Mega Alimentos, S.A. de C.V.

Trademark Trial and Appeal Board

Jun 8, 2016

No. 86309978 (T.T.A.B. Jun. 8, 2016)

THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB

Mailed: June 8, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
________

In re Mega Alimentos, S.A. de C.V.
________

Serial Nos. 86309975; 86309978; 86309982
_______

Arturo Pérez-Guerrero
for Mega Alimentos, S.A. de C.V.

Cristiana Schwab, Trademark Examining Attorney, Law Office 110,
Chris A.F. Pedersen, Managing Attorney.
_______

Before Quinn, Masiello, and Heasley,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:
Mega Alimentos, S.A. de C.V. (“Applicant”) filed applications to register on the
Principal Register the three marks shown below.
LA DIVINA ICH (in standard characters)

Serial Nos. 86309975; 86309978; 86309982

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Each of the applied-for marks is for “hot sauce, expressly excluding meat sauce
(gravy) and salad dressings” in International Class 30.1 Each application indicates
the following: “The English translation of ‘LA DIVINA’ in the mark is ‘THE DIVINE.’
The wording ‘ICH’ has no meaning in a foreign language.”
The Trademark Examining Attorney refused registration of each application
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion. The Examining Attorney asserts that Applicant’s marks,
when applied to Applicant’s goods, so resemble eight previously registered marks for
various food products and services, as to be likely to cause confusion. The
registrations are shown below; Mosaic Brands of New York, LLC owns seven
registrations, and La Divina Gelateria, LLC owns one registration.

1 Respectively, Application Serial No. 86309978, filed June 14, 2014 under Section 44(e) of
the Trademark Act, 15 U.S.C. § 1126(e), based on Mexican Registration No. 1337815; and
Application Serial No. 86309975, filed June 14, 2014 under Section 44(e) of the Trademark
Act based on Mexican Registration No. 1381641. The second application includes the
following description of the mark: “The mark consists of the wording ‘LA DIVINA ICH’ in
stylized letters.” The third application is Serial No. 86309982, filed June 14, 2014 under
Section 44(e) of the Trademark Act based on Mexican Registration No. 1381642. The words
“Salsa Picante” are disclaimed. The application includes the following description of the
mark: “The mark consists of the wording ‘SALSA PICANTE LA DIVINA ICH’ in stylized
letters inside a decorative emblem comprised of a quadrilateral-like shape with slightly
curved and rounded prongs extending from the ends, and additional curved decorative
features extending out from the center.”
Serial Nos. 86309975; 86309978; 86309982

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Registrations owned by Mosaic Brands of New York, LLC:
Registration No. Mark Goods
30767462 DIVINA
(standard characters)
Processed olives, pickles,
stuffed grape leaves,
grilled vegetables,
processed white beans,
roasted peppers, roasted
peppers spread, stuffed
peppers, roasted
tomatoes, olive oil, olive
spread, cornichons,
processed anchovies,
stuffed olives, sundried
tomatoes, pickled
vegetables
30767483 DIVINA
(standard characters)
Couscous, balsamic
vinegar, capers,
caperberries
33462464 DIVINA
(standard characters)
Mini-toasts
33826145 ORGANIC DIVINA
(standard characters)
(ORGANIC disclaimed)
Processed olives and olive
spread containing organic
olives
37778566 DIVINA
(standard characters)
Salads comprised of
tomatoes and fresh
mozzarella balls packed
in oil
38679507 DIVINA BAR
(standard characters)
Processed olives and
stuffed olives

