KRBL Limitedv.Agrocrop Exports Ltd.

Trademark Trial and Appeal Board

Apr 14, 2009

No. 91177022 (T.T.A.B. Apr. 14, 2009)

Mailed:
April 14, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

KRBL Limited
v.
Agrocrop Exports Ltd.
_____

Opposition No. 91177022
to application Serial No. 78738716
filed on October 23, 2005
_____

Mark I. Peroff of Hiscock & Barclay, LLP for KRBL Limited.

Thomas A. O’Rourke of Bodner & O’Rourke for Agrocrop
Exports Ltd.
______

Before Grendel, Holtzman and Walsh, Administrative
Trademark Judges.

Opinion by Grendel, Administrative Trademark Judge:

Agrocrop Exports Ltd., applicant herein, seeks
registration on the Principal Register of the mark GATEWAY
OF INDIA (in standard character form) for goods and
services identified in the application as:

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91177022
2
frozen and packaged Indian food products, namely,
rice, and prepared entrees consisting primarily
of rice

in Class 30; and

import and export agencies in the field of frozen
and packaged Indian food products, namely, rice,
breads, pappadums, pulses, herbs, spices, spice
mixtures, curries, sauces, marinades, food
pastes, fruit pulp and juices, canned and frozen
vegetables, condiments, pickles, relishes,
chutneys, dhals, puddings, confectionaries,
desserts, snack foods, prepared rice dishes,
prepared curry dishes, prepared vegetarian
dishes, and prepared meat dishes

in Class 35.1

Opposer, KRBL Limited, has opposed registration on the
ground that applicant’s mark, as applied to the goods and
services identified in the application, so resembles
opposer’s previously-used and registered mark (depicted
below),

1 The application is based on applicant’s ownership of Canadian
Registration No. TMA670034, which was issued on August 16, 2006.
Trademark Act Section 44(e), 15 U.S.C. §1126(e). Applicant has
not alleged or proven any use of the mark in commerce.

Opposition No. 91177022
3
which is registered on the Principal Register for goods
identified in the registration as “rice,”2 as to be likely
to cause confusion, to cause mistake, or to deceive.
Trademark Act Section 2(d), 15 U.S.C. 1052(d).3
By rule, the evidence of record includes the
pleadings, and the file of applicant’s involved
application. Opposer submitted evidence at trial
consisting of a Notice of Reliance on a status and title
copy of its pleaded registration, and the August 12, 2008
testimony deposition of Ali Reza Mehdi, opposer’s regional
manager for North America, and Exhibits 1-16 thereto.
Applicant did not submit evidence at trial.
Opposer filed a brief on the case. Applicant did not.
We sustain the opposition.

Because opposer has properly made its pleaded
registration of record, and because opposer’s likelihood of
confusion claim is not frivolous, we find that opposer has
established its standing to oppose registration of
applicant’s mark. See Lipton Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982); see

