Johnstown Feed & Seed, Inc.

Trademark Trial and Appeal Board

Jun 8, 1999

No. 75202158 (T.T.A.B. Jun. 8, 1999)

Paper No. 11
PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JUNE 8, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Johnstown Feed & Seed, Inc.
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Serial No. 75/202,157 and 75/202,158
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David S. Woronoff for Johnstown Feed & Seed, Inc.
Teresa A. Lee, Trademark Examining Attorney, Law Office 101
(Christopher Wells, Acting Managing Attorney).
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Before Seeherman, Hairston and Chapman, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
Applications have been filed by Johnstown Feed & Seed,
Inc. to register the marks shown below for, in each case,
“livestock feed and animal feed.”
Ser Nos. 75/202,157 and 75/202,158
2
1
2
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the
ground that each of applicant’s marks, when used in
connection with the identified goods, so resembles the

1Application Serial No. 75/202,157, filed November 6, 1996,
alleging dates of first use of July 1, 1990. The application
contains a statement that “[t]he lining is a feature of the mark
and does not indicate color.” Further, the application contains
a disclaimer of the words “Complete Line of Quality Feeds;”
“Quality Feeds Inc.;” and “Satisfaction Guaranteed.”
2Application Serial No. 75/202,158, filed November 6, 1996,
alleging dates of first use of August 1, 1992. The application
contains a disclaimer of “Quality Feeds.” Also, applicant has
indicated that the letter “Q” has no meaning in the relevant
industry or trade as applied to the goods. We should point out
that inside the letter “Q” are the indistinct figures of four
farm animals.
Ser Nos. 75/202,157 and 75/202,158
3
previously registered mark PRECISE for pet food,3 as to be
likely to cause confusion.
Applicant, in each instance, has appealed. Briefs
have been filed, but an oral hearing was not requested.
Because the issue in each case is essentially the same, the
appeals have been treated in a single opinion. We affirm
the refusals to register.
Turning first to a consideration of the respective
products, it is well settled that goods need not be
identical or even competitive in nature in order to support
a finding of likelihood of confusion. Instead, it is
sufficient that the respective goods are related in some
manner, and/or that the circumstances surrounding the
marketing of the goods are such that they would or could be
encountered by the same persons in situations that could,
because of the similarities of the marks used therewith,
give rise to the mistaken belief that they originate from
or are in some way associated with the same producer. See
Monsanto Co. v. Enviro-Chem Corp., 199 USPQ 590, 595-96
(TTAB 1978), and In re International Telephone & Telegraph
Corp., 197 USPQ 910, 911 (TTAB 1978).

