Dr Pepper/ Seven Up, Inc.v.Krush Global Limited

Trademark Trial and Appeal Board

Sep 13, 2010

No. 92048446 (T.T.A.B. Sep. 13, 2010)

Mailed: September 13, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Dr Pepper/Seven Up, Inc.
v.
Krush Global Limited
_____

Opposition No. 91180742; and
Cancellation No. 920484461

_____

Laura Popp-Rosenberg of Fross Zelnick Lehrman & Zissu, PC
for Dr Pepper/Seven Up, Inc.

William C. Wright of Epstein Drangle Bazerman & James, LLP
for Krush Global Ltd.
______

Before Holtzman, Cataldo and Bergsman,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Opposition No. 91180742
Defendant seeks to register the following mark
for “restaurant, catering, snack bar and café services;
provision of prepared food; food and drink preparation and
presentation services; bar services; catering services for
the provision of food and drink; preparation of food stuffs

1 These proceedings were consolidated by a Board order issued on
January 22, 2008.
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Opposition No. 91180742 and Cancellation No. 92048446
2
or meals for consumption off the premises; sandwich and
salad bar services; wine bar services” in Class 43.2

As grounds for opposition, plaintiff has alleged that
defendant’s mark, when used in connection with the recited
services, so resembles plaintiff’s previously used and
registered marks as to be likely to cause confusion, mistake
or to deceive. Plaintiff pleaded ownership of the following
marks:3 CRUSH, in typed or standard characters, for “non-
alcoholic, maltless beverages and concentrates and compounds
for making same”;4 for “shorts, visors, jackets, caps”;5 for

2 Application Serial No. 79033050, filed on October 10, 2006 as a
request for extension of protection pursuant to Trademark Act
§66(a). After commencement of these proceedings, defendant
deleted goods previously recited in Classes 29 and 32 without the
consent of plaintiff. As a result, the Board entered judgment
against defendant as to those goods.
3 In addition, opposer pleaded ownership of Registration No.
0683361 for the mark ORANGE CRUSH, issued on August 11, 1959, for
“non-alcoholic, maltless orange-flavored beverages and
concentrates and compounds for making same.” This registration
was subsequently canceled under Section 8/expired under Section 9
on March 14, 2010.
4 Registration No. 0187791, issued on August 12, 1924, claiming a
date of first use anywhere and a date of first use in commerce of
1915. Fourth renewal.
5 Registration No. 1424931, issued on January 13, 1987, claiming
a date of first use anywhere and a date of first use in commerce
of January 1, 1985. First renewal.
Opposition No. 91180742 and Cancellation No. 92048446
3
“soft candies”;6 and for “confectionery, namely candy”;7 the
mark shown below for “cosmetic products, namely lip balm and
lip gloss;”8

and the mark shown below for “soft drinks and concentrates
for making the same.”9

For each pleaded registration, plaintiff attached to its
notice of opposition a printout of information from the
electronic database records of the USPTO showing the current
status and title of the registration. Accordingly, such
registrations are received into evidence and are made part
of the record for all purposes of this proceeding.
Trademark Rule 2.122(d)(1).

6 Registration No. 2536979, issued on February 5, 2002, claiming
a date of first use anywhere and a date of first use in commerce
of September 1999. Trademark Act §8 affidavit accepted, §15
affidavit acknowledged.
7 Registration No. 2895772, issued on October 19, 2004, claiming
a date of first use anywhere and a date of first use in commerce
of October 31, 1999.
8 Registration No. 3209282, issued on February 13, 2007, claiming
a date of first use anywhere and a date of first use in commerce
of August 10, 1981.
9 Registration No. 2418265, issued on January 2, 2001, claiming a
date of first use anywhere and a date of first use in commerce of
June 1, 1999. Trademark Act §8 affidavit accepted, §15 affidavit
acknowledged.
Opposition No. 91180742 and Cancellation No. 92048446
4
In its answer, defendant denied the salient allegations
of the notice of opposition.
Cancellation No. 92048446
Defendant also is the owner of the mark CRUSSH,
registered in standard characters on the Principal Register
for the same Class 43 services as listed above in the
opposed extension application.10
As grounds for the petition to cancel, plaintiff
alleged priority of use and likelihood of confusion.
Plaintiff alleged ownership of the same registered marks
pleaded in its notice of opposition, supra, and listed
above. Plaintiff attached to its petition to cancel a
printout of information from the USPTO’s electronic database
records showing the current status and title of each
registration. Each registration is valid and subsisting and
is owned by plaintiff. The registrations are received into
evidence and are part of the record for all purposes of this
proceeding. Trademark Rule 2.122(d)(1).
In its answer, defendant admitted that it has not used
the mark in the United States. Defendant otherwise denied
the salient allegations of the petition to cancel.

