatives in enriching their soil, applicant’s identification is sufficiently broad so as to include soil amendments and conditioners that are also being marketed to the same consumers. In other words, applicant’s goods may Serial No. 77956966 6 also be comprised of purely organic (non-chemical) nutrients and thus sought after by the same gardeners, i.e., those interested in “environmentally friendly solutions.” In sum, we find that the goods are legally identical in that applicant’s “soil amendments; soil conditioners” encompass the goods in the registration, namely, “hair used as fertilizer.” At the very least, they are closely related. The du Pont factor regarding the similarity of the goods weighs strongly in favor of finding a likelihood of confusion. We now consider the similarity and dissimilarity between the marks. Our focus is on whether the marks are similar in sound, appearance, meaning, and commercial impression. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). Here, the marks GROW SMART and SMARTGROW comprise the same two terms. Applicant’s mark is merely the product of reversing the two terms and adding a space. Thus the marks will appear and sound similar. The reverse order of terms does little to distinguish them in view of the descriptiveness of the term GROW and we find little, if any, change in connotation. Even accepting applicant’s Serial No. 77956966 7 proffered meanings created by the two marks, they are extremely similar. That is, applicant argues that “SMARTGROW for fertilizers has the connotation that the user’s plants will grow vigorously and quickly. ...GROW SMART has the connotation that the product user’s plants will grow a considerable amount.” Brief, p. 7. We see little difference whether one understands one mark as suggesting that the goods generate “vigorous and quick” growth versus “considerable” growth in light of the fact that “vigorous,” “quick,” and “considerable” have similar connotations as used in this context and the same two terms are being used on potentially identical goods. In view of the foregoing, we find that the marks, when considered as a whole, are similar in appearance, meaning, sound and commercial impression, and we resolve this du Pont factor against applicant. Finally, we address applicant’s argument that the registered mark SMARTGROW, used on fertilizers, is a “weak mark” and “should not be given the breadth of protection of an arbitrary or fanciful mark.” Brief, p. 4. We have carefully considered the evidence in this regard and do not disagree with the underlying bases for applicant’s contention, namely, that the term GROW is descriptive and that SMART may be viewed as suggestively weak in connection Serial No. 77956966 8 with the goods. However, we disagree with the conclusion that the combination of the two terms, GROW and SMART, renders registrant’s mark so weak that applicant can adopt those same terms, albeit in reverse order, and avoid a likelihood of confusion when these marks will be used on very closely related, and potentially identical, goods. Long-standing precedent makes it clear that even weak marks are entitled to protection. The description of marks as “weak” or “strong,” and references to the “breadth of protection” to be given a mark, have served as a convenient type of shorthand in the literature of opinions concerned with likelihood of confusion. ... Such expressions, however, should not obfuscate the basic issue. Confusion is confusion. The likelihood thereof is to be avoided, as much between “weak” marks as between “strong” marks, or as between a “weak” and a “strong” mark. King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974). In conclusion, upon review of the entire record and all relevant likelihood of confusion factors, we conclude that when potential purchasers of applicant’s and registrant’s goods encounter the marks GROW SMART and SMARTGROW, respectively, for legally identical goods, there is a likelihood of confusion as to the sources of these goods. Serial No. 77956966 9 Decision: The refusal to register under Section 2(d) of the Trademark Act is affirmed.