Gateway Foods, Inc.

Trademark Trial and Appeal Board

Oct 2, 2012

No. 77930551 (T.T.A.B. Oct. 2, 2012)

Mailed: 10/2/2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Gateway Foods, Inc.
________

Serial No. 77930551
_______

Benjamin Aydindzhyan of Ourfalian & Ourfalian for Gateway Foods,
Inc.

Anne Gustason, Trademark Examining Attorney, Law Office 117 (J.
Brett Golden, Managing Attorney).
_______

Before Quinn, Kuhlke and Bergsman,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Gateway Foods, Inc. filed, on February 8, 2010, an intent-
to-use application to register the mark AL COURA (in standard
characters) for “canned processed olives, olive oil, olive
paste, processed olives, tahini, [and] grape leaves” (in
International Class 29).
The trademark examining attorney refused registration under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the
ground that applicant’s mark, when applied to applicant’s goods,
so resembles the previously registered mark EL KOURA (in
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
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standard characters) for “extra virgin olive oil” (in
International Class 29)1 as to be likely to cause confusion. The
examining attorney also issued a final refusal based on
applicant’s failure to comply with a requirement to furnish an
English translation, if any, of its mark.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
Before turning to the likelihood of confusion refusal, we
turn our attention to the translation requirement. In the first
Office action, the examining attorney required applicant to
submit an English translation of applicant’s mark. In its
response, applicant did not specifically respond to the
requirement for a translation; although applicant pointed to
differences between the marks’ connotations, it did not identify
the meaning of its mark (or the meaning of registrant’s mark).2
In the next Office action, the examining attorney made the
requirement final, in addition to making final the Section 2(d)
refusal. Applicant’s brief is entirely silent on the
translation requirement, and applicant did not make an argument
based on any purported difference between the marks in terms of
meaning. The examining attorney, in her brief, merely noted
applicant’s failure to address the translation requirement.