10 Registration No. 3275548, issued on August 7, 2007 pursuant to
Trademark Act §66(a).

Opposition No. 91180742 and Cancellation No. 92048446
5
Standing and Priority
In an order issued on February 12, 2009, the Board
granted plaintiff’s motion for summary judgment in part as
to its standing and priority in both of these consolidated
proceedings. Accordingly, the only issue remaining for
decision herein is plaintiff’s pleaded ground of likelihood
of confusion.
Stipulations of the Parties
The parties herein stipulated that documents produced
in discovery shall be deemed authentic. The parties further
stipulated to submission of testimony by declaration,
subject to the opposing party’s right to conduct oral cross-
examination; and that certain cross-examination also would
be submitted by declaration.
Evidentiary Objections
Plaintiff filed a motion to strike Exhibits 1, 2, 9 and
10 of defendant’s First and Supplemental Trial Declarations
of Mr. William C. Wright (by which declarations defendant
seeks to introduce identical exhibits) for failure to
properly authenticate the exhibits; Exhibits DX003 – DX013
of defendant’s notice of reliance (which also are identical
to Exhibits 1-10 of the First and Supplemental Trial
Declarations of William C. Wright) for failure to
authenticate and indicate the relevance thereof; and
Exhibits 3, 4, 6, 7 and 8 of defendant’s Trial Declaration
Opposition No. 91180742 and Cancellation No. 92048446
6
of Mr. James Learmond for failure to authenticate. In
addition, plaintiff moves to strike that portion of
defendant’s notice of reliance that asserts defendant’s
reliance upon “All documents produced by Opposer/Petitioner
[plaintiff] in this proceeding number DPSU 000001 through
DPSU 002324”11 because defendant failed to introduce these
documents into the record herein.
First, we agree with plaintiff that any documents
produced in discovery by plaintiff and “relied upon” by
defendant but not introduced during testimony have no
probative value for the obvious reason that the Board is
thus deprived of an opportunity to examine them. It was
incumbent upon defendant to timely introduce any documents
sought to be relied upon in order for the Board to consider
them in our determination herein. Accordingly, we will only
consider documents of record herein, and defendant’s offer
in its response to plaintiff’s motion to strike to make
additional documents of record after the close of its
testimony period is denied.
Turning to defendant’s notice of reliance, in Safer,
Inc. v. OMS Investments, Inc., 94 USPQ2d 1031 (TTAB 2010),
the Board changed its practice regarding Internet evidence,
holding that a document obtained from the Internet may be
admitted into evidence pursuant to a notice of reliance in

