National Pork Board and National Pork Producers Councilv.Supreme Lobster and Seafood Company

Trademark Trial and Appeal Board

Jun 11, 2010

No. 91166701 (T.T.A.B. Jun. 11, 2010)

Hearing: Mailed:
December 16, 2009 June 11, 2010
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

National Pork Board and National Pork Producers Council
v.
Supreme Lobster and Seafood Company
________

Opposition No. 91166701
against Serial No. 76574162
_______

Christopher P. Beall of Levine Sullivan Koch & Schulz, LLP
and John L. Beard of Faegre & Benson LLP for National
Pork Board, and David W. Grace of Loeb & Loeb LLP for
National Pork Producers Council.

Jennifer R. Quinn, Jennifer L. Zordani, Amy M. Gardner and
Ethan E. Trull of Ungaretti & Harris for Supreme Lobster
and Seafood Company.
_______

Before Bucher, Grendel and Ritchie, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Supreme Lobster and Seafood Company seeks registration
on the Principal Register of the mark THE OTHER RED MEAT
(in standard character format) for “fresh and frozen salmon”
in International Class 29.1

1 Application Serial No. 78212909 was filed on February 4,
2004 based upon applicant’s allegation of a bona fide intention
to use the mark in commerce.
THIS OPINION IS A
PRECEDENT OF THE TTAB
Opposition No. 91166701
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Registration has been opposed by National Pork Board
(NPB) and National Pork Producers Council (NPPC). As their
grounds for opposition, opposers assert that (1)
applicant’s mark when used in connection with its goods so
resembles opposers’ previously used and registered marks,
THE OTHER WHITE MEAT (in standard character format), for
“association services namely, promoting the interests of
members of the pork industry” in
International Class 422; the
“guitar pick” or “ham” design mark
shown at right, registered for
“promoting the interests of the
members of the pork industry” in International Class 35,
and “providing an Internet website featuring information
about cooking and accompanying recipes” in International
Class 433; and THE OTHER WHITE MEAT (in standard character
format), for “cookbooks, brochures about pork, pens,
pencils, crayons, bumper stickers, and stickers” in
International Class 16; shirts, t-shirts, sweatshirts,

2 Registration No. 1486548 issued to National Pork Producers
Council (NPPC) on April 26, 1988; assigned to National Pork Board
on October 10, 2006, Assignment Records, Reel 3405/Frame 0030;
renewed.

3 Registration No. 3126072 issued to National Pork Board on
August 8, 2006; this application was originally filed by National
Pork Producers Council (NPPC) on March 28, 2005.
Opposition No. 91166701
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aprons, jackets, and hats” in International Class 25, and
“providing an Internet website featuring food
preparation/cooking information regarding pork and
accompanying recipes” in International Class 434, as to be
likely to cause confusion, to cause mistake or to deceive
under Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d);
and that (2) registration of applicant’s mark will result
in a likelihood of dilution under Section 43(c) of the Act,
15 U.S.C. § 1125(c).
Applicant, in its answer, has denied the essential
allegations in the opposition.
Based upon the extensive evidence in this record, and
for reasons discussed at length below, we sustain the
opposition on the basis of a likelihood of dilution, and
choose not to make a determination as to opposers’ claim of
likelihood of confusion.
Preliminary matters
Opposers’ articles reflecting public recognition of the involved
slogan
Applicant has objected to our consideration of
Internet websites submitted through opposers’ Second Notice

4 Registration No. 3129186 issued to National Pork Board
(NPB) on August 15, 2006; this application was originally filed
by National Pork Producers Council (NPPC) on June 10, 2005.
Opposition No. 91166701
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of Reliance on the grounds that they are irrelevant and are
“unreliable.” We overrule this objection.
As to their relevance, the public’s perception of
opposers’ mark is very much at issue in this case.
Articles downloaded from the Internet are evidence of
consumer perceptions. In re Bayer Aktiengesellschaft,
488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007). As to
the admissibility of Internet documents generally, in a
case decided since applicant filed its trial brief, we held
as follows:
[I]f a document obtained from the Internet
identifies its date of publication or date
that it was accessed and printed, and its
source (e.g., the URL), it may be admitted
into evidence pursuant to a notice of
reliance in the same manner as a printed
publication in general circulation in
accordance with Trademark Rule 2.122(e).