2 Issued April 4, 2006; renewed. “The English translation of the Italian wording ‘DIVINA’ is
‘divine.’”
3 Issued April 4, 2006; renewed. “The English translation of the Italian wording ‘DIVINA’ is
‘divine.’”
4 Issued November 27, 2007; Sections 8 and 15 combined declaration accepted and
acknowledged.
5 Issued February 12, 2008; Sections 8 and 15 combined declaration accepted and
acknowledged. “The English translation of the Italian wording ‘DIVINA’ is ‘divine.’”
6 Issued April 20, 2010; Sections 8 and 15 combined declaration accepted and acknowledged.
“The English translation of the Italian wording ‘DIVINA’ is ‘divine.’”
7 Issued October 26, 2010; Sections 8 and 15 combined declaration accepted and
acknowledged. “The English translation of the Italian wording ‘DIVINA’ is ‘divine.’”
Serial Nos. 86309975; 86309978; 86309982

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38843238 DIVINA
(standard characters)
Sea salt

Registration Owned by La Divina Gelateria, LLC:
Registration No. Mark Services
37781219 LA DIVINA
(standard characters)
Providing of food and
drink; restaurant services

When the refusals were made final, Applicant requested reconsideration. When
the requests for reconsideration were denied, Applicant appealed. The appeal is fully
briefed.
The appeals involve common issues of law and fact, and there is overlapping
evidence in the application files. Accordingly, we will decide the appeals in this single
opinion. See In re Binion, 93 USPQ2d 1531, 1533 (TTAB 2009); TBMP § 1214 (2015).
With respect to the similarity between the goods, Applicant states in its brief:
“Applicant is not arguing that the goods are not related. Of course they are.” (11
TTABVUE 9).10 Applicant then goes on to summarize its argument: “They [the goods]
are all specific food products but because of the weak nature of the cited
registration[s], because applicant must be allowed to communicate to its potential

8 Issued November 30, 2010; Sections 8 and 15 combined declaration accepted and
acknowledged.
9 Issued April 20, 2010; “The English translation of ‘La Divina’ in the mark is ‘The Divine
One.’”
10 Citations to the record throughout the decision are to TTABVUE, the Board’s online
docketing system. The number preceding “TTABVUE” corresponds to the docket entry
number; the number(s) following “TTABVUE” refer to the page number(s) of that particular
docket entry. In these appeals, the records and briefs are essentially identical. Thus, for ease
of reference, we have referred to the TTABVUE information pertaining to Serial No.
86309975.
Serial Nos. 86309975; 86309978; 86309982

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buyers that its product is DIVINE, and because applicant’s mark can be distinguished
from the cited registrations when seen as a whole,” there is no likelihood of confusion.
Id. Applicant essentially argues that the cited DIVINA marks are weak, as evidenced
by the coexistence of the registrations owned by two different entities. Applicant
asserts that the word DIVINA, meaning divine, good, wonderful and delightful, is a
laudatory word when used in connection with food products and, as such, Applicant
should not be prohibited from telling its customers that its hot sauce is “divine.”
Applicant further points to the presence of the “ICH” portion of its marks, serving to
distinguish them from the cited marks. Applicant submitted dictionary evidence and
excerpts from third-party websites.
The Examining Attorney maintains that Applicant’s marks are similar to each of
the cited marks, all sharing the identical word DIVINA. Any differences between the
marks are, the Examining Attorney contends, outweighed by the similarities. As for
the goods, the Examining Attorney asserts that they are closely related and/or
complementary food products, and that they often emanate from a common source
under the same mark; with respect to a comparison of Applicant’s goods and
Registrant’s services, restaurants often bottle and sell hot sauce under the same mark
as their restaurant services. In connection with her arguments regarding these
similarities under the second du Pont factor, the Examining Attorney introduced
third-party registrations and excerpts of third-party websites. Also made of record by
the Examining Attorney is dictionary evidence.
Serial Nos. 86309975; 86309978; 86309982

