Hygrade Food Products Corp.v.CRB Co.

Trademark Trial and Appeal Board

Aug 4, 1999

No. 91103744 (T.T.A.B. Aug. 4, 1999)

Paper No. 39
PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB AUG. 4, 9
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Hygrade Food Products Corp.
v.
CRB Co.1
_____
Opposition No. 103,744
to application Serial No. 74/626,376
filed on January 27, 1995
_____
J. David Mayberry of Kilpatrick Stockton LLP for Hygrade
Food Products Corp.
Gordon D. Kinder of Renner Otto Boiselle & Sklar for CRB Co.
______
Before Sams, Seeherman and Hairston, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
Hygrade Food Products Corp. has opposed the application
of CRB Co. to register the mark BALLPARK DRAFT (“DRAFT” is
disclaimed) for beer.2 As grounds for opposition, opposer

1 The parties are involved in a civil action (Civil Action 1:99
CV 533) before the U.S. District Court for the Northern District
of Ohio. The civil action has been suspended pending disposition
of this opposition.
2 Application Serial No. 74/626,376 filed January 27, 1995,
asserting a bona fide intention to use the mark in commerce. The
application was subsequently amended to claim first use and first
use in commerce on March 27, 1995.
Opposition No. 103,744
2
alleges that applicant’s mark, when used in connection with
the identified goods, so resembles opposer’s previously
used and registered mark BALL PARK for frankfurters and
other processed food products, as to be likely to cause
confusion. In addition, opposer alleges that registration
of the mark BALLPARK DRAFT by applicant will dilute
opposer’s mark BALL PARK,3 and that applicant has not used
the mark BALLPARK DRAFT in commerce.
Applicant, in its answer, denied the salient
allegations of the notice of opposition.
The record consists of the pleadings; the file of the
involved application; and trial testimony, with related
exhibits, taken by opposer. In addition, opposer submitted
the following materials by way of notice of reliance:
certified status and title copies of opposer’s
registrations;, the discovery deposition of applicant’s
vice-president, Stuart Sheridan; copies of third-party
registrations for marks which cover both frankfurters/hot
dogs and beer; various articles from printed publications;
and applicant’s responses to opposer’s requests for
admissions. Applicant took no testimony and submitted no
other evidence. Only opposer filed a brief on the case.