Safer, Inc. v. OMS Investments, Inc., Opposition No.
91176445 at 18-19 (TTAB, February 23, 2009).
To the extent applicant has singled out the unreliable
nature of uncorroborated information opposers may have
drawn from “wiki-type” websites, we have considered this
argument in determining the probative value of such
evidence. In re IP Carrier Consulting Group, 84 USPQ2d
1028, 1032 (TTAB 2007). By contrast, an electronically-
generated document which is the equivalent of the printed
Opposition No. 91166701
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form of a publication or official record is treated the
same as the printed publication or official record under
Rule 2.122(e). See Weyerhaeuser v. Katz, 24 USPQ2d 1230,
1232 (TTAB 1992); and TBMP § 704.08 (2d ed. rev. 2004).5
The testimony of Becca Hendricks and accompanying evidence
of tracking studies
Applicant has objected to the testimony of Becca
Hendricks and exhibits regarding almost twenty years of
opposers’ annual tracking surveys submitted as exhibits to
that testimony, on the ground that Ms. Hendricks is
unqualified to offer expert testimony, that she failed to
demonstrate the reliability of these studies, and her
testimony will not assist the trier of fact.
It should be noted that these year-to-year tracking
studies of consumers’ perceptions of opposers’ promotional
campaigns were performed long before this litigation arose.
Ms. Hendricks, Mr. Meimann and Dallas Hockman, NPB’s former
vice president for demand enhancement, all testified that
these tracking studies were NPB’s regularly-kept business
records that opposers actually relied upon for measuring
the benefits and performance of their advertising programs,

5 We note that opposer has introduced these publications to
show only the fact that the involved marks appear within the
publications, and there is, therefore, no hearsay problem.

Opposition No. 91166701
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managing and planning their programs, communicating the
benefits of promotional campaigns back to key stakeholders,
and even for purposes of governmental oversight.
[Hendricks at 21-22, 102-103; Hockman at 21-24; and Meimann
at 51-56] Under the Federal Rules of Evidence, Rule
803(6), we fully credit the testimony of Ms. Hendricks as
we find that she was the appropriate custodian of opposers’
records relating to these studies because she was the
person responsible for working directly with the firms that
performed the surveys. Opposers never put her forward as
an expert witness having specialized expertise on the
intricacies of the survey methods. Therefore, we have
considered the business records that opposers have
submitted and the testimony of Ms. Hendricks to the extent
that she testified to events occurring during her
employment with opposers, and on matters about which she
had direct, personal knowledge.6

6 Moreover, Ms. Hendricks provided sufficient foundational
testimony to show that to the extent she may not have had first-
hand knowledge of opposers’ business records outside her tenure,
she testified that she had learned about the history of the
tracking studies, had reviewed underlying documents and spoke
with other employees who had been with opposers prior to her
tenure. We find that she was sufficiently competent and
trustworthy to testify on the issues before her, and applicant
has presented no evidence that her testimony was untruthful or
unreliable. See Crash Dummy Movie LLC v. Mattel Inc., 601 F.3d
1387, 94 USPQ2d 1315, 1317 (Fed. Cir. 2010).