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Our 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. In re
E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the goods and/or services. See Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
As an initial matter, we view the DIVINA registrations owned by Mosaic Brands
of New York, LLC to present the strongest bases for affirmance of the Section 2(d)
refusal to register. Of these registrations, we will confine our analysis of the
likelihood of confusion to that between Applicant’s marks and Registrant’s DIVINA
mark standing alone.11 If confusion is likely between these marks, there is no need
for us to consider the likelihood of confusion with the other DIVINA-formative marks,
or with the LA DIVINA registered mark owned by La Divina Gelateria, LLC; while
if there is no confusion between these DIVINA marks, confusion would be even less
likely with the other cited registered marks. See In re Allegiance Staffing, 115
USPQ2d 1319, 1324 (TTAB 2015) (citing In re Max Capital Group Ltd., 93 USPQ2d
1243, 1245 (TTAB 2010)).
The Goods
We first turn to consider the du Pont factor relating to the similarity between the
goods. As indicated above, Applicant conceded that the goods are “related.” It is well
settled that the goods of Applicant and Registrant need not be identical or

11 In this connection, we focus on Registration Nos. 3076746, 3076748 and 3884323, all for
the mark DIVINA in standard characters.
Serial Nos. 86309975; 86309978; 86309982

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competitive, or even be offered through the same channels of trade, to support a
holding of likelihood of confusion. It is sufficient that the respective goods of Applicant
and Registrant are related in some manner, and/or that the conditions and activities
surrounding the marketing of the goods are such that they would or could be
encountered by the same persons under circumstances that could, because of the
similarity of the marks, give rise to the mistaken belief that they originate from the
same source. See Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1722 (Fed. Cir. 2012); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d
1894, 1898 (Fed. Cir. 2000). The issue here is not whether purchasers would confuse
the goods, but rather whether there is a likelihood of confusion as to the source of
these goods. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel
Inc., 223 USPQ 830 (TTAB 1984). There is no per se rule that all food items by nature
are related for purposes of the likelihood of confusion analysis. See, e.g., Hi-Country
Foods Corp. v. Hi Country Beef Jerky, 4 USPQ2d 1169, 1171-72 (TTAB 1987).
Nevertheless, Applicant’s concession, coupled with the Examining Attorney’s
evidence, establishes that the goods are related.
Although Applicant’s hot sauce and Registrant’s goods (e.g., olive oil, balsamic
vinegar, olives and salt) are specifically different food items, the Examining
Attorney’s evidence is quite persuasive that the goods are similar for purposes of the
likelihood of confusion analysis. The Examining Attorney introduced nine use-based
third-party registrations showing that in each instance a single entity has registered
the same mark for both types of goods involved in this appeal. (Office action, 9/29/14).
Serial Nos. 86309975; 86309978; 86309982

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The examples include the following: (Reg. No. 4132066, LA MARINERA for hot sauce,
processed olives, and processed peppers; Reg. No. 4213666, AMERICAN GARDEN
for hot sauce, salt and vinegar; and Reg. No. 4358459, NEWTON FARMS for hot
sauce, balsamic vinegar, and olive oil). “Third-party registrations which cover a
number of differing goods and/or services, and which are based on use in commerce,
although not evidence that the marks shown therein are in use on a commercial scale
or that the public is familiar with them, may nevertheless have some probative value
to the extent that they may serve to suggest that such goods or services are of a type
which may emanate from a single source.” In re Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988). See also In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993).
The record also includes third-party websites showing hot sauce and various food
items of the type covered by the cited registrations being sold under the same mark
by the same entity. (Office actions, 4/22/15 and 10/7/15). A representative sample
comprises the following: THE OLIVE TAP (hot sauce, olive oil, sea salt and balsamic
vinegar); RISING HY (hot sauce, olive oil, salt); MEZETTA (hot sauce and olives);
CRAZY JERRY’S (hot sauce and olives); and ROLAND (hot sauce, olives, sea salt and
capers). Further, the Examining Attorney introduced third-party websites showing
that hot sauce and goods of the type sold by Registrant often travel in the same trade
channels, including specialty stores such as Dean & DeLuca and The Oaks Gourmet.
(Office action, 9/29/14). These food items would be bought by the same classes of
purchasers, including ordinary consumers.
Serial Nos. 86309975; 86309978; 86309982