11 Defendant’s Notice of Reliance, para. 12.
Opposition No. 91180742 and Cancellation No. 92048446
7
the same manner as a printed publication in general
circulation in accordance with Trademark Rule 2.122(e),
provided as follows: that the document obtained from the
Internet is publicly available, that is, the propounding
party identifies the document’s date of publication or the
date it was accessed and printed, and its source (URL); and
that the propounding party indicates in the notice of
reliance “generally the relevance of the material being
offered.” In this case, defendant indicates the URL and
date the documents in question were accessed and printed.
However, defendant fails to indicate the relevance thereof.
We find, therefore, that the documents comprising these
exhibits have not properly been made of record by
defendant’s notice of reliance.
With regard to the exhibits sought to be stricken from
the first and supplemental Wright Declarations and the
Learmond Declaration, we note that none of the documents in
question were authenticated by the declarants. We find,
therefore, that the documents comprising these exhibits have
not properly been made of record by testimonial declaration.
We note nonetheless that none of the documents sought
to be excluded from defendant’s trial declarations and
notice of reliance are outcome determinative of this case.
As such, regardless of whether we strike or consider them in
our determination herein, the result would be the same. In
Opposition No. 91180742 and Cancellation No. 92048446
8
view thereof, we will exercise our discretion to consider
the documents comprising these exhibits for such probative
value as they may have.
In addition, plaintiff filed a statement of objections
to defendant’s evidence, in which plaintiff asserts numerous
substantive objections to defendant’s trial declarations and
evidence submitted therewith, along with its notices of
reliance, on the grounds of relevance, hearsay, lack of
foundation, lack of personal knowledge, and best evidence
rule. Again, however, we note that none of the testimony
and/or exhibits sought to be excluded is outcome
determinative. Given this fact, coupled with the number of
objections (50), we see no compelling reason to discuss the
objections in a detailed fashion. Suffice it to say, we
have kept in mind the various objections, and we have
accorded whatever probative value the subject testimony and
exhibits merit.
The Record
By operation of Trademark Rule 2.122, 37 C.F.R. §2.122,
the record in this case includes the pleadings and the files
of the involved application and registration. In addition,
during its assigned testimony period, plaintiff submitted
the testimony and rebuttal declarations, with exhibits, of
Andrew D. Springate, its Senior Vice-President of Brand
Marketing of Dr Pepper Snapple Group (plaintiff’s parent);
Opposition No. 91180742 and Cancellation No. 92048446
9
and Mario Ortiz, a paralegal from the law firm of
defendant’s counsel of record. In addition, plaintiff
submitted notices of reliance upon official records,
defendant’s discovery responses, and printed publications.
During its assigned testimony period, defendant
submitted the testimony depositions, with exhibits, of James
Learmond, founder, Chairman and Director of defendant; and
William C. Wright, an attorney from the law firm of
defendant’s counsel. In addition, defendant submitted
notices of reliance upon printed publications, Internet
materials, official records and plaintiff’s discovery
responses.
Plaintiff and defendant filed main briefs on the case,
and plaintiff filed a reply brief. We are mindful that both
parties submitted testimony and evidence as well as briefs
marked as containing confidential information. We will
therefore endeavor to refer to such information only in
general terms.
Likelihood of Confusion
Our likelihood of confusion determination under Section