1 Registration No. 2750041, issued August 12, 2003; Section 8 affidavit
accepted.
2 There is no translation statement in the cited registration.
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An application to register a mark that includes non-English
wording must include an English translation of that wording.
Trademark Rule 2.32(a)(9). See TMEP § 809 (8th ed. 2011). In
response to the examining attorney’s requirement to submit a
translation, applicant was completely silent. So as to be
clear, neither applicant’s response to the first Office action
or the appeal brief even mentions, let alone addresses the
requirement.
In view of applicant’s complete failure to comply with the
requirement for a translation (or alternatively, at a minimum,
to indicate that there is no translation of the involved mark),
this requirement is affirmed.
We now turn to the issue of likelihood of confusion.
Applicant concedes that the marks are “somewhat phonetically
similar” (Brief, p. 5), but goes on to argue that the marks are
spelled differently, thereby resulting in marks that are
dissimilar. Applicant also contends that the goods are
different inasmuch as applicant’s identification includes goods
not listed in the cited registration. Based on these arguments,
applicant asserts that the likelihood of confusion between the
marks is de minimis.
The examining attorney maintains that the marks are
similar, and that the goods overlap to the extent that both
identifications in the application and cited registration
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include “olive oil,” or otherwise are closely related. In
support of the refusal the examining attorney introduced
excerpts of third-party websites.
Our determination of the issue of likelihood of confusion
is based on an analysis of all of the probative facts in
evidence that are relevant to the factors set forth in In re E.
I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). In any likelihood of confusion analysis, however, two
key considerations are the similarities between the marks and
the similarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24 (CCPA 1976).
We first turn to consider the second du Pont factor
regarding the similarity/dissimilarity between the goods. It is
not necessary that the respective goods be competitive, or even
that they move in the same channels of trade to support a
holding of likelihood of confusion. It is sufficient that the
respective goods are related in some manner, and/or that the
conditions and activities surrounding the marketing of the goods
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 originated from the same producer. In re Melville Corp.,
18 USPQ2d 1386 (TTAB 1991). The issue is not whether consumers
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would confuse the goods themselves, but rather whether they
would be confused as to the source of the goods. We recognize
that there is no per se rule requiring a finding of likelihood
of confusion when both types of goods are food items.
Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d
927, 198 USPQ 151 (CCPA 1978).
We make our comparison of the goods, including between the
respective channels of trade and classes of purchasers, based on
the goods as they are identified in the application and the
cited registration. In re Giovanni Food Co., 97 USPQ2d 1990,
1991 (TTAB 2011). Applicant’s identification of goods includes
“olive oil” and registrant’s identification includes “extra
virgin olive oil.” The record shows that extra virgin olive oil
is olive oil derived from the first pressing of unblemished
olives. Applicant’s “olive oil” is worded broadly enough to
encompass “extra virgin olive oil.” Thus, for purposes of our
likelihood of confusion analysis, these goods are legally
identical. In the context of this analysis, it is sufficient if
likelihood of confusion is found with respect to use of the mark
on any item that comes within the identification of goods in the
application and registration. Tuxedo Monopoly, Inc. v. General
Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981);
and Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398
(TTAB 2007).
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Because the goods identified in the application and the
cited registration are in-part identical, we must presume that
the channels of trade and classes of purchasers are the same.
See Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003)
(“Given the in-part identical and in-part related nature of the
parties’ goods, and the lack of any restrictions in the
identifications thereof as to trade channels and purchasers,
these clothing items could be offered and sold to the same
classes of purchasers through the same channels of trade.”); and
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.”). Further, we note that there are no
limitations in either applicant’s or registrant’s identification
of goods. Accordingly, we must presume that the goods, as
identified, are marketed in all normal trade channels for such
goods and to all normal classes of purchasers for such goods.
In re Elbaum, 211 USPQ 639 (TTAB 1981). Thus, given that the
identifications are identical to the extent that both include
olive oil, the goods would move through the same trade channels
(e.g., grocery stores, online retailers, and the like) and would
be purchased by the same classes of purchasers, including
ordinary consumers. Because of the relatively inexpensive
nature of olive oil and the other listed food items, and the
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fact that such staples may be subject to frequent replacement
and impulse purchase, the likelihood of confusion is increased.
See Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894,
1899 (Fed. Cir. 2000) (“When products are relatively low-priced
and subject to impulse buying, the risk of likelihood of
confusion is increased because purchasers of such products are
held to a lesser standard of purchasing care.”).
Lest there be any doubt on this point, the examining
attorney’s Internet evidence shows that online retailers
routinely sell a variety of olive oils, often under the same
mark.
We find that the du Pont factors of in-part identical
goods, presumed identical trade channels and purchasers, and
conditions of sale all weigh heavily in favor of a finding of
likelihood of confusion.
We next direct our attention to the du Pont factor of the
similarity/dissimilarity between the marks. Preliminarily, we
note that the more similar the goods at issue, the less similar
the marks need to be for the Board to find a likelihood of
confusion. Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992). We must
compare the marks in their entireties as to appearance, sound,
connotation and commercial impression to determine the
similarity or dissimilarity between them. Palm Bay Imports,
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Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1960 (Fed. Cir. 2005), quoting In re E. I.
du Pont de Nemours & Co., 177 USPQ at 567. 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 impression that confusion as to the
source of the goods offered under the respective marks is likely
to result. The focus is on the recollection of the average
purchaser, who normally retains a general rather than a specific
impression of trademarks. See Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106 (TTAB 1975).
In this case, applicant’s mark AL COURA and registrant’s
mark EL KOURA are very similar in sound. Although applicant
argues that the marks sound differently, there is no correct
pronunciation of mark, and the two marks, whether carefully or
hurriedly spoken, still sound alike. See In re 1st USA Realty
Professionals Inc., 84 USPQ2d 1581, 1584 (TTAB 2007).
As to appearance, although the marks are spelled
differently, the marks look alike; both include a space, and
differ by only two letters. There is no evidence relating to
the meanings of the marks, and consumers may perceive the marks
as being arbitrary when used on the goods. Given the
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similarities in sound and appearance, the marks engender overall
commercial impressions that are similar.
The similarity between the marks weighs in favor of a
finding of a likelihood of confusion.
In sum, the relevant du Pont factors weigh in favor of
affirming the refusal. Contrary to applicant’s position, the
similarities between the marks and the identity in part between
the goods persuade us that the likelihood of confusion is more
than just de minimis. See In re Shell Oil Co., 992 F.2d 1204,
26 USPQ2d 1688, 1689 (Fed. Cir. 1993). We conclude that
consumers familiar with registrant’s extra virgin olive oil sold
under the mark EL KOURA would be likely to mistakenly believe,
upon encountering applicant’s mark AL COURA for olive oil, that
the goods originated with or are somehow associated with or
sponsored by the same entity.
Decision: The refusal to register is affirmed.