Merelinda Farms, L.L.C.v.The American Breeders Co-op

Trademark Trial and Appeal Board

Oct 1, 2009

No. 91167038 (T.T.A.B. Oct. 1, 2009)

Mailed:
1 October 2009
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Merelinda Farms, L.L.C., d/b/a
Alpaca.com, LLC
v.
The American Breeders Co-op a/k/a
The Alpaca Breeders Co-op.
_____

Opposition No. 91167038
to application Serial No. 76473156
_____

Joan H. Lowenstein of Jaffe, Raitt, Heuer & Weiss P.C. for
Merelinda Farms, L.L.C., d/b/a Alpaca.com, LLC.

Arnold S. Weintraub of The Weintraub Group, P.L.C. for The
American Breeders Co-op a/k/a The Alpaca Breeders Co-op.
______

Before Drost, Cataldo, and Taylor, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On December 9, 2002, applicant American Breeders Co-op
a/k/a The Alpaca Breeders Co-op applied to register on the
Principal Register the mark I LOVE ALPACAS (typed form) for
services identified as follows:
Online marketing of alpacas, namely, dissemination of
advertising for others via a global network and via
electronic mail over a global computer network in Class
35.

THIS OPINION IS NOT
A PRECEDENT OF THE
TTAB
Opposition No. 91167038
2
Serial No. 76473156. The application contains an allegation
of a date of first use and first use in commerce of December
31, 2001 and a disclaimer of the term “Alpacas.”
On October 12, 2005, Merelinda Farms, L.L.C., d/b/a
Alpaca.com, LLC (opposer) filed a notice of opposition to
the registration of applicant’s mark. Ultimately, opposer
alleges that applicant’s mark is confusingly similar to its
following registered trademarks (15 U.S.C. § 1052(d)):
I.
No. 2814915
Issued: February 17, 2004
I LOVE ALPACA.COM

For:
Appliques in the form of decals, appointment
books, coloring books, autograph books, baby books,
address books, photograph albums, books in the field of
entertainment, namely cross word puzzle books
concerning alpacas, calendars, playing cards, gift
cards, greeting cards, cartoons, pen and pencil cases,
paper napkins, periodicals in the field of
entertainment, namely, magazines concerning grooming,
care of, history of alpacas and current information
about alpacas and alpaca products, pens, pencils,
stationery, stickers, posters, writing paper,
envelopes, paper coasters, paper mats, newspapers in
the field of entertainment, namely newsletters
concerning the auction of alpacas and alpaca products,
photographs, postcards, trading cards and paper signs
in Class 16
Mugs in Class 21
Filing Date: November 20, 2001

II.
No. 2702641
Opposition No. 91167038
3

Issued: April 1, 20031
I LOVE ALPACA.COM L.L.C. (typed)
For:
Appliques in the form of decals, appointment
books, coloring books, autograph books, baby books,
address books, photograph albums, books in the field of
entertainment, calendars, playing cards, gift cards,
greeting cards, cartoons, pen and pencil cases, paper
napkins, periodicals in the field of entertainment,
pens, pencils, stationery, stickers, posters, writing
paper, envelopes, paper coasters, paper mats,
newspapers in the field of entertainment, photographs,
postcards, trading cards, paper signs in Class 16
Mugs in Class 21
Clothing, namely, t-shirts and sweatshirts in
Class 25
Filing Date: November 19, 2001
Disclaimer: L.L.C.

III.
No. 3232319
Issued: April 24, 2007
I LOVE ALPACA.COM

For: Clothing made in whole or significant parts of
alpaca fleece, namely, shirts, tops, sweatshirts,
pants, coats, capes, capelets, and socks in Class 25
Filing Date: November 20, 2001