2(d) 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 Palm
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee
Opposition No. 91180742 and Cancellation No. 92048446
10
En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
As noted above, plaintiff has pleaded and made of
record copies of numerous registrations for the mark CRUSH
displayed in typed or standard characters as well as
stylized presentations. In our analysis, we will
concentrate our discussion of the issue of likelihood of
confusion on the registration of plaintiff which identifies
goods most similar to the services of defendant, namely,
Registration No. 0187791 for the mark CRUSH, in typed or
standard characters, for “non-alcoholic, maltless beverages
and concentrates and compounds for making same.”
Defendant’s Marks and Plaintiff’s CRUSH Mark
We turn then to the first du Pont factor, i.e., whether
defendant’s marks and plaintiff’s CRUSH mark are similar or
dissimilar when viewed in their entireties in terms of
appearance, sound, connotation and overall commercial
impression. See Palm Bay Imports, Inc. v. Veuve Clicquot,
supra. The test, under the first du Pont factor, 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
Opposition No. 91180742 and Cancellation No. 92048446
11
impression that confusion as to the source of the goods
offered under the respective marks is likely to result.
Strength of Plaintiff’s CRUSH Mark
We begin our determination by evaluating the strength
of plaintiff’s CRUSH mark in its Registration No. 0187791.
This mark registered on August 12, 1924 on the Principal
Register, carries with it a presumption of inherent
distinctiveness, and has since become incontestable under
Trademark Act §15. In addition, plaintiff has introduced
confidential testimony and evidence indicating substantial
sales, extensive advertisements, and indicia of both
consumer awareness and plaintiff’s market share of soft
drinks under the CRUSH mark. In short, the record supports
a finding that plaintiff’s CRUSH mark has achieved a degree
of recognition and strength in the market and that the mark
is therefore entitled to a broader scope of protection than
might be accorded a less distinctive mark. Further, while
we recognize that defendant has introduced evidence that
“crush” may have a number of meanings in different contexts,
and that certain third parties may use the term “crush” as
applied to a number of different good and services, such
evidence does not serve to diminish the scope of protection
to be accorded plaintiff’s CRUSH mark.
Defendant’s Mark in Registration No. 327548
Opposition No. 91180742 and Cancellation No. 92048446
12
We turn then to defendant’s CRUSSH mark in its
Registration No. 3275548. CRUSSH, in standard characters,
is nearly identical in appearance and sound to plaintiff’s
CRUSH mark, in typed or standard characters. Visually, the
marks differ by a single letter, namely, the repeated “S” in
defendant’s CRUSSH mark which, due to its placement, does
little to distinguish it from plaintiff’s CRUSH mark.
Furthermore, because the addition of the letter “S” to
defendant’s mark merely repeats the first “S” there is
little, if any, discernable difference in sound between
CRUSSH and CRUSH. It is settled that there is no correct
pronunciation of a trademark. In re Teradata Corporation,
223 USPQ 361, 362 (TTAB 1984). Moreover, there is no
credible evidence of record to suggest that CRUSSH will be
pronounced differently from CRUSH.
With regard to the connotation or meaning of the marks,
we note that defendant has introduced several definitions of
“crush” in a number of contexts. These include “to extract
or obtain by pressing or squeezing: crush juice from a
grape,”12 and “a substance prepared by or as if by crushing,
especially a fruit drink: orange crush.”13 However, there
is little, if any, evidence of record to suggest that
“crush” has a different connotation as applied to

