Gardner Resources, Inc.

Trademark Trial and Appeal Board

Nov 23, 1999

No. 75198089 (T.T.A.B. Nov. 23, 1999)

Hearing:
May 18, 1999
Paper No. 10
CEW
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB NOV. 23, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
___________
In re Gardner Resources, Inc.
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Serial No. 75/198,089
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Douglas J. Katich of Katich, Werse & Petillo for applicant.
Michael Moore, Trademark Examining Attorney, Law Office 104
(Sidney Moskowitz, Managing Attorney).
____________
Before Seeherman, Walters and Chapman, Administrative
Trademark Judges.
Opinion by Walters, Administrative Trademark Judge:
Gardner Resources, Inc. has filed a trademark
application to register the mark BLAIR’S DEATH for “hot
sauce.”1
The Trademark Examining Attorney has finally refused
registration under Section 2(d) of the Trademark Act, 15
U.S.C. 1052(d), on the ground that applicant’s mark so

1 Serial No. 75/198,089, in International Class 30, filed November 14,
1996, based on use in commerce, alleging a date of first use and first
use in commerce as of January 1, 1994.
Serial No. 75/198,089
2
resembles the mark shown below, previously registered on
the Supplemental Register for “food flavoring extracts and
fruit flavorings used for food purposes; pie filling mix
comprised principally of cornstarch, sugar and egg yolk,
table syrup flavoring, and spices,”2 that, if used on or in
connection with applicant’s goods, it would be likely to
cause confusion or mistake or to deceive.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs and an oral hearing
was held. We reverse the refusal to register.
Our determination 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 likelihood of
confusion issue. See, In re E. I. duPont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In the
analysis of likelihood of confusion in this case, two key
considerations are the similarities or dissimilarities
between the marks and the similarities or dissimilarities

2 Registration No. 574,107, in International Class 30, issued May 5,
1953, and renewed for a second time for a term of ten years from May 5,
1993, currently owned by Tri-Tech Laboratories, Inc.
Serial No. 75/198,089
3
between the goods. Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
Considering, first, the marks, the Examining Attorney
argues that the BLAIR’S portion of applicant’s mark is
identical to registrant’s mark and it is the dominant
portion of applicant’s mark; that, in both marks, BLAIR
connotes a person’s name; that there is no evidence that
BLAIR is a weak mark; and that the DEATH portion of
applicant’s mark is “suggestive of the fiery nature of the
applicant’s hot sauce.”
Applicant contends that BLAIR’S DEATH identifies “the
given name of the hot sauce’s creator and, allegorically,
[describes] the experience of digesting the hot sauce”; and
that applicant has a family of hot sauce and hot spice
products identified by marks that incorporate the term
DEATH, e.g., AFTER DEATH hot sauce, DEATH RAIN, hot spice,
and SUDDEN DEATH hot sauce.3 Applicant contends, further,
that, while its mark shares the word BLAIR in common with
the cited mark, BLAIR is “relatively weak and does not have
inherent or acquired distinctiveness; that the word DEATH
is the dominant portion of applicant’s mark; and that the

3 Applicant has not established that it has a family of DEATH marks,
although such a finding would not entitle applicant to a registration
of another “DEATH” mark if such mark were likely to cause confusion
with another’s registered mark. See, Baroid Drilling Fluids, Inc. v.
Sun Drilling Products, 24 USPQ2d 1048 (TTAB 1992).
Serial No. 75/198,089
4
connotations and overall commercial impressions of the
marks are substantially different, noting the possessive
form of BLAIR in BLAIR’S DEATH.
In considering the marks, the question is whether
applicant’s mark and the registered mark, when viewed in
their entireties, are similar in terms of appearance,
sound, connotation and commercial impression. In this
case, the registered mark, BLAIR in a stylized script, is
on the Supplemental Register and, thus, at least at the
time of registration, BLAIR was apparently considered
primarily merely a surname. In the absence of evidence to
the contrary, we find the registered mark to be a weak
mark. In applicant’s mark, BLAIR’S DEATH, the word BLAIR
can be perceived as either a given name4 or a surname; and
BLAIR appears in the possessive form in reference to the
word DEATH. We agree with applicant to the extent that the
word DEATH in applicant’s mark is significant and creates,
in combination with BLAIR’S, a connotation and commercial
impression that is distinctly different from the stylized
registered mark, BLAIR.
Regarding the goods, the Examining Attorney contends
that applicant’s goods are closely related to the goods

4 We take judicial notice of the definition in the Random House
Dictionary of the English Language, unabridged (2d ed. 1987), of Blair
as “n. a male or female given name.”
Serial No. 75/198,089
5
identified in the cited registration. In particular, he
argues that “hot sauce is typically used to flavor food and
is derived from pepper extracts,” and that one of the items
in the registration is food flavoring extracts.
The Examining Attorney also notes that neither
applicant’s nor registrant’s identification of goods
contains limitations and, therefore, the goods of applicant
and registrant are presumed to travel in the normal
channels of trade and to the usual consumers for goods of
the types described.
Applicant contends, on the other hand, that the
product identified herein “is a highly specialized gourmet
food product, which is sold in specialty shops dedicated to
the sale of hot sauces and related hot pepper products
[and] sold exclusively through such specialty outlets and
through direct sales to customers via the Internet.”
Applicant argues that the products are substantially
different because registrant’s products are in the “baking”
category of foods, whereas applicant’s product is a gourmet
condiment.
While applicant characterizes its product as a
“gourmet condiment” and identifies specific trade channels,
the identification of goods is not so limited. Thus, as
the Examining Attorney correctly stated, we must presume
Serial No. 75/198,089
6
that the goods of applicant encompass all types of hot
sauce and are sold in all of the normal channels of trade
to all of the usual purchasers for such goods. See
Canadian Imperial Bank v. Wells Fargo, 811 F.2d 1490, 1
USPQ2d 1813 (Fed. Cir. 1987). Nor does the fact that its
product is a “condiment” as opposed to a “baking product”
necessarily distinguish applicant’s goods from those of
registrant.
In support of his position, the Examining Attorney
submitted copies of third-party registrations of marks
registered for hot sauces and a variety of other products.
Of the seven third-party registrations in the record, at
least three registrations are for marks that appear to be
store brands identifying a broad range of food items. As
such these registrations are not indicative of any
relationships among the many listed goods. Of the
remaining four registrations, two are owned by the same
party and include hot sauce, mixes for bakery goods and
food additives used for flavoring; one includes hot sauce
and “extracts effervescent”; and another includes hot sauce
and extracts for food purposes. While apparently similar
to registrant’s recited “food flavoring extracts,” it is
not entirely clear the extent to which “additives” and
“extracts effervescent” are the same as or related to
Serial No. 75/198,089
7
registrant’s goods. At most, these registrations provide
some, although not strong, evidence that consumers might
believe that goods of the type involved herein come from
the same source.
In conclusion, we find that in view of the substantial
differences in the commercial impressions of applicant’s
mark, BLAIR’S DEATH, and registrant’s stylized mark, BLAIR,
and the tenuous relationship between the respective goods,
the contemporaneous use of applicant’s and registrant’s
marks on the goods involved in this case is not likely to
cause confusion as to the source or sponsorship of such
goods.
Decision: The refusal under Section 2(d) of the Act
is reversed.
E. J. Seeherman
C. E. Walters
B. A. Chapman
Administrative Trademark Judges,
Trademark Trial and Appeal Board