IV.
No. 2731217
Issued: July 1, 2003 (Section 8 & 15 affidavits)
ALPACA.COM

1 USPTO electronic records do not indicate that any affidavit
under Section 8 has been filed.
Opposition No. 91167038
4

For:
Online retail services featuring alpaca clothing,
alpaca accessories, farm supplies and equipment, home
products, namely, blankets, pillows, throws, statues
and plaques, jewelry, stuffed animals, yarn, and live
animals; retail outlets featuring alpaca clothing,
alpaca accessories, farm supplies and equipment, home
products, namely, blankets, pillows, throws, statues
and plaques, jewelry, stuffed animals, yarn and live
animals; mail order catalog services featuring alpaca
clothing, alpaca accessories, farm supplies and
equipment, home product[s], namely, blankets, pillows,
throw, statues and plaques, jewelry, stuffed animals,
yarn, and live animals; telephone order-taking services
for other; promoting the goods and services of other[s]
by providing hypertext links to the web sites of
others, by placing advertisements for others at trade
shows and through the distribution of discount cards;
providing information about the goods and services of
others via the global computer network; and
distributorship in the field of alpaca clothing, alpaca
accessories, farm supplies and equipment, home
products, namely, blankets, pillows, throws, statues
and plaques, jewelry, stuffed animals, yarn and live
animals in Class 35.
Alpaca husbandry, alpaca breeding and stud
services, and consultation in the field of the care,
breeding and uses of alpacas in Class 44.
Filing Date: May 7, 2001
Disclaimer: “a realistic depiction of an alpaca”
Description: The mark consists of the words
“ALPACA.COM” and a sequential loop of alpaca images
that dissolve from one made in the sequence to the next
image in the sequence. The sequence of alpaca images
consist of (1) a picture of the head of an alpaca, (2)
a shaded outline of a standing alpaca, (3) a piece of
alpaca-shaped jewelry, and (4) a picture of a group of
Opposition No. 91167038
5
standing alpacas. The stippling is for shading
purposes only.2

Applicant denied the salient allegations of opposer’s
notice of opposition.
The Record
The record consists of the pleadings; the file of the
involved application; the declaration of Linda Davis,
opposer’s managing partner with exhibits; the declaration of
Marilyn Nishitani, an alpaca breeder; the declaration of
David Oppenhutzen, one of applicant’s attorneys, with
exhibits; the declaration of Jerry Forstner, applicant’s
director; and copies of printouts of various registrations
and an application owned by opposer.
Preliminary Matters
On July 10, 2009, the board issued an order that
discussed the result of a telephone conference with the
parties.
The parties stipulated during the telephone conference
that they would proceed under the ACR [Accelerated Case
Resolution3] process and that opposer’s filing [Motion
for Summary Judgment] would be considered as the
opening filing of that process. The parties also
agreed to a schedule suggested by the Board for
additional submissions that would be sufficient to
render the case ready for final decision…

Because the parties have, in essence, agreed to create
the record for this case by their cross submissions,

2 We have inserted the drawing from the file, which is clearer
than the drawing in the USPTO’s electronic search system.
3 Information regarding ACR is available on the United States
Patent and Trademark Office (USPTO) website at
www.uspto.gov/web/offices/com/sol/notices/acrognoticerule.pdf.
Opposition No. 91167038
6
testimony will be presented by affidavit or
declaration, and any exhibits referenced by the
affiants or declarants. The parties may also submit,
as attachments or exhibits to their briefs, any
materials that, in a typical trial, could be submitted
by notice of reliance, without need for such materials
to be accompanied by notice of reliance…

[T]he parties agreed that the record and arguments
created by utilization of the ACR process would be the
entire record and that the Board may resolve any
genuine issues of material fact that would be necessary
to the Board’s resolution of the case on its merits…

[O]pposer agreed that its case is limited to its
argument and evidence bearing on its likelihood of
confusion claim under Section 2(d) of the Trademark
Act…

Order at 2-5.

