Compass Coffee, LLC

Trademark Trial and Appeal BoardApr 1, 2019

EX (T.T.A.B. Apr. 1, 2019)

This Opinion is not a Precedent of the TTAB Mailed: April 1, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Compass Coffee, LLC _____ Serial No. 87419816 _____ Rebecca Liebowitz of Venable LLP, for Compass Coffee, LLC. Jeanine Gagliardi, Trademark Examining Attorney, Law Office 120, David Miller, Managing Attorney. _____ Before Bergsman, Ritchie, and Goodman, Administrative Trademark Judges. Opinion by Ritchie, Administrative Trademark Judge: Compass Coffee, LLC (“Applicant”) seeks registration on the Principal Register of the mark REAL GOOD COFFEE, in stylized form, as shown below, for “Coffee,” in International Class 30.1 1 Serial No. 87419816, filed on April 21, 2017, based upon Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), alleging dates of first use and use in commerce on September 21, 2014. The mark includes the following description: The mark consists of the words "REAL GOOD COFFEE" in all orange. The color orange is claimed as a feature of the mark. Serial No. 87419816 - 2 - The Examining Attorney refused registration of Applicant’s applied-for mark under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on two prior registrations owned by two different registrants, and both registered on the Supplemental Register: 1. REAL GOOD COFFEE, in standard character form, also for “Coffee,” in International Class 30, as well as for “Coffee cups, tea cups and mugs,” in International Class 21 (the ‘755 registration);2 and 2. REAL GOOD COFFEE (stylized) shown below 2 Registration No. 3568755, registered January 27, 2009, and disclaiming the exclusive right to use the term “COFFEE” apart from the mark as shown. Renewed. Serial No. 87419816 - 3 - for “Coffee substitutes; artificial coffee; tea; coffee capsules containing coffee for brewing; coffee pods; ground coffee beans; roasted coffee beans, in International Class 30” (the ‘573 registration)3 The Examining Attorney also refused registration on the ground that Applicant’s applied-for mark is merely descriptive of the identified “coffee” pursuant to Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), and that Applicant’s voluntary disclaimer of all of the wording in the applied-for mark is not acceptable to overcome this refusal. When the refusals were made final, Applicant filed a request for reconsideration and an appeal. When the request for reconsideration was denied, the appeal was resumed. The appeal is fully briefed. As discussed herein, we affirm the Section 2(d) refusal to register based on the ‘755 registration, and for that reason do not find it necessary to address the Section 2(e)(1) refusal. I. Likelihood of Confusion Our determination under Section 2(d) of the Trademark Act is based on an analysis of the probative facts in evidence that are relevant to the factors bearing on a likelihood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973); see also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin 3 Registration No. 5056573, registered October 4, 2016, and disclaiming the exclusive right to use the term “COFFEE CO” apart from the mark as shown. The registration contains the following description of the mark: The mark consists of the words “REAL GOOD” in an arch on top of the words “COFFEE CO.” Color is not claimed as a feature of the mark. Serial No. 87419816 - 4 - Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In considering the evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). “Not all of the [du Pont] factors are relevant to every case, and only factors of significance to the particular mark need be considered.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed. Cir. 2012) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir 2010)). We find the mark in the ‘755 registration (REAL GOOD COFFEE (in standard character form for “coffee”), to be the most relevant for our du Pont analysis, and we proceed accordingly. Since this is the most relevant registration, if we find a likelihood of confusion, we need not find it as to the ‘573 registration as well. On the other hand, if we do not reach that conclusion, we would not find it as to the ‘573 registration either. See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). A. The Goods, Trade Channels and Purchasers We consider first the similarities or dissimilarities between the respective goods as identified in the application and the cited registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. Serial No. 87419816 - 5 - 2014) (goods as identified in involved application and cited registration compared). Both the application and the ‘755 registration identify “coffee.” Applicant argues that the goods are actually different