Opposition No. 91166701
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As to the probative value of these tracking studies,
each of these lengthy reports produced by the consulting
firms that conducted the studies contains extensive
information concerning the methodology of the survey, the
survey questionnaire used, and information on the
demographics of the respondents questioned. [See Ex. 274a
and Hendricks at 62-65]. We find these studies probative
to the extent that they corroborate the results of the
later “Northwestern Study” and Klein Dilution Survey, both
of which we do subject to the rigors of the Daubert test.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 27 USPQ2d 1200 (1993).
Applicant’s articles discussing USDA’s alleged failures to
prevent tainted meats from going to market
NPB has objected to more than two-hundred printed
publications attached to applicant’s First Notice of
Reliance and Exhibits 1 through 7 of applicant’s Sixth
Notice of Reliance on the grounds that they are irrelevant
to the issues involved herein and also that they constitute
inadmissible hearsay with respect to the truth of the
matters contained therein.
As to their relevance, we agree with opposers that
these articles are irrelevant because none of the articles
makes any reference to either of the opposers or to the
Opposition No. 91166701
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public’s perception of opposers’ mark, THE OTHER WHITE MEAT,
which is the issue in this case. The bulk of these stories
are irrelevant because they deal with beef, not pork.
Additionally, we give these printed publications no
consideration because NPB’s control over the quality of
pork products sold by its licensees is not a relevant issue
in this case. NPB has no obligation to control the quality
of pork sold by licensees who make use of NPB’s promotional
slogan. Rather, the focus is on the quality control that
NPB maintains over its licensees’ promotional activities
when they use the slogan, THE OTHER WHITE MEAT. [Meimann at
75-78; Hendricks at 10-11; Ex. 262]7
As to opposers’ hearsay objection, these hundreds of
printed publications cannot be admitted for the truth of
the matters described in the materials (e.g., applicant’s
attempt to show that USDA has failed to keep tainted meats
off the market). In re Omaha Nat’l Corp, 819 F.2d 1117,
2 USPQ2d 1859, 1860 (Fed. Cir. 1987) [copies of newspaper
articles may be used only to show descriptive use of the
term at issue]; Gravel Cologne, Inc. v. Lawrence Palmer,

7 To the extent that these publications are being offered to
support applicant’s theory of “naked licensing” by NPB, we have
already held that they will not be considered in this proceeding.
See our Order of September 29, 2008 on applicant’s motion to
amend.

Opposition No. 91166701
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Inc., 469 F2d 1369, 176 USPQ 123, 123 (CCPA 1972) [printed
publication offered for the truth of the matters contained
therein is inadmissible hearsay]; Harjo v. Pro-Football
Inc., 50 USPQ2d 1705, 1721 n50 (TTAB 1999), rev’d on other
grounds, 284 F.Supp.2d 96, 98 USPQ2d 1225 (D.D.C. 2003);
Logicon, Inc. v. Logisticon, Inc., 205 USPQ 767, 768 n6
(TTAB 1980) [copy of a magazine article is admissible only
for what it shows on its face and not the truth of the
matters described therein].
Accordingly, we have given no consideration to
applicant’s First Notice of Reliance, with its attached
exhibits, or Exhibits 1 through 7 of applicant’s Sixth
Notice of Reliance.8
Third-party usage of THE OTHER WHITE MEAT
Applicant alleges that opposers have not adequately
monitored the use of their slogan, “The Other White Meat.”
As one demonstration of this, applicant has submitted
testimony from Roy Sharp as well as a certified copy of the
following mark [Registration No. 1644516 issued to Roy

8 We note further, in response to applicant’s continuing
arguments, that opposers’ objections to these publications are
rooted in questions of relevance and hearsay objections, not the
fact that the copies of the publications are drawn from
“electronic sources” rather than from more traditional “printed”
publications.

Opposition No. 91166701
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Sharp, Inc. on May 14, 1991], containing the slogan
opposers claim as theirs, namely, “The Other White Meat,”
registered in connection with “processed and packaged
pork”:
9
We have not considered this registration inasmuch as
it was cancelled under Sec. 8 of the Trademark Act in
November 1997, and a cancelled registration has no
evidentiary value as to the scope of protection to be
afforded to opposers’ claimed marks. See Action Temporary
Services Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d
1307, 1309 (Fed. Cir. 1989) [“a cancelled registration does
not provide constructive notice of anything”].
Moreover, we agree with opposers that to consider Roy
Sharp’s testimony and accompanying exhibits as part of this
record, would result in consideration of a collateral

9 In the application which resulted in that registration, the
applicant made no claim to the right to use the words “California
Fresh,” “Pork,” “The Other White Meat” and "All Natural” apart
from the mark as shown.

