J. L. Honigberg & Associates, Inc.

Trademark Trial and Appeal Board

Jun 15, 1999

EX (T.T.A.B. Jun. 15, 1999)

Hearing: Paper No. 17
August 12, 1998 HRW
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JUNE 15, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re J. L. Honigberg & Associates, Inc.
________
Serial Nos. 75/072,200 and
75/072,201
_______
Stephen Rubin for J. L. Honigberg & Associates, Inc.
Mitchell Front, Trademark Examining Attorney, Law Office
101 (R. Ellsworth Williams, Managing Attorney).
_______
Before Cissel, Hairston and Wendel, Administrative
Trademark Judges.
Opinion by Wendel, Administrative Trademark Judge:
J. L. Honigberg & Associates, Inc. has filed
applications to register the marks SUN BELLE1 and SUN BELLE
in the following design format2

1 Serial No. 75/072,200, filed March 13, 1996, claiming a first
use date of Nov. 9, 1993 and a first use in commerce of April 19,
1994.
2 Serial No. 75/072,201, filed March 13, 1996, claiming a first
use date of Nov. 19, 1993 and a first use in commerce of April
19, 1994.
Ser No. 75/072,200 and 75/072,201
2
for “fresh fruits and vegetables.”
Registration has been finally refused under Section
2(d) of the Trademark Act, on the ground of likelihood of
confusion with the registered mark SUN BELL for “canned
tuna, canned clams, canned oysters and canned mandarin
oranges.”3
Applicant filed a request that the appeals for the two
applications be consolidated and the Board approved this
request on March 24, 1998. Accordingly, both applicant
and the Examining Attorney have filed consolidated briefs
and a single oral hearing was held. This opinion is issued
for both applications.
The Marks
The Examining Attorney maintains that applicant’s
marks SUN BELLE and SUN BELLE and design create overall
commercial impressions similar to that of the registered
mark SUN BELL. He points out that the word portions of the
marks, SUN BELLE and SUN BELL, are identical in sound and
nearly identical in appearance, in that they differ only by

Ser No. 75/072,200 and 75/072,201
3
the final letter “E.” In his analysis, the word portion
remains the dominant element in applicant’s composite mark,
since it is the word portion which would be impressed on
the purchaser’s memory and used to call for the goods.
Applicant argues that the Examining Attorney has
placed undue emphasis on the similarity in sound of the
respective marks, particularly since these are not goods
which are normally ordered orally, and has failed to
consider the different connotations of the marks SUN BELLE
and SUN BELL, which lead to different overall commercial
impressions. Applicant contends that its mark SUN BELLE
brings to mind a beautiful woman or object (belle) enjoying
or celebrating the sun, whereas SUN BELL refers to a cup-
shaped device that rings (bell) rung in connection with the
sun. Applicant argues that the word “sun” itself is weak,
being frequently used in trademarks, but that the compound
marks SUN BELLE and SUN BELL, particularly when used in
connection with the respective goods, result in two
distinct marks with totally different meanings.4

3 Reg. No. 696,159, issued Apr. 12, 1960, claiming first use
dates of June 24, 1957. Section 8 affidavit and renewal filed.
4 Applicant’s request to supplement its brief, filed January 25,
1999, to add a citation to Streetwise Maps, Inc. v. Vandam, Inc.,
159 F.2d 739 (2nd Cir. 1998) is granted. Upon consideration of
this decision, however, we cannot agree with applicant that the
situation in that case is comparable to the present one. Not
only was the cited case an infringement suit in which the trade
Ser No. 75/072,200 and 75/072,201
4
In certain cases, similarities in sound or visual
appearance or connotation alone may be sufficient to find
the marks confusingly similar. Krim-ko Corp. v. Coco-Cola
Co., 390 F.2d 728, 156 USPQ 523 (CCPA 1968). On the other
hand, two marks may be extremely similar or even identical
in one aspect and yet not be confusingly similar because of
significant differences in one or more of the other two
aspects. See Kabushiki Kaisha Hattori Seiko v. Satellite
International Ltd., 29 USPQ2d 1317 (TTAB 1991).
Here the word marks SUN BELLE and SUN BELL are
obviously identical in sound. The fresh produce and canned
goods involved, however, are admittedly not items which
would normally be called for orally, but rather would often
be purchased in a self-serve market. Thus, identity in
sound is not sufficient in itself to render the marks
confusingly similar.
The marks are also highly similar in appearance. The
only distinction is the final letter “E” in applicant’s
mark, which easily might be overlooked by purchasers of