Therefore, we will consider Opposer’s Motion for
Summary Judgment (Opposer’s Brief), the Supplement to
Opposer’s Motion for Summary Judgment (Opposer’s Supp.
Brief), Applicant’s Cross-Motion for Summary Judgment
(Applicant’s Brief), Opposer’s Rebuttal to Applicant’s
Cross-Motion for Summary Judgment (Rebuttal Brief) and the
evidence attached to those filings as the ACR record. See,
e.g., Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d
1511, 1513 (TTAB 2009) (Parties stipulated, inter alia, that
evidence submitted with motion for summary judgment filings
and briefs on the merits would form the basis for the record
at trial pursuant to ACR).
We also note that: “As Merelinda Farms argued and
American Breeders has not disputed, priority of use is
irrelevant because Merelinda Farms bases its Opposition on
Opposition No. 91167038
7
its ownership of registered trademarks. Moreover, the
filing dates of Opposer’s registered marks precede the
filing date of Applicant’s proposed mark by more than one
year and this is not in dispute.” Rebuttal Brief at 2
(citation omitted).
We add that opposer, as plaintiff in the opposition
proceeding, bears the burden of proving, by a preponderance
of the evidence, its asserted grounds of priority and
likelihood of confusion. See Cerveceria Centroamericana,
S.A. v. Cerveceria India Inc., 892 F.2d 1021, 13 USPQ2d
1307, 1309 (Fed. Cir. 1989); Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842, 1848 (Fed. Cir. 2000).
Opposer has attached copies of its registrations and
applicant has treated them as being of record. Because of
opposer’s proof of ownership of its registered marks that
set out a likelihood of confusion claim that is not without
merit, we find that opposer has established its standing to
oppose.4 See, e.g., Lipton Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
Also, priority is not an issue here, because of opposer’s

4 Also, inasmuch as there is no counterclaim to cancel any of
opposer’s registrations, we cannot entertain applicant’s argument
(Brief at 11) that opposer “has made only ‘token’ use of these
marks, these marks are not even presently being used on Melinda
Farms’ webpages.” Contour Chair-Lounge Co. v. The Englander Co.,
324 F.2d 186, 139 USPQ 285, 287 (CCPA 1963) (“The next point is
that this is an opposition only and in an opposition, this court
has always held, the validity of the opposer’s registrations are
not open to attack”).
Opposition No. 91167038
8
ownership of these registrations. See King Candy Co. v.
Eunice King’s Kitchen, 496 F.2d 1400, 182 USPQ 108, 110
(CCPA 1974).
Likelihood of Confusion
We now turn to the issue of whether there is a
likelihood of confusion. We consider the evidence of record
in light of the thirteen factors involving likelihood of
confusion set out by the Court of Appeals for the Federal
Circuit and its predecessor, the Court of Customs and Patent
Appeals, in such cases as In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203
(Fed. Cir. 2003); and, Recot, Inc. v. Becton, 214 F.3d 1322,
54 USPQ2d 1894, 1896 (Fed. Cir. 2000).
The first relevant factor is the similarities and
dissimilarities of applicant’s and opposer’s marks. We must
consider the similarities and dissimilarities of the marks
in their entireties as to their appearance, sound, meaning,
and commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005). Applicant’s mark is for
the words I LOVE ALPACAS in typed form. Opposer’s
registrations consist of two registrations for the words I
LOVE ALPACA.COM and a heart and alpaca design; one
registration for the typed mark I LOVE ALPACA.COM L.L.C.;
Opposition No. 91167038
9
and one for the design of four alpacas and the words
ALPACA.COM in small print. Applicant has disclaimed the
term “Alpacas” and opposer has disclaimed the abbreviation
“L.L.C.” and the realistic depiction of an alpaca. We note
that opposer’s goods and services include “clothing made in
whole or significant parts of alpaca fleece” (‘319
registration), “magazines concerning grooming, care of,
history of alpacas and current information about alpacas and
alpaca products” (‘915 registration) and “online retail
services featuring alpaca clothing, alpaca accessories” in
Class 35 and “alpaca husbandry” in Class 44 (‘217
registration). Inasmuch as applicant’s and opposer’s
services concern alpacas and many of opposer’s goods also
involve alpaca-related item, the term “Alpaca” is not very
distinctive for these goods and services.5 In addition, the
“.com” feature of opposer’s mark is also not very
distinctive.
However, on the entirety of the evidence before the
TTAB, and with cognizance of the standard and burden of
proof borne by the PTO, the TTAB could reasonably have
given controlling weight to the large number of similar
usages of “hotels” with a dot-com suffix, as well as
the common meaning and dictionary definition of
“hotels” and the standard usage of “.com” to show a
commercial internet domain. We conclude that the Board
satisfied its evidentiary burden, by demonstrating that

5 We note that applicant has submitted copies of numerous
registrations for the term “alpaca,” mostly for alpaca-related
goods and services. They almost always disclaim the term
“alpaca.” These registrations do not involve the words “I Love”
or a heart design and they would not indicate that opposer’s
Ilovealpaca.com marks in their entireties are weak.
Opposition No. 91167038
10
the separate terms “hotel” and “.com” in combination
have a meaning identical to the common meaning of the
separate components. The Board’s finding that HOTELS.
COM is generic was supported by substantial evidence.