Opposition No. 91166701
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attack on the validity of NPB’s service mark registrations
– an attack that we have already rejected in our Order of
September 29, 2008.10
Similarly, as to use of this slogan by state and
regional pork producer associations, opposers have
clarified that pursuant to the Pork Act, this slogan is
promoted through advertising purchased by these related
industry organizations that also receive up to twenty
percent of the total Pork Checkoff11 funds each year.
[Meimann at 14-15, 66-68; Williams-I at 62-63, 113-114;
Hockman at 82-85] All of the marketing activities that
display the mark THE OTHER WHITE MEAT are supervised by NPB.
[Meimann at 15, 64-66; Exs. 57, 58, 59, 60, 296 at 10] In
fact, this testimony actually supports a finding of the

10 Given that this testimony and evidence is irrelevant and
inadmissible, we do not need to discuss the limited probative
value this material would have even if it were relevant and
admissible. We note that (i) the record contains no indication
that opposers even knew of this label; (ii) Mr. Sharp served as a
former member of both of opposers’ boards, and continued to be
supportive of both; (iii) he voluntarily disclaimed the term;
(iv) his label used the informal trademark notification symbol (™)
to identify the slogan then as being NPPC’s mark, and finally; (v)
his testimony was vague about how extensively this label was
actually used in the early 1990’s. [Sharp at 47-56, Ex. 402 and
403]

11 This is an assessment designed to promote the consumption
of pork and pork products in the United States derived from a fee
on all hogs sold in the United States. More discussion of this
funding in the text of the opinion infra under the heading
“Opposers.”

Opposition No. 91166701
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enhanced goodwill and subsequent renown of the mark used by
opposers, rather than detracting in any way from the value
of the repeated and consistent exposure of opposers’
slogan.
Accordingly, we find no compelling evidence in the
record of third-party usage of this term in a manner that
suggests opposers were anything but vigilant in policing
their exclusive rights in this slogan.
Testimony and evidence about “Northwestern Study” and Klein
Dilution Survey
Applicant has also asked that we bar from the record
the results of two separate surveys and the supporting
testimony of Dr. Anders Gronstedt and Dr. Robert Klein.
However, we find this evidence and expert testimony to be
relevant and reliable, and therefore it meets the threshold
of Rule 702 of the Federal Rules of Evidence and the
framework set out in Daubert v. Merrell Dow
Pharmaceuticals, Inc. To the extent applicant’s claims of
unreliability go to the alleged weaknesses in the survey
design, implementation or subsequent analysis, it does not
go to its admissibility but to its weight – an important
topic we will discuss infra at 27-36.
Opposition No. 91166701
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The Record
In addition to the pleadings, the file of opposed
application Serial No. 76574162 [the ‘162 application] is
part of the record without any action by the parties.
Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b).
Additionally, opposers introduced the following evidence:
(i) Opposers’ notices of reliance on (a) printed
publications showing third-party references to, and
public awareness of, the mark THE OTHER WHITE MEAT; (b)
copies showing status and title of opposers’ claimed
registrations; (c) copies showing status and title of
opposers’ registrations for marks such as THE OTHER
BURGER12 (in standard character format) and THE OTHER
TAILGATE PARTY13 (in standard character format);
(d) Rebuttal designation of portions of the discovery
deposition of Neil Dierks, chief executive officer of

12 Registration No. 2009023 issued for “association services,
namely promoting the interests of members of the pork industry”
to National Pork Board (NPB) on October 15, 1996; this
application was originally filed by National Pork Producers
Council (NPPC) on October 6, 1994; renewed. No claim is made to
the exclusive right to use the term “Burger” apart from the mark
as shown.

13 Registration No. 2840618 for “association services, namely,
promoting the interests of members of the pork industry” issued
to National Pork Board (NPB) on May 11, 2004; this application
was originally filed by National Pork Producers Council (NPPC) on
August 8, 2000.