dress and manner of use of the marks was taken into consideration
in determining likelihood of confusion, but also the plaintiff’s
mark STREETWISE was found to be weak in its entirety, both the
words “street” and “wise” being extensively used by others.
Thus, no likelihood of confusion was found with use of the mark
STREETSMART for similar goods. Here there has been no showing by
applicant that the registered mark SUN BELL is weak. Applicant’s
only evidence is directed to showing that the word “sun” is
frequently used in trademarks.
Ser No. 75/072,200 and 75/072,201
5
either produce or canned items while doing their grocery
shopping.
Thus, the question is whether the words SUN BELLE and
SUN BELL convey sufficiently different meanings, when
viewed by these purchasers, to result in distinct overall
commercial impressions. In the first place, while we
agree that SUN BELL may in some way connote a type of
“bell,” we know of no generally recognized “sun bell,”
such that purchasers would immediately make this
association. But even more significantly, the connotation
of SUN BELLE is equally uncertain. Although applicant
presently argues that its mark “conjures” the idea of a
“beautiful woman or object enjoying the sun,” applicant
made of record during the prosecution of this case the
declaration of John Hedges, an officer of applicant, in
which he stated that “the word ‘belle,’ the French word for
beautiful, is an adjective modifying the word ‘sun’, and
was chosen to emphasize the products’ aesthetics, flavor,
and foreign origin, thus appealing directly to
sophisticated consumers.” He simply adds that “this
meaning ...parallels its use as a noun in the South wherein
it describes a beautiful and sophisticated young lady.”
[Paragraph 5]. As for the design feature, he states that
it was “inspired by traditional American ‘mariner’s
Ser No. 75/072,200 and 75/072,201
6
compass’ quilt designs... and reinforces the sun theme and
the foreign origin of [applicant’s] product line.”
Thus, applicant itself has demonstrated that there are
at least two potential interpretations of SUN BELLE, one
being “beautiful sun,” the other “a beautiful lady enjoying
the sun.” The design element reinforces only the “sun”
portion of the mark and, if anything, points the viewer of
the mark in the direction of the “beautiful sun”
connotation.
Moreover, this is not a case where the goods to which
the marks are applied lead to different commercial
impressions for the respective marks. Any link which might
be discerned between SUN BELLE and fresh fruits and
vegetables might just as easily be seen between SUN BELL
and canned fruit. Both focus on the same sun image. Cf.
In re Sears, Roebuck & Co., 2 USPQ2d 1312 (TTAB
1987)[different meanings are projected by the mark
CROSSOVER when used on brassieres and on ladies’
sportswear, respectively].
Accordingly, we are faced with two marks which are
phonetically identical, highly similar in appearance, and
although not the same in meaning, both focus on the same
general sun image. Given these similarities, together with
the well-recognized fact that purchasers often retain only
Ser No. 75/072,200 and 75/072,201
7
a general impression of marks they have encountered in the
marketplace, we do not find the marks sufficiently
different to create distinct overall commercial impressions
which will be remembered over a period of time. See
Interco Incorporated v. Acme Boot Co., 181 USPQ 664 (TTAB
1974)[likelihood of confusion between marks GOLDEN SPUR and
GOLDEN SPIKE, which are substantially similar in sound and
appearance and, although the literal meanings are
different, both convey a similar connotation]. Instead,
the marks are highly likely to be confused by the ordinary
consumers of the goods involved.
The Goods
The Examining Attorney argues that applicant’s fresh
fruit and vegetables are closely related to the canned
mandarin oranges of registrant. In support of his position
that a single entity often markets both fresh fruits and
vegetables and processed fruits and vegetables, he has made
of record several third-party registrations in which a
single mark has been registered by the same entity for both
types of goods. As appropriate representative examples, we
note
Reg. No. 1,501,506 for the mark LOTUS for “fresh
fruits” and “canned fresh fruits”;
Ser No. 75/072,200 and 75/072,201
8
Reg. No. 1,369,602 for the mark MAINE WILD for “fresh
blueberries” and “frozen, canned or processed
blueberries”;
Reg. No. 1,109,554 for the mark SUN-LAND for “raisins,
roasted nuts, dried fruits, canned fruits, preserved
fruits, mincemeat, jam and jelly” and “edible nuts in
their natural state and fresh fruits”; and
Reg. 984,626 for the mark HAWAIIAN GOLD (stylized) for
“canned fruits, canned fruit juices and fresh fruits.”
In addition, he made of record five registrations owned by
the Dole Food Company, Inc. for the mark DOLE or DOLE and
design for both fresh fruits and vegetables and processed
fruits and vegetables.5
Applicant argues against any relationship between
fresh and canned fruits and vegetables. Applicant strongly
objects to the evidence introduced by the Examining
Attorney of the use of the same mark by a single source for
both types of goods on the basis that several of the
registrations relied upon by the Examining Attorney are
multi-class registrations wherein a single mark is
registered as a house mark. Applicant argues that, if
registrations of this type are taken under consideration,
all food products would be related. Applicant points out
that John Hedges, a declarant with “first-hand” knowledge
of the produce industry, states that the produce department