3 Registration No. 1,481,817 issued March 22, 1988; Section 8
affidavit filed.
Ser Nos. 75/202,157 and 75/202,158
4
The Examining Attorney, in support of her position
that livestock feed and animal feed on the one hand, and
pet food on the other hand, are related, has made of record
a number of third-party registrations which show that
entities have registered a single mark for livestock feed
and/or animal feed and pet food. Such registrations, while
not evidence that the marks shown therein are in use or
that the public is familiar with them, have some probative
value to the extent that they show that the goods involved
in this appeal are of a kind which may emanate from a
single source under the same mark. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993),
and In re Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467, 1470
(TTAB 1988). Also, the Examining Attorney has made of
record excerpts from the NEXIS data base which indicate
that several companies manufacture both livestock feed
and/or animal feed and pet food.
Notwithstanding the above evidence, applicant insists
that the respective goods are different in nature, and that
they would generally be sold to different classes of
purchasers through specifically different trade channels.
In particular, applicant states that it sells its goods
primarily to commercial livestock feeders.
Ser Nos. 75/202,157 and 75/202,158
5
For us, however, the third-party registrations and
NEXIS evidence offered by the Examining Attorney are
sufficient to establish that livestock feed and/or animal
feed and pet food are related products, which if sold under
the same or similar marks, would result in a likelihood of
confusion as to origin or affiliation. Apart from the fact
that applicant’s applications contain no restrictions as to
channels of trade or purchasers, we note that the Examining
Attorney submitted excerpts from the NEXIS data base which
indicate that livestock feed and pet food are sold in farm
and feed stores. Thus, the evidence submitted by the
Examining Attorney shows that the same companies make
livestock feed and/or animal feed and pet food, and that
the same dealers sell these kinds of feed and pet food.
Also, there is overlap in the ultimate consumers inasmuch
as there are people who raise livestock and other animals
who also own pets. In view of the foregoing, we find that
the goods are sufficiently related that, when sold under
identical or similar marks, confusion is likely to occur in
the marketplace.
Turning then to the marks, applicant argues that,
given the presence of additional wording and designs in its
marks, the respective marks are sufficiently
distinguishable to avoid confusion.
Ser Nos. 75/202,157 and 75/202,158
6
We agree with the Examining Attorney, however, that
the respective marks are highly similar in commercial
impression because the dominant literal and source-
identifying element of each of applicant’s marks is the
word PRECISE, which is identical to the cited mark. It is
the “PRECISE” portion of applicant’s marks which is most
likely to be impressed upon a customer’s memory and would
be used by prospective purchasers when asking for
applicant’s goods.
While applicant’s marks must be considered in their
entireties, including any disclaimed matter and designs, it
is nevertheless appropriate, for rational reasons, to
regard certain features of the marks as being more dominant
or otherwise significant, and therefore to give those
features greater weight. In the case of marks which
consist of words and a design, the words are normally
accorded greater weight because they would be used by
purchasers to request the goods. See In re Appetito
Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987). Also,
disclaimed or otherwise descriptive matter is generally
viewed as a less dominant or significant feature of a mark.
See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749,
751-52 (Fed. Cir. 1985).
Ser Nos. 75/202,157 and 75/202,158
7
Applying such principles to applicant’s marks, it is
clear that the word PRECISE is the dominant literal and
source-identifying element in these marks. The disclaimed
wording in applicant’s marks is descriptive or laudatory
and, as such, has little impact on the overall commercial
impression created by the marks. While there is no doubt
that the stylized letter “Q” in one of applicant’s marks is
visually striking, it is unlikely that customers and
prospective purchasers will use the letter “Q” in calling
for applicant’s goods. As for the farm animals within the
“Q,” they are barely visible and, even if they were
noticed, have little source-identifying value because they
indicate the animals for which the feed is made. With
respect to applicant’s other mark, although the background
design therein is relatively large, it is not particularly
distinctive such that it serves to distinguish this mark
from the cited mark.
Even if customers and prospective purchasers note the
differences between applicant’s marks and the cited marks,
they are likely to ascribe the differences as denoting that
the marks are used for different products, rather than to
indicate that there are different sources for the products.
That is, they are likely to believe that PRECISE alone
denotes pet food and PRECISE with other wording and designs
Ser Nos. 75/202,157 and 75/202,158
8
denotes livestock feed and animal feed from the same
source, particularly since the other wording includes
QUALITY FEEDS.4
As to applicant’s assertion that it is unaware of any
instances of actual confusion, suffice it to say that this
factor is of limited probative value in the context of an
ex parte proceeding wherein there is no way to assess what
the experience of the registrant has been. In re Cruising
World, Inc., 219 USPQ 757, 758 (TTAB 1983). Moreover, the
issue before us is not one of actual confusion, but only
the likelihood of confusion.
Finally, to the extent that applicant’s contentions
raise a doubt on the issue of likelihood of confusion, such
doubt must be resolved in favor of registrant. In re
Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984).
We conclude that customers and prospective purchasers
familiar with registrant’s pet food sold under the mark
PRECISE would be likely to believe, upon encountering
applicant’s marks consisting of PRECISE and other wording
and designs for livestock feed and animal feed, that the

4 We note that although the word “precise” may be somewhat
suggestive when applied to applicant’s and registrant’s
respective products, this record is devoid of any third-party
uses of the same and/or similar marks on similar products.
Ser Nos. 75/202,157 and 75/202,158
9
respective products emanate from or are associated with the
same source.
Decision: The refusal to register is affirmed in each
case.
E. J. Seeherman
P. T. Hairston
B. A. Chapman
Administrative Trademark
Judges, Trademark Trial and
Appeal Board