Opposition No. 91166701
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NPPC14; and (e) Rebuttal designation of portions of the
discovery deposition of Steven Meyer, of Paragon
Economics, formerly a staff economist with NPB.
(ii) Opposers’ testimonial depositions with exhibits: (a)
Mark Williams (February 4, 5 and 29, 2008), of The
Motus Group, and formerly account executive with NPB’s
advertising firm responsible for THE OTHER WHITE MEAT
campaign; (b) James Meimann (February 27, 2008),
senior vice president of governance and operations
with NPB; (c) Steve Murphy (February 28, 2008), chief
executive officer of NPB; (d) Dallas Hockman (February
26, 2008), vice president of industry relations with
NPPC, and formerly vice president of demand
enhancement with NPB; (e) Jeff Hartz (February 11,
2008), formerly director of brand strategy with NPB;
(f) Jarrod Sutton (February 12 and March 12, 2008),
director of retail marketing with NPB; (g) Ceci Snyder
(February 11, 2008), assistant vice president of
consumer marketing; (h) Larry Cizek (February 12,
2008), director of culinary niche marketing;
(i) Stephanie Empey (February 12, 2008), senior web

14 Applicant submitted a stipulation by the parties to allow
the deposition testimony to be submitted pursuant to Trademark
Rule §2.120(j)(2).

Opposition No. 91166701
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developer with NPB; (j) Becca Hendricks (March 12,
2008), formerly strategic marketing manager with NPB;
(k) Toni O’Malley (March 13, 2008), director of
service center with NPB; (l) the adverse party
deposition, in its entirety, of Dominic Stramaglia
(February 4, 2008), owner, chief executive officer,
and president of applicant, Supreme Lobster and
Seafood Company; (m) Anders Groenstedt, Ph.D. (March
13, 2008), president of The Groenstedt Group, and
principal investigator and author of “The Northwestern
Study” of 2000 conducted under the auspices of the
School of Integrated Marketing & Communications at
Northwestern University and its Professor Clarke
Caywood, regarding well-known advertising slogans;
(n) Robert Klein (February 28, 2008), president of
Applied Marketing Science, Inc., a retained expert
regarding a consumer survey conducted on behalf of
opposers in support of their position in this
litigation.
Applicant introduced into the record the following
evidence:
(i) designation of excerpts of the discovery deposition
of Steven Meyer, Paragon Economics, formerly a staff
economist with NPB, taken on August 17, 2007;
Opposition No. 91166701
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(ii) printed publications offered to show the lack of
relevance, reliability, foundation or appropriate
procedures for opposers’ survey evidence; and
(iii) designation of excerpts of the discovery deposition
of Neil Dierks, chief executive officer of NPPC
taken on March 14, 2007.
Factual Findings
Applicant
According to Dominic Stramaglia, a founder and now CEO
of applicant, Supreme Lobster and Seafood Company is a
wholesale seafood distributor headquartered in Chicago that
sells, inter alia, fresh and frozen salmon to retailers and
food service providers (e.g., supermarkets and
restaurants). [Stramaglia at 5-7, 10-12 and 15] Mr.
Stramaglia testified that he thought of THE OTHER RED MEAT
as a trademark for salmon in order to exemplify all of the
good, healthy and nutritious things that salmon provides to
consumers. [Stramaglia at 33—34] The trademark search
that Mr. Stramaglia received, when clearing THE OTHER RED
MEAT as applicant’s prospective mark, included within the
results a summary of opposers’ claimed service mark herein,
namely THE OTHER WHITE MEAT. The ‘162 application is an
Opposition No. 91166701
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intent-to-use application with no evidence in the record
showing any use of the mark to date. [Stramaglia at 18-19]
Opposers
The applications underlying all three of opposers’
cited registrations were originally filed by NPPC. For
years the NPPC had collected monies from its members, but
fewer than half of NPPC’s members had paid contributions on
a voluntary basis. [Meimann at 10] Plagued with the
problem of so many free-riders while feeling the need for
sufficient resources to fund expensive media advertising,
the NPPC lobbied for federal legislative authority forcing
mandatory checkoff contributions. Id. at 8-12
Accordingly, the National Pork Board [NPB] was formed as an
instrumentality of the U.S. government in 1986 when
Congress passed the Pork Promotion, Research, and Consumer
Information Act of 1985 (the “Pork Act”). [Meimann at 8-
10; Ex. 18 at Bates No. NPB3623] With the passage of the
Pork Act and the attendant regulations, NPB began
collecting a “Pork Checkoff assessment,” essentially a fee
on all hogs sold in the United States. Id. The revenues
collected from this assessment are designed to promote the
consumption of pork and pork products in the United States.
[Meimann at 9-10, 16-17] A January 2001 settlement
Opposition No. 91166701
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agreement changed the relationship between NPB and the
NPPC. Rather than providing grants to NPPC, as its general
contractor, NPB was required to implement the check off
program with its own staff. [Meimann at 23-27]
Accordingly, in July 2001, employees of the NPPC who
implemented the Pork Checkoff program became employees of
the NPB. [Meimann at 23-27] After resolution of checkoff-
related litigation in 2006, NPPC transferred the mark THE
OTHER WHITE MEAT to NPB. [Meimann at 50]15
Between 1987 and 2007, this assessment on the hog
industry generated almost $1 billion in fees. [Meimann at
61-62; Ex. 297] Over this period of two decades, NPB has
spent more than $500 million dollars on “demand
enhancement”16 activities to market pork products to U.S.