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The record also includes evidence of single recipes that incorporate both hot sauce
and the types of goods listed in the cited registrations, such as olives, capers, balsamic
vinegar and olive oil. (Office action, 4/22/15). Thus, the goods are complementary in
nature. See In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ
1289, 1290 (Fed. Cir. 1984) (complementary nature of certain food items cannot be
ignored).
In view of the above, we find that the goods are related for purposes of our
likelihood of confusion determination.
As to conditions of sale, ordinary consumers would be expected to exercise nothing
more than ordinary care in purchasing food items such as hot sauce, olive oil,
balsamic vinegar and the like, which can be relatively inexpensive; indeed, such items
may even be purchased on impulse. “When products are relatively low-priced and
subject to impulse buying, the risk of likelihood of confusion is increased because
purchasers of such products are held to a lesser standard of purchasing care.” Recot
Inc. v. M.C. Becton, 54 USPQ2d at 1899; Specialty Brands, Inc. v. Coffee Bean
Distributors, Inc., 748 F.2d 669, 223 USPQ 1281, 1282 (Fed. Cir. 1984).
The similarity between the goods, the identity of trade channels and classes of
purchasers, and the conditions of sale are factors that all weigh in favor of a finding
of likelihood of confusion between each of Applicant’s marks and Registrant’s mark.
The Marks
With respect to the du Pont factor dealing with the similarity of the marks, we
must compare the marks in their entireties as to appearance, sound, connotation and
Serial Nos. 86309975; 86309978; 86309982

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commercial impression. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting In
re E. I. du Pont de Nemours & Co., 177 USPQ at 567). “The proper test is not a side-
by-side comparison of the marks, but instead ‘whether the marks are sufficiently
similar in terms of their commercial impression’ such that persons who encounter the
marks would be likely to assume a connection between the parties.” Coach Servs.,
Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721 (citation omitted). The focus is
on the recollection of the average purchaser, who normally retains a general rather
than a specific impression of trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC, 110
USPQ2d 1734, 1740 (TTAB 2014); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106
(TTAB 1975).
We find that each of Applicant’s marks is similar to Registrant’s mark DIVINA.
We will compare the marks individually.

LA DIVINA ICH (in standard characters)
We first compare Applicant’s mark LA DIVINA ICH in standard characters to
Registrant’s mark DIVINA in standard characters. Both marks include DIVINA,
which comprises the entirety of Registrant’s mark. Thus, to that extent, the marks
are similar in sound and appearance.
As to meaning, the present applications and cited registrations indicate the term
“divina” translates to “divine” in English. (www.collinsdictionary.com; 4 TTABVUE
21). In turn, the word “divine” is defined as “supremely good or beautiful; magnificent;
Serial Nos. 86309975; 86309978; 86309982

11

extremely pleasant; having the nature of or being a deity; superhuman; godlike.”
(www.ahdictionary.com; 4 TTABVUE 23). The term “la divina” is translated to “the
divine” in English.
Although Spanish, Portuguese and Italian-speaking purchasers may perceive
some specific or subtle difference in meaning between “divina” and “la divina,” we
find that the addition of the article “la” does not distinguish the marks in a
meaningful way. See Thor Tech, 90 USPQ2d 1634, 1635 (TTAB 2009) (WAVE and
THE WAVE “are virtually identical. The addition of the word ‘The’ at the beginning
of the registered mark does not have any trademark significance. ‘The’ is a definite
article. When used before a noun, it denotes a particular person or thing … Thus, as
used in the registered mark THE WAVE, the word ‘The’ simply emphasizes the word
‘Wave.’” (citations omitted)).
Further, the presence in Applicant’s mark of the term ICH which, according to
Applicant, has no meaning, also does not serve to distinguish the marks in a
meaningful fashion in terms of sound, appearance and meaning. That is, this term
does not otherwise change the commercial impression of the LA DIVINA portion of
Applicant’s mark. Although the Examining Attorney posits that ICH may be
perceived as “a model or product code, or other non-source identifying element” (13
TTABVUE 7), there is no evidence to show one way or the other how purchasers
would perceive ICH. This lack of meaning, coupled with its presence as the last
portion of Applicant’s mark, diminishes the role that the term ICH plays in the
source-identifying function of Applicant’s mark.
Serial Nos. 86309975; 86309978; 86309982