12 Trial Declaration of James Learmond, Exhibit 3, citing to
Dictionary.com, based upon The American Heritage Dictionary of
the English Language, (4th ed., 2006).
Opposition No. 91180742 and Cancellation No. 92048446
13
plaintiff’s beverages and compounds and concentrates for
making them, on one hand, and defendant’s various
restaurant, bar, and food and drink preparation services on
the other. In other words, to the extent that plaintiff’s
CRUSH mark may connote beverages having a flavor of crushed
fruit, such connotation is not dissimilar from defendant’s
CRUSSH mark which will likely be taken as connoting
restaurant, bar and drink preparation services including
drinks flavored with crushed fruit. Thus, the connotations
of the marks are also similar.
As a result, we find that plaintiff’s CRUSH mark is
highly similar to defendant’s CRUSSH mark in appearance,
sound and connotation, and that overall the marks convey
highly similar commercial impressions.
Defendant’s Mark in Application No. 79033050
Now we turn to our comparison of plaintiff’s CRUSH mark
with defendant’s mark, displayed below,

which consists of the word CRUSSH and an irregularly shaped
background design. As discussed above in connection with
defendant’s CRUSSH mark in standard characters, the word

13 Id.
Opposition No. 91180742 and Cancellation No. 92048446
14
portion of defendant’s CRUSSH and design mark is highly
similar in appearance, sound and connotation to plaintiff’s
CRUSH mark.
Nor do we find that the addition of the amorphous
background design in defendant’s mark is sufficient to
distinguish it from plaintiff’s CRUSH mark. The word
portion of defendant’s CRUSSH and design mark clearly is the
dominant portion thereof. It is a well-established
principle that, in articulating reasons for reaching a
conclusion on the issue of likelihood of confusion, 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. See In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). In this case, the amorphous background does not
significantly add to the overall commercial impression of
defendant’s mark. In addition, when a mark contains both a
word and a design, then the word is normally accorded
greater weight inasmuch it would be used by purchasers to
request the goods or services. In re Appetito Provisions
Co., 3 USPQ2d 1553 (TTAB 1987). For these reasons, we
consider CRUSSH to be the dominant feature of defendant’s
mark.
Opposition No. 91180742 and Cancellation No. 92048446
15
Thus, as discussed above the dominant portion of
defendant’s mark, i.e., CRUSSH, is highly similar to
plaintiff’s CRUSH mark and that, taken as a whole, the
parties’ marks are far more similar than dissimilar in
appearance, sound, and connotation, and convey highly
similar overall commercial impressions.
In view thereof, this du Pont factor favors plaintiff
as to both of defendant’s marks.
The Goods and Services
With respect to the goods and services, it is well
established that the goods or services of the parties need
not be similar or competitive, or even offered through the
same channels of trade, to support a holding of likelihood
of confusion. It is sufficient that the respective goods or
services of the parties are related in some manner, and/or
that the conditions and activities surrounding the marketing
of the goods or services are such that they would or could
be encountered by the same persons under circumstances that
could, because of the similarity of the marks, give rise to
the mistaken belief that they originate from the same
source. See Hilson Research, Inc. v. Society for Human
Resource Management, 27 USPQ2d 1423 (TTAB 1993); and In re
International Telephone & Telegraph Corp., 197 USPQ 910, 911
(TTAB 1978).
Opposition No. 91180742 and Cancellation No. 92048446
16
In this case, the goods in plaintiff’s Registration No.
0187791 are “non-alcoholic, maltless beverages and
concentrates and compounds for making same.” Both
defendant’s involved application and registration recite
“restaurant, catering, snack bar and café services;
provision of prepared food; food and drink preparation and
presentation services; bar services; catering services for
the provision of food and drink; preparation of food stuffs
or meals for consumption off the premises; sandwich and
salad bar services; wine bar services.”
It is further settled that we must consider the goods
as they are identified in plaintiff’s Registration No.
0187791 and the services as they are identified in
defendant’s involved application and registration. 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 [or services] set forth in the
application regardless of what the record may reveal as to
the particular nature of an applicant’s goods [or services],
the particular channels of trade or the class of purchasers
to which the sales of goods [or services] are directed”).
As a result, defendant’s arguments, testimony and evidence
regarding its intended limitation of its services to the
Opposition No. 91180742 and Cancellation No. 92048446
17
provision of fresh food and drinks, made without
preservatives, to health-conscious consumers must fail
because such limitations are not present in its recitations
of services. Rather, in the absence of any such limitations
we must presume that defendant would serve any sort of
beverage at its restaurants, bars or cafes, including non-
alcoholic, maltless beverages of the kind identified in
plaintiff’s Registration No. 0187791.
Nonetheless, because the goods and services here
involve restaurant, bar, and food and drink preparation
services on the one hand and beverage items on the other, we
must also consider that there is no per se rule that
confusion is likely simply because “similar or even
identical marks are used for food products and for
restaurant services.” Jacobs v. International Multifoods
Corporation, 668 F.2d 1234, 212 USPQ 641, 642 (CCPA 1982).
See also In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d
1059, 1064 (Fed. Cir. 2003) (“But the registered mark in
this case is simply for restaurant services in general, and
the Board’s conclusion that restaurant services and beer are
related is based on the fact that a tiny percentage of all
restaurants also serve as a source of beer, which is a very
weak evidentiary basis for a finding of relatedness”). The
Federal Circuit further explained, however, that the outcome
would have been different “if the registrant’s mark had been
Opposition No. 91180742 and Cancellation No. 92048446
18
for a brewpub or for restaurant services and beer. In that
case, the goods and services associated with the two marks
would clearly be related.” Id.
In this case, plaintiff has submitted evidence pointing
to a relationship between its beverages and defendant’s
restaurant, bar and food and drink preparation services.
Specifically, plaintiff has introduced evidence that it is
not uncommon for parties to utilize the same marks for
restaurant services and food and beverage products. The
following examples are illustrative of companies that
provide restaurant and food and beverage store services on
the one hand and also produce food and beverage items for
sale by third-party retailers, such as supermarkets:14 BEN
& JERRY’S; BOB EVANS; BOSTON MARKET; CARVEL; CALIFORNIA
PIZZA KITCHEN; DUNKIN’DONUTS; GODIVA; HAAGEN-DAZS; and
STARBUCKS. Plaintiff submitted further evidence that it
owns the marks STEWART’S and A&W, and that it uses these
marks both for beverages and restaurant services.15 In
addition, plaintiff submitted evidence that defendant’s
plans for expansion of its business includes “Crussh bars in
other big cities, airports and railway stations as well as a
possible venture into bottled smoothies.”16