because they are “of a different character and quality.”4 In particular, Applicant contends that it “offers premium coffee blends, espressos and single-origin coffee products” which retail “at about $1.50-$1.58 per ounce” while “[t]he registrant of the 3568755 registration offers only four varieties of whole bean coffee and retails for about $0.85 per ounce.”5 It is axiomatic that the restrictions asserted by Applicant are not listed in either its application or in the ‘755 registration, which both list, simply, “coffee.” See Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application regardless of what the record may reveal as to the particular nature of an applicant’s goods, the particular channels of trade or the class of purchasers to which the sales of goods are directed.” (citations omitted)). The goods are identical. As for the channels of trade, when as here, the respective identifications of goods are identical, without restrictions as to nature, type, channels of trade, or classes of purchasers, the identified goods are presumed to travel in the same channels of trade to the same class of purchasers. In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); (“[A]bsent restrictions in the application and registration, 4 7 TTABVUE 12. 5 7 TTABVUE 12. Serial No. 87419816 - 6 - goods and services are presumed to travel in the same channels of trade to the same class of purchasers.”). Thus, without regard to Applicant’s argument and evidence of marketplace use, we must presume the trade channels and classes of purchasers are the same for both the coffee sold by Applicant and the coffee sold by the registrant of the ‘755 registration. We find that these factors weigh heavily in favor of finding a likelihood of confusion. B. Strength of the Cited Mark Applicant argues that both of the cited marks are “weak” marks that “coexist on the Supplemental Register meaning neither registrant claims exclusive rights to its marks.”6 Applicant further argues that “the wording REAL GOOD COFFEE is so highly descriptive it is incapable of being source identifying.”7 While the degree of descriptiveness of the cited mark may influence whether or not confusion is likely, it is well recognized that even weak marks are entitled to protection against a mark that is substantially similar, or even identical, in sight, sound, and commercial impression and used on identical goods, as here. See In re Clorox Co., 578 F.2d 305, 198 USPQ 337, 341 (CCPA 1978) (affirming Section 2(d) refusal of mark on Principal Register based on cited registration on Supplemental Register). 6 7 TTABVUE 5. 7 7 TTABVUE 6. Serial No. 87419816 - 7 - Applicant also submitted evidence of two websites that include similar wording in their advertising of coffee, REAL GOOD COFFEE FOR THE PEOPLE, from Messenger Coffee Co., and REAL.GOOD.COFFEE.DINER MUG, from St. Johns Coffee Roasters, as well as a third company, Just Real Good Coffee, used as a trade name for the sale of coffee.8 It is not clear from the evidence presented whether Messenger Coffee Co. is using REAL GOOD COFFEE FOR THE PEOPLE in a trademark or a descriptive manner for its coffee. Similarly, it is not clear whether St. Johns Coffee Roasters is using “REAL.GOOD.COFFEE” as a trademark or as a description of its diner mugs. Finally, it is not clear whether coffee sold under the trade name JUST REAL GOOD COFFEE is sold under that mark.9 Applicant also submitted a copy of a third-party registration for TINCAN REAL. GOOD. COFFEE, and design for “coffee,” registered on the Principal Register on May 30, 2017 (Registration No. 5211597), and disclaiming the exclusive right to use the term “REAL GOOD COFFEE” apart from the mark as shown. Finally, Applicant submitted copies of eight registrations from six different third parties with the term “REAL GOOD” or “REAL (REEL)/GOOD” for various food items. 10 All of the registrations either contain a disclaimer of this wording, or are registered under Section 2(f) with a claim of acquired distinctiveness thereto, or are registered on the Supplemental Register. None contain the exact wording “REAL GOOD COFFEE,” as 8 Attached to December 21, 2017 Response to Office Action, at 8-12. 9 Attached to December 21, 2017 Response to Office Action, at 6. 10 Attached to July 2, 2018 Request for Reconsideration, at 27-34. Applicant also submitted copies of several applications, to which we give no consideration. Serial No. 87419816 - 8 - registered in standard character form in the ‘755 registration, and sought in stylized form by Applicant. Overall, while the mark in the ‘755 registration is weak and registered on the Supplemental Register, we do not find that the mark, which consists solely of the term “REAL GOOD COFFEE” is so weak as to allow registration by Applicant of the identical wording in stylized form for identical goods. C. The Marks We next compare the marks in their entireties for similarities and dissimilarities in appearance, sound, connotation and commercial impression. Palm Bay Imps., 73 USPQ2d at 1692. 