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Given that the similarities between the marks in sound and appearance outweigh
any possible subtle difference in meaning, the marks engender similar overall
commercial impressions. Further, as stated above, we bear in mind that the “marks
‘must be considered … in light of the fallibility of memory …,’” In re St. Helena Hosp.,
774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014), and that the proper focus is
on the recollection of the average customer, who retains a general rather than specific
impression of the marks. Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d
1424, 1430 (TTAB 2013). In this case, the marks LA DIVINA ICH and DIVINA, both
in standard characters, are confusingly similar.

For the same reasons as expressed above, we find that Applicant’s mark and
Registrant’s mark are similar. As depicted in Applicant’s special form mark, the term
DIVINA takes on even more prominence, as it is in a larger font size and bolder script
than the remainder of the mark. Moreover, the ICH portion of the mark is in a very
small font relative to the DIVINA portion. The stylization of Applicant’s mark is
insufficient to distinguish it from Registrant’s mark in standard characters. Because
Registrant’s mark is presented in standard characters, Registrant is not limited to
any particular depiction of its mark. Thus, Registrant is entitled to all depictions of
its standard character mark regardless of the font style, size, or color; Registrant’s
mark could at any time in the future be displayed in a manner similar to the stylized
font of Applicant’s mark, that is, the words displayed in the same font style and size.
Serial Nos. 86309975; 86309978; 86309982

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In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909-10 (Fed. Cir. 2012);
Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d 1344, 98 USPQ2d 1253,
1259 (Fed. Cir. 2011). See Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939
(Fed. Cir. 1983) (rejecting argument that a mark in standard character format (typed)
is distinct from a mark in a logo format; “[b]y presenting its mark in a typed drawing,
a difference cannot legally be asserted by that party” (emphasis in original)).
Accordingly, we again find that the marks are similar in appearance and sound.
As to any difference in meanings, it is unlikely to have any meaningful impact on the
perceptions of purchasers, if they even appreciate the difference. Taking into account
the similarities between the marks, we find that Applicant’s mark LA DIVINA ICH
in special form and Registrant’s mark LA DIVINA in standard characters engender
similar overall commercial impressions. We conclude that these marks are
confusingly similar.

For the same reasons as discussed above, we find that this mark of Applicant’s is
similar to Registrant’s mark DIVINA in standard characters. The wording “Salsa
Picante” translates into English as “Hot sauce.” (www.collinsdictionary.com).12 As

12 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac
v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have regular
Serial Nos. 86309975; 86309978; 86309982

14

such, it has properly been disclaimed. Although marks must be considered in their
entireties, it is 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 mark’s commercial impression. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“There is nothing improper in stating that,
for rational reasons, more or less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on consideration of the marks in their
entireties. Indeed, this type of analysis appears to be unavoidable.”). In view of the
generic nature of the disclaimed wording SALSA PICANTE, which also appears in
smaller font, the remaining wording LA DIVINA ICH clearly is the dominant portion
of Applicant’s mark. This portion is dominated, in turn, by the LA DIVINA portion.
See, e.g., In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir.
1997) (“DELTA,” not the disclaimed generic term “CAFE,” is the dominant portion of
the mark THE DELTA CAFE).
Applicant’s and Registrant’s marks are similar in sound and appearance to the
extent that both share the common portion DIVINA. In Applicant’s mark, the
DIVINA portion is in a larger font size and a bolder script than the remainder of the
mark. Even taking into account any minor difference in meaning, the marks convey
overall commercial impressions that are similar. Accordingly, we conclude that these
marks are confusingly similar.

fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). See In re Thomas
White Int'l Ltd., 106 USPQ2d 1158, 1160 n.1 (TTAB 2013).
Serial Nos. 86309975; 86309978; 86309982