3 Opposer did not pursue its dilution claim and inasmuch as
dilution is not a ground for opposition, we have given it no
consideration. See Babson Bros. Co. v. Surge Power Corp., 39
USPQ2d 1953 (1996).
Opposition No. 103,744
3
Opposer is in the business of selling frankfurters,
corn dogs, knockwurst, polish sausages, bologna, ham and
bacon. The primary trademark of opposer is BALL PARK.
Opposer advertises the BALL PARK brand on television, radio,
newspapers, magazines and billboards, and at the point of
sale of its products. Michael Jordan is the current
spokesman for the BALL PARK brand and he has promoted the
brand in numerous television and radio advertisements.
Opposer has been a corporate sponsor of many professional
sports teams and was a sponsor of the 1996 Summer Olympics.
Over the past three years alone, opposer spent in excess of
$50 million advertising and promoting the BALL PARK
trademark. In the past ten years, opposer sold more than
$1.2 million pounds of hot dogs. A survey conducted at
opposer’s request shows a total brand awareness of around
95% and an unaided brand awareness of around 50%. Over the
years, opposer has actively policed its BALL PARK trademark.
Applicant operates a brewery in Cleveland, Ohio which
produces a number of craft-style beers sold under various
brand names. In late 1994 or early 1995 applicant chose the
name “Ballpark” as a possible name for a new beer during a
brainstorming session. At the time it adopted this mark,
applicant was aware of opposer’s BALL PARK mark.
Applicant kegs it BALLPARK DRAFT beer and distributes
it to a single customer, Sportservice, a concessionaire
Opposition No. 103,744
4
which is located at Jacob’s Field in Cleveland, Ohio. The
beer is advertised through the use of signs at the ballpark.
Sportservice sells BALLPARK DRAFT beer at Jacob’s Field for
on-site consumption and the beer is not, nor has it ever
been, distributed outside the state of Ohio.
Priority is not in issue because opposer’s pleaded
registrations for frankfurters and other processed food
products have been made of record. King Candy Company v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108
(CCPA 1974).
With respect to the issue of likelihood of confusion,
we have, in making this determination, considered all
factors, as set forth in In re E.I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973), which are
relevant. A detailed discussion of the evidence in this
case is unnecessary, however, since as a result of
applicant’s admissions, no pertinent facts are in dispute.
In this case, applicant failed to respond to opposer’s
requests for admissions and thus, the requests are deemed
admitted. See Fed. R. Civ. P. 36(a).
Turning to the marks, applicant has admitted that the
term “Ballpark” is the dominant element in applicant’s mark;
that the term “Draft” is descriptive; and that the parties’
marks are similar in appearance, sound and meaning,
assessments with which we concur. In addition, applicant
Opposition No. 103,744
5
has admitted that opposer’s BALL PARK mark is famous.
Moreover, the record is sufficient to establish that
opposer’s mark is a famous mark for frankfurters. We note,
in this regard, that where an opposer’s mark is famous, that
fact often weighs heavily in the determination of whether
confusion is likely. Kenner Parker Toys Inc. v. Rose Art
Industries, Inc., 963 F.2d 350, 22 USPQ2d 1453 (Fed. Cir.
1992). Famous or strong marks enjoy a wide latitude of
legal protection. Id.
Turning then to the goods, applicant has admitted that
the goods of the parties are complementary; that they are
advertised and promoted to, and purchased by, the same class
of consumers; and that the goods are purchased on impulse.
Further, opposer submitted over fifty third-party
registrations for marks which cover meat and/or processed
food products and beer. Although such registrations are not
evidence that the marks shown therein are in use or that
consumers are familiar with them, they nonetheless have some
probative value to the extent that they serve to suggest
that the goods listed therein are of a kind which may
emanate from a single source.
In addition, opposer’s evidence shows that at Jacob’s
Field in Cleveland, Ohio, applicant’s BALLPARK DRAFT beer is
sold adjacent to the hot dog stands where opposer’s BALL
PARK frankfurters are sold. It is common knowledge that hot
Opposition No. 103,744
6
dogs and beer are frequently consumed together at such
gatherings as sporting events, picnics and barbecues.
Further, opposer’s witness, Mr. Riley, testified that
opposer has plans to license the BALL PARK trademark for use
on products outside the meat category. Among the items
which opposer has considered are beverages.
We find, therefore, that the parties’ goods are
sufficiently related that ordinary purchasers could
reasonably believe that applicant’s beer sold under the
BALLPARK DRAFT mark emanates from or is sponsored by the
same source which markets frankfurters under the famous BALL
PARK mark. This is especially likely since there is no
evidence in this record of any third-party use for food
products or beer of marks which consist of the word
“Ballpark.”
We turn next to the issue of nonuse of the mark
BALLPARK DRAFT in commerce. Applicant’s witness testified
that the following activities take place entirely within the
state of Ohio: (1) brewing the product; (2) manufacturing
the kegs to hold the product; (3) attaching the labels
bearing the mark to the product; (4) transporting and
distributing the product; (5) and selling the product. In
addition, applicant stipulated at its deposition that all
its sales were made to Sportservice in Cleveland, Ohio.
Further, in this regard, applicant has admitted that it has
Opposition No. 103,744
7
not transported, or caused to be transported, or sold goods
bearing the mark BALLPARK DRAFT outside the state of Ohio.
We agree with opposer that applicant’s intrastate use
of the mark does not directly affect commerce which Congress
may lawfully regulate nor does it satisfy the “use in
commerce” requirement of the Trademark Act. See Marita
Spirits Ltd. v. Charles Jaquin Et Cie., Inc., 161 USPQ 240
(TTAB 1969); In re Bagel Factory, Inc., 183 USPQ 553 (TTAB
1974); and In re Cook United, Inc., 188 USPQ 284 (TTAB
1975).
Decision: The opposition is sustained on the grounds
of likelihood of confusion and nonuse of the mark BALLPARK
DRAFT in commerce.
J. D. Sams
E. J. Seeherman
P. T. Hairston
Administrative Trademark Judges
Trademark Trial and Appeal Board
Opposition No. 103,744
8