In re Hotels.com LP, 573 F.3d 1300, 91 USPQ2d 1532, 1537
(Fed. Cir. 2009). In re Oppedahl & Larson LLP, 373 F.3d
1171, 71 USPQ2d 1370, 1374 (Fed. Cir. 2004) (“The addition
of a TLD such as ‘.com’ or ‘.org’ to an otherwise
unregistrable mark will typically not add any source-
identifying significance”).
Considering that the only similarity between the
parties’ I LOVE ALPACAS and the ALPACA.COM and alpaca design
mark is the word “Alpaca” and the services involve alpaca-
related goods and services, we find that these marks are
dissimilar. Kellogg Co. v. Pack’em Enterprises Inc., 951
F.2d 330, 21 USPQ2d 1142, 1144 (Fed. Cir. 1991):
As the Board noted, the marks are dissimilar in
appearance. Pack’em’s mark consists of the words
“FROOTEE ICE” in script lettering and an elephant
design. Kellogg’s mark consists of two different
words, “FROOT LOOPS” in plain capital letters. As the
Board pointed out, the “only similarity” between the
marks is that one “begins with the word ‘FROOT’ and the
other with the word ‘FROOTEE.’” The marks also sound
different and create different commercial impressions.

See also Keebler Co. v. Murray Bakery Products, 866 F.2d
1386, 9 USPQ2d 1736, 1739-40 (Fed. Cir. 1989) (“Keebler’s
argument (3) seizes on the board’s perfectly proper notation
of dissimilarities in ‘SANDIES’ and ‘SHORTEES’ and ignores
the board’s statements reflecting its consideration of the
marks in their entireties (‘that the more important fact for
Opposition No. 91167038
11
resolving the issue of likelihood of confusion in this case
is the dissimilarity in commercial impression between the
marks ‘PECAN SANDIES’ and ‘PECAN SHORTEES’’; ‘these marks,
in their entireties’ do not convey similar commercial
impressions)”).
We reach the opposite result when we view applicant’s
mark and the other three registrations. Here, the marks
contain the identical words I LOVE ALPACA although
applicant’s mark is the plural of the word “alpaca.” There
is normally no significant difference between using the
singular or plural form of a word in a mark. Wilson v.
Delauney, 245 F.2d 877, 114 USPQ 339, 341 (CCPA 1957) (“It
is evident that there is no material difference, in a
trademark sense, between the singular and plural forms of
the word ‘Zombie’ and they will therefore be regarded here
as the same mark”). See also Chicago Bears Football Club
Inc. v. 12TH Man/Tennessee LLC, 83 USPQ2d 1073, 1077 (TTAB
2007 (“Furthermore, we cannot attribute much trademark
significance to the difference in the plural and singular
form of the word ‘Bear’ in the marks”). The only other
differences between the marks I LOVE ALPACAS and I LOVE
ALPACA.COM is the presence of the “.com” in opposer’s marks,
which indicates a website. Two of opposer’s marks also add
a heart and alpaca design which would reinforce the words “I
love alpaca” with the heart representing love and the alpaca
Opposition No. 91167038
12
indicating the object of the love. It is unlikely that many
consumers would use the disclaimed term “L.L.C.,” which
simply indicates the type of entity applicant is, to
distinguish the marks. In re Chatam International Inc., 380
F.3d 1340, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (“With
respect to GOLD, the Board determined that the term denotes
a premium quality, a descriptive term offering little to
alter the commercial impression of the mark. Indeed, GOLD,
in the context of tequila, describes either a characteristic
of the good - its color - or a quality of the good
commensurate with great value or merit. In sum, the Board
had good reason to discount ALE, JOSE, and GOLD as
significant differences between the marks”) (citations
omitted); and In re Dixie Restaurants, Inc., 105 F.3d 1405,
41 USPQ2d 1531, 1534 (Fed. Cir. 1997) (Federal Circuit held
that, despite applicant’s addition of the words “The” and
“Cafe” and a diamond-shaped design to registrant’s DELTA
mark, there was a likelihood of confusion with registrant’s
DELTA mark). Accord In re Patent & Trademark Services Inc.,
49 USPQ2d 1537, 1539 (TTAB 1998) (The “inclusion of the term
‘Inc.’ indicates that the mark is referring to a corporation
that is the source of the services, and not merely to a
service provided by that corporation. We agree with the
Examining Attorney, however, that the term ‘Inc.’ in
applicant’s mark does not serve to identify the source of
Opposition No. 91167038
13
applicant's services but rather merely indicates the type of
entity which performs the services, and thus has no service
mark significance”). The marks I LOVE ALPACAS and I LOVE
ALPACA.COM look and sound very similar. Regarding their
meaning and commercial impression, we also find that, for
many consumers, they would have a very similar meaning of an
expression of love for the alpaca. We note that there could
be a slight difference because some may view opposer’s mark
as an expression of love for the website Alpaca.com, while
applicant’s mark would be directed toward the alpaca animals
themselves. It is unlikely that this would be the reaction
of most consumers. Consumers are likely to see that the
mark I LOVE ALPACAS and the mark I LOVE ALPACA.COM are
simply marks associated with the same source. Thus, the
parties’ marks are very similar. CBS Inc. v. Morrow, 708
F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“[M]inor
design features do not necessarily obviate likelihood of
confusion arising from consideration of the marks in their
entireties. Moreover, in a composite mark comprising a
design and words, the verbal portion of the mark is the one
most likely to indicate the origin of the goods to which it
is affixed”).
Next, we must consider whether the parties’ goods and
services are related. We must compare the goods and
services as they are described in the application and the
Opposition No. 91167038
14
registrations in determining whether there is a likelihood
of confusion. Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990) (“The authority is legion that the question of
registrability of an applicant’s mark must be decided on the
basis of the identification of goods set forth in the
application regardless of what the record may reveal as to
the particular nature of an applicant’s goods, the
particular channels of trade or the class of purchasers to
which the sales of goods are directed”). See also Paula
Payne Products v. Johnson Publishing Co., 473 F.2d 901, 177
USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the
issue of likelihood of confusion must be decided on the
basis of the respective descriptions of goods”).
It “has often been said that goods or services need not
be identical or even competitive in order to support a
finding of likelihood of confusion. Rather, it is enough
that goods or services are related in some manner or that
circumstances surrounding their marketing are such that
they would be likely to be seen by the same persons under
circumstances which could 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 producer
or that there is an association between the producers of
each [party’s] goods or services.”