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Alleged Weakness of Registrant’s Mark
The crux of Applicant’s appeal centers on its argument that Registrants’ marks
are weak, and that the scope of protection given to the cited registrations does not
extend to the present applications.13 In this connection, Applicant relies upon two
third-party uses of the phrase “the food is divine” in two foreign restaurant reviews
written by two foreign individuals, and appearing on the website Tripadvisor.
(Request for Reconsideration, 9/14/15). Applicant argues:
DIVINA means tasty, good … Applicant must therefore
argue strongly against the grant of a monopoly to one
company that sells processed food products, mostly,
vegetables, over said term when applicant must also have
the right to tell its customers that its hot sauce is DIVINA
or DIVINE. … Clearly, this term is not arbitrary as applied
to food product[s]. It is laudatory and descriptive because
it indicates the food products are DIVINE, GOOD,
WONDERFUL, DELIGHTFUL. This is a descriptive,
self[- ]laudatory term. As such it is an extremely weak
mark as applied to food products. Applicant cannot be
denied the right to tell its consumers and clients that its
products are divine. This is not a term that can be
monopolized by one entity as applied to food products. …
Again, the owner of the cited registration has the right to
tell its consumers that its goods are divine and so does
applicant.
(11 TTABVUE 6-7).

13 We stop short of construing Applicant’s remarks as an impermissible attack (mere
descriptiveness) on the cited registrations. In any event, Section 7(b) of the Trademark Act,
15 U.S.C. § 1057(b), provides that a certificate of registration on the Principal Register shall
be prima facie evidence of the validity of the registration, of the registrant's ownership of the
mark and of the registrant's exclusive right to use the mark in connection with the goods
and/or services identified in the certificate. During ex parte prosecution, including an ex parte
appeal, an applicant will not be heard on matters that constitute a collateral attack on the
cited registration. In re Dixie Rests., Inc., 41 USPQ2d at 1534; In re Peebles Inc., 23 USPQ2d
1795, 1797 n.5 (TTAB 1992). See TMEP § 1207.01(d)(iv) (2016).
Serial Nos. 86309975; 86309978; 86309982

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Applicant further relies upon the coexistence of the cited registrations, which are
owned by two different entities.
Suffice it to say, the two uses of “divine” by foreign individuals in connection with
their reviews of foreign restaurants hardly establish that Registrant’s mark DIVINA
is weak. The record is devoid of any marketplace evidence to show that relevant
American consumers are accustomed to seeing the word “divine” used to describe food
products, and that they would be likely to perceive the word as not inherently
distinctive. The dictionary definitions show that “divine” may be somewhat
complimentary when used in connection with food products, but the evidence falls
short of showing that the term is anything less than inherently distinctive. At worst,
based on the record, the term is suggestive of Registrant’s goods.
Insofar as the coexistence of the registrations is concerned, we are not persuaded
by this argument. First, the two Registrants’ goods and services are different. Second,
even assuming that the evidence established weakness of the cited mark, even weak
marks are entitled to protection against Applicant’s attempt to register a similar
mark for similar goods. See Giant Food Inc. v. Roos and Mastacco, Inc., 218 USPQ at
526; Hunt Control Systems Inc. v. Koninklijke Philips Electronics N.V., 98 USPQ2d
1558, 1567-68 (TTAB 2011) (quoting King Candy Co. v. Eunice King's Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974)).
We have carefully considered all of the evidence made of record pertaining to the
issue of likelihood of confusion, as well as all of the arguments related thereto,
including any not specifically discussed in this opinion. We conclude that purchasers
Serial Nos. 86309975; 86309978; 86309982

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familiar with Registrant’s olive oil, balsamic vinegar, sea salt and the like sold under
the mark DIVINA would be likely to mistakenly believe, upon encountering each of
Applicant’s LA DIVINA ICH marks (in standard characters and in special form) for
hot sauce, that the goods originated from or are associated with or sponsored by the
same entity.
Decision: The refusal to register is affirmed.