5 Reg. Nos. 1,792,210; 1,568,638; 1,509,411; 1,494,440 and
1,334,608.
Ser No. 75/072,200 and 75/072,201
9
of a supermarket is “essentially a self-contained fruit
stand/produce market within the supermarket”; that canned
mandarin oranges “would not be found anywhere near fresh
produce in the supermarket”; and that canned fruit items
are no longer considered or used as substitutes for the
fresh products.
We agree with applicant that the multi-class
registrations introduced by the Examining Attorney in which
single marks are used for all varieties of supermarket
items cannot properly be relied upon to demonstrate any
relationship between the goods upon which these house-type
marks are being used. In fact, we purposely did not cite
those registrations above. The Examining Attorney’s
evidence, however, was not limited to registrations of this
nature. Instead, he included several registrations for
marks registered exclusively, or almost exclusively, for
fresh and processed fruits and vegetables. On the basis of
these registrations, and particularly, the registrations
for the DOLE marks, we find that the Examining Attorney has
adequately established that both fresh and canned fruits
and vegetables might well be assumed to emanate from the
same source when highly similar marks are used in
connection therewith. See In re Albert Trostel & Sons Co.,
29 USPQ2d 1783 (TTAB 1993); In re Mucky Duck Mustard Co.
Ser No. 75/072,200 and 75/072,201
10
Inc., 6 USPQ2d 1467 (TTAB 1988). It is not a question of
whether fresh fruits and vegetables are interchangeable
with the canned varieties, but rather whether both might be
assumed to originate from a single source, on the basis of
known marketing practices. Here, we find it highly likely
that purchasers would assume a common origin.
Accordingly, on the basis of the overall similarity of
the marks SUN BELLE (or SUN BELLE and design) and SUN BELL
and the close relationship of the goods upon which they are
being used, we find that purchasers are likely to be
confused as to the source of the respective goods.
Decision: The refusal to register under Section 2(d)
is affirmed.
R. F. Cissel
P. T. Hairston
H. R. Wendel
Trademark Administrative Judges,
Trademark Trial and Appeal Board