In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991). See
also Time Warner Entertainment Co. v. Jones, 65 USPQ2d 1650,
1661 (TTAB 2002).
Here, applicant’s services are “online marketing of
alpacas, namely, dissemination of advertising for others via
Opposition No. 91167038
15
a global network and via electronic mail over a global
computer network.” Opposer’s goods include “magazines
concerning grooming, care of, history of alpacas and current
information about alpacas and alpaca products” and
“newsletters concerning the auction of alpacas and alpaca
products.” We find that applicant’s services and opposer’s
goods in Registration No. 2814915 are very closely related
because applicant’s online marketing of alpacas via
disseminating advertising of others would include the
electronic version of opposer’s magazines that provide
current information about alpacas and newsletters concerning
the auction of alpacas. Current information about alpacas
includes current information about the marketing of alpacas.
See In re Cruising World, Inc., 219 USPQ 757, 758 (TTAB
1983) (“In this case we are dealing with outlet services for
yachts and marine accessories on the one hand and magazines
on the other. It is clear from its title that opposer’s
magazine is one which deals with subject matter concerning
marine type activities and interests… Thus, we see that
there is a relationship between applicant’s services and
registrant’s goods”). See also Conde Nast Publications Inc.
v. Vogue Travel, Inc., 205 USPQ 579, 583 (TTAB 1979)
(“[A]pplicant’s services are travel agency services and
travel has served as a significant, albeit not the
principle, feature of opposer’s magazine for many years.”
Opposition No. 91167038
16
VOGUE for magazine likely to cause confusion with VOGUE and
design for travel agency services); and HMH Publishing Co.,
Inc. v. Breglia, 141 USPQ 36 (TTAB 1964) (“[P]ersons
familiar with opposer’s ‘PLAYBOY’ magazine and its many
other activities and products, such as its ‘PLAYBOY LIQUOR
CADDY’ bottle holders, would logically assume, upon seeing
applicant’s ‘PLAYBOY-BAR’ home bars, that such products
either emanate from or are in some way sponsored by or
associated with opposer”).
Regarding the purchasers of these goods and services,
applicant argues:
American Breeders’ media advertisements are designed to
interest consumers in purchasing their own alpacas and
starting their own alpaca ranch as a financial
investment. As stated by Mr. Forstner in his
declaration, and corroborated by online auctions found
on Merelinda Farms’ own website, alpacas sell for an
average price of $10,000-$30,000. In addition, highly
sought after alpacas can generate a selling price of
$100,000 or more. Therefore, these are obviously very
expensive purchases which are made after thorough
deliberation, and certainly are not impulse purchases.
Furthermore, these purchases are made by sophisticated
businesspeople as an investment – not as an impulse
purchase.