14 Ortiz Testimony Declaration, paras. 2-15, Exhibits PX105-147.
15 Springate Testimony Declaration, paras. 52-4; Notice of
Reliance, Exhibits PX100-104.
16 Learmond Testimony, Exhibit DP6.
Opposition No. 91180742 and Cancellation No. 92048446
19
Finally, plaintiff submitted numerous use-based
registrations to show that the same entity has registered a
common mark for restaurant services and various beverage
products.17 The following examples are illustrative:
No. 3100296 – “restaurant services” and “fruit and
ice beverage; fruit juice”

No. 3433399 – “restaurant services” and “frozen
fruit beverages, fruit drinks”

No. 3327216 - “restaurant services” and “soft
drinks, smoothies, lemonade and fruit flavored
beverages”

No. 3428843 - “restaurant services, namely,
provision of beverages for dining in and drive-in
services” and “blended drinks, namely, smoothies”

No. 3243072 - “restaurant services” and
“smoothies, fruit drinks and fruit juices,
sparkling water, spring water, flavored waters and
pop”

These registrations suggest, in general, that
beverages, including non-alcoholic beverages, and restaurant
services are related. See In re Infinity Broadcasting Corp.
of Dallas, 60 USPQ2d 1214, 1217-18 (TTAB 2001) (“The
registrations show that entities have registered their marks
for both television and radio broadcasting services.
Although these registrations are not evidence that the marks
shown therein are in use or that the public is familiar with
them, they nevertheless have probative value to the extent
that they serve to suggest that the goods and services

17 Plaintiff’s Notice of Reliance, Exhibits PX1-PX104.
Opposition No. 91180742 and Cancellation No. 92048446
20
listed therein are of a kind which may emanate from a single
source.” See, e.g., In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993); and In re Mucky Duck
Mustard Co. Inc., 6 USPQ2d 1467, 1470 at n. 6 (TTAB 1988)).
Our case law has recognized that the “something more”
requirement of Jacobs includes situations where the specific
food or beverage items of one entity are likely to be sold
in the other’s restaurant. See In re Azteca Restaurant
Enterprises Inc., 50 USPQ2d 1209, 1211 (TTAB 1999) (“The
average consumer, therefore, would be likely to view Mexican
food items and Mexican restaurant services as emanating from
or sponsored by the same source if such goods and services
are sold under the same or substantially similar marks”); In
re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001) (“The
fact that applicant’s restaurant serves the type of goods
(indeed the actual goods) identified in the cited
registration is certainly probative evidence which supports
a finding under the second du Pont factor that applicant’s
services and [registrant’s] goods are related”). In light
of the evidence of record and the above authorities, we find
that defendant’s restaurant, bar and food and drink
preparation services and plaintiff’s non-alcoholic, maltless
beverages are related. Furthermore, patrons of restaurants,
bars and cafes serving food and beverages are likely to
Opposition No. 91180742 and Cancellation No. 92048446
21
overlap with purchasers of non-alcoholic beverages in retail
stores.
In view of the related nature of plaintiff’s goods
under its CRUSH mark and defendant’s services, this du Pont
factor also favors plaintiff.
Channels of Trade
Because we have found that the parties’ goods and
services are related, and because there are no recited
restrictions as to their channels of trade or classes of
purchasers, we must assume that the goods and services are
available in all the normal channels of trade to all the
usual consumers of such goods and services, and that the
purchasers for plaintiff’s goods as well as defendant’s
services would overlap. See Interstate Brands Corp. v.
McKee Foods Corp., 53 USPQ2d 1910 (TTAB 2000). See also
Octocom Systems, Inc. v. Houston Computers Services Inc. 16
USPQ2d at 1787, and Paula Payne Products v. Johnson
Publishing Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973)
(“Trademark cases involving the issue of likelihood of
confusion must be decided on the basis of the respective
descriptions of goods.”). In view of these authorities, we
are not persuaded by defendant’s arguments that seek to
impose trade channel limitations not recited in its services
or plaintiff’s goods. Simply put, we will not read into the
Opposition No. 91180742 and Cancellation No. 92048446
22
parties’ recitations of goods and services limitations that
are not stated therein.
We find that, as a result of the foregoing, this du
Pont factor also favors plaintiff.
Conditions of Sale
The next du Pont factor discussed by the parties is
that of the conditions of sale. Defendant asserts that its
patrons are discerning, health-conscious urban professionals
while consumers of plaintiff’s goods are largely children.18
However, as identified, neither plaintiff’s goods nor
defendant’s services are restricted by age, profession,
taste or other factors. As such, we must presume that the
parties’ respective goods and services are available to all
consumers. Moreover, sophisticated purchasers are not
necessarily knowledgeable in the field of trademarks or
immune from source confusion. See In re Decombe, 9 USPQ2d
1812, 1814-1815 (TTAB 1988). Furthermore, even if some
degree of care were exhibited in making the purchasing
decision, the marks at issue are sufficiently similar such
that even careful purchasers are likely to assume that the
marks identify goods and services emanating from a single
source.
Thus, this du Pont factor also favors plaintiff.