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 their overall commercial impression that confusion as to the source of the goods offered under the respective marks is likely to result. Coach Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721. Under actual marketing conditions, consumers do not necessarily have the luxury of making side-by-side comparisons between marks, and must rely upon their imperfect recollections. Dassler KG v. Roller Derby Skate Corp., 206 USPQ 255, 259 (TTAB 1980). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. In re Assoc. of the U.S. Army, 85 USPQ2d 1264, 1268 (TTAB 2007); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Here, the average purchaser includes any consumer of coffee. Serial No. 87419816 - 9 - The mark in the ‘755 registration consists solely of the term “REAL GOOD COFFEE” in standard character form. Applicant’s mark is a stylized version of the identical wording, . Since the mark in the ‘755 registration is registered in standard character form, there is no specific limitation as to the display of the size, font, or color of the wording “REAL GOOD COFFEE.” See Viterra, 101 USPQ2d at 1910-11. As used on the identically identified “coffee,” both marks have the same connotation and commercial impression of offering coffee that is really good, or perhaps is both “real” and “good.” The marks are therefore effectively identical in sight, sound, connotation, and commercial impression. Taking into account that the ‘755 registration is registered on the Supplemental Register, and considering the marks as a whole, we note nevertheless that the marks use identical wording on identical goods. Where, as here, the marks appear on goods that are identical, the degree of similarity between the marks necessary to support a finding of likely confusion declines. Bridgestone Ams. Tire Operations LLC v. Fed. Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992)., The first du Pont factor also favors finding a likelihood of confusion. Serial No. 87419816 - 10 - D. Conditions of Sale Although Applicant does not specifically refer to the sophistication and degree of purchaser care likely to be exercised by the relevant consumers, it does refer to price points for the coffee sold both by Applicant and by the registrant of the ‘755 registration. However, we cannot resort to extrinsic evidence to restrict the prices of Applicant’s or Registrant’s goods or to distinguish the goods. See In re Bercut- Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986) (evidence that relevant goods are expensive wines sold to discriminating purchasers must be disregarded given the absence of any such restrictions in the application or registration). Also, we must consider the degree of care that would be exercised by the least sophisticated consumers, which here includes ordinary consumers of coffee. See Stone Lion Capital 110 USPQ2d at 1163 (affirming that TTAB properly considered all potential purchasers for recited services, including both sophisticated and unsophisticated investors, since precedent requires consumer care for likelihood-of-confusion decision be based “on the least sophisticated potential purchasers”). We find that despite Applicant’s arguments and evidence that coffee may be offered at varying prices, as a basic and common beverage. Coffee may also be offered at low costs and purchased on impulse. This factor also weighs in favor of a likelihood of confusion. II. Conclusion 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 identical, and presume that Serial No. 87419816 - 11 - they would travel through the same channels of trade to some of the same general consumers, who may not be expected to exercise appreciable sophistication or care in their purchases, and may instead purchase coffee on impulse. We further find that the marks as a whole are highly similar and effectively identical in sight, sound, connotation, and commercial impression. Accordingly, despite the weakness of the cited mark, we find a likelihood of confusion between Applicant’s applied-for mark , and the mark REAL GOOD COFFEE, in the ‘755 registration, both for coffee.11 Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed as to Registration No. 3568755. 11 As stated supra, in light of our finding of likelihood of confusion, we need not discuss the alternative 2(e)(1) refusal. See Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) (2018) § 1217, and cases cited therein.