Applicant’s Brief at 15 (citations to record omitted).

Opposer responds and argues that applicant has “not
provided any evidence for this assertion and, if it were
true, American Breeders would advertise in exclusive
magazines and not on television and the Internet.” Rebuttal
Brief at 4. When we consider the purchasers, we must
consider them to include all the purchasers for the goods
Opposition No. 91167038
17
and services as they are identified in the application and
registration. In re Elbaum, 211 USPQ 639, 640 (TTAB
1981)(“[W]here the goods in a cited registration are broadly
described and there are no limitations in the identification
of goods as to their nature, type, channels of trade or
classes of purchasers, it is presumed that the scope of the
registration encompasses all goods of the nature and type
described, that the identified goods move in all channels of
trade that would be normal for such goods, and that the
goods would be purchased by all potential customers”).
Opposer’s magazines that provide current information about
alpacas and newsletters about alpaca auctions and
applicant’s online marketing of alpacas by disseminating
advertising could be marketed both to sophisticated alpaca
professionals and novices that are considering raising
alpacas for a living or as a hobby. Thus, we cannot limit
the purchasers to merely sophisticated purchasers. While we
do agree with applicant that the purchase of alpacas would
be a careful purchase, the users of a website advertising
alpacas and purchasers of magazines and newsletters
concerning alpacas would not necessarily be careful.
While opposer has submitted some evidence of actual
confusion, we give this evidence little weight. It
apparently relates to opposer’s alpaca.com mark, upon which
we do not rely. Furthermore, it would require us to assume
Opposition No. 91167038
18
that when a person using opposer’s standard online contact
form checked the “radio/television” box it was because the
person saw applicant’s television commercial and associated
it with opposer who does not advertise on television. We
have no evidence that these people even saw applicant’s
commercial and they may have simply checked the wrong box or
had imperfect recall of how they learned of opposer.6
However, we point out that “the test under §1052(d) is
likelihood of confusion, not actual confusion.” Herbko
Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d
1375, 1380 (Fed. Cir. 2002). “[I]t is unnecessary to show
actual confusion in establishing likelihood of confusion.”
Giant Food, Inc. v. Nation's Foodservice, Inc., 710 F.2d
1565, 218 USPQ 390, 396 (Fed. Cir. 1983). See also J & J
Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 18
USPQ2d 1889, 1892 (Fed. Cir. 1991). We find this factor to
be neutral.
Finally, in likelihood of confusion cases, we must
resolve any doubt in favor of the registrant. Specialty
Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d
669, 223 USPQ 1281, 1285 (Fed. Cir. 1984).

6 Opposer’s witness discusses applicant’s reports that “she was
surprised to see [applicant] using the ‘Ilovealpacas.com’ domain
name.” Nishitani dec. at 2. The declarant is discussing
applicant’s domain name and not the marks and goods and services
at issue in this opposition.
Opposition No. 91167038
19
Under these circumstances, inasmuch as the marks I LOVE
ALPACAS and I LOVE ALPACA.COM and alpaca and heart design
are very similar and the services of online marketing of
alpacas, namely, dissemination of advertising for others and
opposer’s magazines concerning grooming, care of, history of
alpacas and current information about alpacas and alpaca
products and newsletters concerning alpaca auctions are
closely related, we conclude that opposer has met its burden
of showing that confusion is likely with its mark in
Registration No. 2814915.
Decision: The opposition is sustained.