18 Defendant’s brief, p. 25.
Opposition No. 91180742 and Cancellation No. 92048446
23
Bad Faith
Another du Pont factor discussed by the parties is
whether defendant acted in bad faith in seeking and
obtaining registration of its involved marks. We note,
however, that there is little or no evidence in the record
from which we may infer that defendant acted in bad faith in
adopting its marks. Mere knowledge of the existence of
plaintiff’s marks does not, in and of itself, constitute bad
faith. See Action Temporary Services Inc. v. Labor Force
Inc., 870 F.2d 1563, 10 USPQ2d 1307 (Fed. Cir 1989); and Ava
Enterprises, Inc. V. Audio Boss USA, Inc., 77 USPQ2d 1783
(TTAB 2006). Plaintiff simply has not shown that defendant
intentionally sought to trade on plaintiff’s good will in
selecting its marks.
Thus, this du Pont factor is neutral.
Summary
We have carefully considered all of the evidence
pertaining to the relevant du Pont factors, as well as all
of the parties’ arguments with respect thereto, including
any evidence and arguments not specifically discussed in
this opinion.
We conclude that consumers familiar with plaintiff’s
goods under its CRUSH mark in Registration No. 0187791 would
be likely to believe, upon encountering defendant’s involved
CRUSSH and CRUSSH and design marks for its recited services,
Opposition No. 91180742 and Cancellation No. 92048446
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that the parties’ goods and services originate with or are
associated with or sponsored by the same entity. In making
our determination, we have balanced the relevant du Pont
factors. The factors of the similarity between the marks
and the relatedness of the goods and services weigh strongly
in plaintiff’s favor. To the extent that any of defendant’s
points raise a doubt about our conclusion, all doubt on the
issue of likelihood of confusion must be resolved in favor
of the prior user and against the newcomer. See San
Fernando Mfg. Co. v. JFD Electronics Components Corp., 565
F.2d 683, 196 USPQ 1, 2 (CCPA 1977).
DECISION: The opposition to registration of
defendant’s application Serial No. 79033050 is sustained on
the ground of priority and likelihood of confusion, and
registration to defendant is refused; the petition to cancel
defendant’s Registration No. 3275548 is granted, and
defendant’s registration will be cancelled in due course.