Jack Klein Trust Partnership

Trademark Trial and Appeal Board

Aug 6, 1999

No. 75233896 (T.T.A.B. Aug. 6, 1999)

Paper No. 9
EWH/MM
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB AUG. 6, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Jack Klein Trust Partnership
________
Serial No. 75/233,896
_______
Stephen Grubb for Jack Klein Trust Partnership
Laurie Mintzer, Trademark Examining Attorney, Law Office
101 (Ron Williams, Managing Attorney).
_______
Before Seeherman, Hanak and Quinn, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Jack Klein Trust Partnership (applicant) seeks to
register DELTA KING and steamboat design in the form shown
below for “fresh vegetables.” The application was filed on
January 30, 1997, with a claimed first use date of July 1,
1994.
Ser No. 75/233,896
2
The Examining Attorney refused registration pursuant
to Section 2(d) of the Lanham Trademark Act on the basis
that applicant’s mark, as applied to fresh vegetables, is
likely to cause confusion with the mark DELTA KING,
previously registered in typed drawing form for “seeds for
agricultural purposes; namely, corn, cotton, grain sorghum
(milo), oats, rice, rye, soybeans and wheat.” Registration
Number 1,898,255.
When the refusal was made final, applicant appealed to
this Board. Applicant and the Examining Attorney filed
briefs. Applicant did not request a hearing.
In any likelihood of confusion analysis, two key
considerations are the similarities of the goods and the
similarities of the marks. Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
Considering first the goods, we note at the outset
that the Examining Attorney has made two incorrect
assumptions regarding registrant’s goods, namely, that they
are vegetable seeds and that they are sold to consumers.
In point of fact, registrant’s goods are grain seeds, and
more importantly, they are for “agricultural purposes,”
meaning that they are sold to farmers and other
professionals. Thus, there are significant differences
Ser No. 75/233,896
3
between applicant’s goods (fresh vegetables) and
registrant’s goods (grain seeds sold for agricultural
purposes). The only common purchasers of both would be
farmers and other agricultural professionals. However, we
believe that when selecting grain seeds for the production
of crops on which their livelihoods depend, farmers and
other professionals would exercise a very high level of
care.
Turning to a consideration of the marks, we find that
while the word portion of applicant’s mark is identical to
registrant’s word mark, the words DELTA KING in applicant’s
mark have an entirely different meaning than do the words
DELTA KING in registrant’s mark. In applicant’s mark, the
words DELTA KING clearly refer to the steamboat which is
prominently pictured in applicant’s mark. On the other
hand, registrant’s mark lacks any design feature. One of
the meanings of the word “delta” is the soil deposited at
the mouth of a river. Webster’s Third New International
Dictionary (1976). This soil is typically very rich in
nutrients. Thus the word DELTA appearing in registrant’s
mark would bring to mind rich soil, and indirectly
productive grain seeds.
In conclusion, given the differences in the goods of
registrant and applicant and given the differences in the
Ser No. 75/233,896
4
connotations of the two marks (not to mention the fact that
applicant’s mark, unlike registrant’s mark, contains a
prominent design feature), we find that there exists no
likelihood of confusion.
Decision: The refusal to register is reversed.
E. J. Seeherman
E. W. Hanak
T. J. Quinn
Administrative Trademark
Judges, Trademark Trial and
Appeal Board