2 Registration No. 3168607, issued on November 7, 2006 from an
application filed on December 23, 2005.

3 In the notice of opposition, opposer also alleged dilution as a
ground of opposition. Opposer has not pursued that claim in its
brief, and we deem opposer to have waived it.
Opposition No. 91177022
4
also Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842 (Fed. Cir. 2000);
Moreover, because opposer’s pleaded registration is of
record, Section 2(d) priority is not an issue in this case
as to the registered mark and goods covered by said
registration, i.e., Class 30 “rice.” See King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108
(CCPA 1974). Opposer also has proven prior and continuous
actual use of the mark in commerce since August 2005 in
connection with importing and exporting rice between India
and its distributors in the United States. (Mehdi Depo. at
16, 19, 26-27 and 108-109.) Opposer’s use predates the
earliest date upon which applicant can rely for priority
purposes in this case, i.e., the October 23, 2005 filing
date of applicant’s application. In short, opposer’s
Section 2(d) priority is not an issue as to Class 30
“rice,” and opposer has established its actual priority of
use of its mark in connection with the Class 35
import/export services involved in this case.
Our likelihood of confusion determination under
Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the
likelihood of confusion issue (the du Pont factors). See
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
Opposition No. 91177022
5
USPQ 563 (CCPA 1973). See also Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003); In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
We begin our analysis with the second du Pont factor,
under which we consider evidence pertaining to the
similarity or dissimilarity of the parties’ respective
goods and services. It is settled that it is not necessary
that these respective goods and/or services be identical or
even competitive in order to find that they are related for
purposes of our likelihood of confusion analysis. That is,
the issue is not whether consumers would confuse the goods
and/or services themselves, but rather whether they would
be confused as to the source of the goods and/or services.
See In re Rexel Inc., 223 USPQ 830 (TTAB 1984). It is
sufficient that the goods and/or services be related in
some manner, or that the circumstances surrounding their
use be such, that they would be likely to be encountered by
the same persons in situations that would give rise,
because of the marks used thereon, to a mistaken belief
that they originate from or are in some way associated with
the same source or that there is an association or
Opposition No. 91177022
6
connection between the sources of the respective goods
and/or services. See In re Martin’s Famous Pastry Shoppe,
Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984); In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991); and In re
International Telephone & Telegraph Corp., 197 USPQ 910
(TTAB 1978).
Applying these principles in this case, we find as
follows.
Applicant seeks registration of its mark in two
classes, i.e., goods in Class 30 and services in Class 35.
Applicant’s Class 30 goods are identified as “frozen and
packaged Indian food products, namely, rice, and prepared
entrees consisting primarily of rice.” Opposer’s pleaded
registration identifies opposer’s goods as “rice,” which
encompasses applicant’s Indian rice and rice entrees. We
find that the parties’ Class 30 goods are identical as to
“rice,” and that they are highly related as to applicant’s
“prepared entrees consisting primarily of rice.” The
second du Pont factor weighs in favor of a finding of
likelihood of confusion as to applicant’s Class 30 goods.
We also find that applicant’s Class 35 “import and
export agencies” in the field of Indian food products,
including “rice” and “prepared rice dishes,” are similar
and related to the “rice” identified in registrant’s
Opposition No. 91177022
7
pleaded registration, and are essentially identical to
opposer’s services in the nature of importing and exporting
rice between India and its U.S. distributors. We also find
that opposer’s “rice” and its import/export services
involving rice are similar and related to applicant’s
import/export services involving the other Indian food
products identified in applicant’s Class 35 recitation of
services.
For these reasons, we find that the second du Pont
factor weighs in favor of a finding of likelihood of
confusion as to both applicant’s Class 30 goods and its
Class 35 services.
We turn next to the third du Pont factor, under which
we compare the parties’ trade channels and classes of
purchasers. There are no trade channel or purchaser
limitations or restrictions in applicant’s identification
of goods and services or in the goods identified in
opposer’s pleaded registration, so we presume that such
goods and services are marketed in all normal trade
channels and to all normal classes of purchasers for such
goods and services. In re Elbaum, 211 USPQ 639 (TTAB
1981).
To the extent that applicant’s goods and services are
identical or highly similar to opposer’s goods and services
Opposition No. 91177022
8
(i.e., as to applicant’s Indian “rice” and “prepared rice
dishes,” and applicant’s “import and export agencies” in
the field of Indian food products including rice, we find
that the parties’ trade channels and classes of purchasers
for such goods and services are likewise identical. In re
Smith & Mehaffey, 31 USPQ2d 1531 (TTAB 1994).
We further find that applicant’s Class 35 import and
export agency services involving the other Indian food
products identified in the application, and opposer’s
identical and otherwise highly similar services, likewise
would move in similar if not identical trade channels and
to similar if not identical classes of purchasers. Id.
For these reasons, we find that the third du Pont factor
weighs in favor of a finding of likelihood of confusion as
to both the Class 30 goods and the Class 35 services
identified in applicant’s application.
Under the fourth du Pont factor (conditions of
purchase), we find that applicant’s Class 30 rice and
prepared rice dishes are inexpensive goods which are
purchased by ordinary consumers who would exercise only an
ordinary degree of care in purchasing the goods. The
fourth du Pont factor weighs in favor of a finding of
likelihood of confusion as to applicant’s Class 30 goods.
Opposition No. 91177022
9
Opposer’s and applicant’s respective Class 35 “import
and export agencies” in the field of food products are
likely to be marketed to more knowledgeable purchasers in
the food products industry, who are likely to exercise a
somewhat higher degree of care in purchasing the services.
We find that the fourth du Pont factor on balance weighs
against a finding of likelihood of confusion as to
applicant’s Class 35 services.
We turn finally to the first du Pont factor, which
requires us to determine the similarity or dissimilarity of
the marks when viewed in their entireties in terms of
appearance, sound, connotation and commercial impression.
Palm Bay Imports, Inc., supra. 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 and/or services 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). Furthermore, although the marks at
issue must be considered in their entireties, it is well-
Opposition No. 91177022
10
settled that one feature of a mark may be more significant
than another, and it is not improper to give more weight to
this dominant feature in determining the commercial
impression created by the mark. See In re Chatam
International Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed.
Cir. 2004); In re National Data Corp., 753 F.2d 1056, 224
USPQ 749 (Fed. Cir. 1985). Finally, in cases such as this,
where the applicant’s goods and/or services are in part
identical to the opposer’s goods and services, the degree
of similarity between the marks which is required to
support a finding of likelihood of confusion is less than
it would be if the goods and/or services were not
identical. Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992).
Applying these principles in the present case, we find
as follows. First, we find that the dominant feature in
the commercial impression created by opposer’s mark is the
wording in the mark, INDIA GATE. The archway or gateway
design element in opposer’s mark element essentially
reinforces the impression created by the wording INDIA
GATE.
Next, we find the marks differ somewhat in terms of
appearance to the extent that opposer’s mark includes the
design element and to the extent that “gateway” looks
Opposition No. 91177022
11
different than “gate.” The marks look the same as to the
word INDIA in both marks. On balance, we find the marks to
be similar in terms of appearance. In terms of sound, the
marks differ only in that applicant’s mark includes the
preposition “of” and the word “gateway” instead of the word
“gate.” These differences are not significant, and we find
the marks to be similar in terms of sound. In terms of
connotation, we find that the marks are highly similar.
Both refer to India, and the meanings of “gate” and
“gateway,” although not identical, are closely related and
complementary. Both marks connote a gate, or gateway,
leading to India. Likewise, the marks are highly similar
in terms of commercial impression. Both marks create the
impression of a gate or gateway leading to India, and that
the goods and services offered under the respective marks
are or involve food products from, or in the style of,
Indian food.
For these reasons, we find that the marks, when
compared in their entireties in terms of appearance, sound,
connotation and commercial impression, and as used in
connection with the identical (in part) goods and services
involved in this case, are similar. The first du Pont
factor weighs in favor of a finding of likelihood of
confusion.
Opposition No. 91177022
12
Considering and balancing all of the evidence
pertaining to the relevant du Pont factors in this case, we
find that confusion is likely, as to both applicant’s Class
30 goods and its Class 35 services.
In summary, we conclude that opposer has established
its standing and its Section 2(d) ground of opposition, and
that opposer therefore is entitled to prevail in this case.

Decision: The opposition is sustained as to both
Class 30 and Class 35 in applicant’s application.