15 Both NPB and NPPC are correctly joined in this proceeding
as “opposers.” Although NPPC originally owned the claimed marks,
NPB, the current owner of the involved marks, has taken the lead
in this litigation in recent years. Given the various changes
over time, there may well be examples in this written decision
when the individual designation “NPB” would be an appropriate
replacement for the collective “opposers.”

16 As used throughout this decision, “Demand Enhancement”
activities involve the use of advertising and promotional themes
designed to support the economic welfare of producers of
particular agricultural commodities. Often adopting a catchy
slogan, commodity boards initiate nationwide promotional
campaigns to increase the demand for their agricultural products.
These costly advertising efforts are often funded by commodity
“checkoff” programs –- value assessment fees on commodity sales
by producers or others in the marketing chain.

Opposition No. 91166701
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consumers. [Meimann at 62; Williams-III at 275; Ex. 298]
Most of this promotion has included a display and or verbal
expressions of the slogan THE OTHER WHITE MEAT. [Williams-
III at 273-274]
Prior to the formation of the NPB, the slogan THE OTHER
WHITE MEAT, along with an attendant proposal for a national
advertising campaign, was developed by The Bozell
advertising firm (under the direction of Bozell account
executive, Mark Williams) working under contract with the
NPPC. [Meimann at 19-21; Williams-I at 10-21] In the fall
of 1986, Mr. Williams presented the proposal to NPB to
commence its congressionally-mandated pork promotional
activities. [Williams-I at 24-26] NPB’s newly-constituted
board approved the advertising campaign, and early in 1987,
the ads featuring the new mark THE OTHER WHITE MEAT were
launched nationwide. [Meimann at 19-22; Williams-I at 26]
The advertising campaign to benefit the pork industry was
funded by Pork Checkoff dollars from NPB, then under the
administration of NPPC as NPB’s general contractor.
[Meiman at 17-19]
From the beginning, the national advertising campaign
stressed that chicken and fish are not the only choices for
a reduced-fat, balanced diet. The thrust of opposers’
campaign was to create a positive effect on consumer
Opposition No. 91166701
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attitudes about pork in the face of growing concerns about
the health risks of eating red meat. Opposers’ national
print advertisements have for years stressed pork’s
nutritional benefits as well as its convenience. The
advertising campaign for THE OTHER WHITE MEAT has also been
waged on radio, television, billboards, taxi cabs and
transit shelters [Exs. 121, 211, 213]. Opposers note that
the initial launch of this slogan and the results of the
first few years of the promotion were so impressive that
the Harvard Business School used it for years as a case
study, with students evaluating how effectively this
campaign, relying upon the distinctiveness of this slogan,
translated into significantly increased sales for the pork
industry. [Williams-I at 37-38; Ex. 65]
As an example of added synergy, both retailers and
food manufacturers have participated with opposers in co-
branded advertising campaigns
that promote the mark THE OTHER
WHITE MEAT in conjunction with
their own products and/or
services. The examples include
Campbell’s food products, Miller Lite beer/Kraft food
products and Kendall-Jackson wines. [Williams-I at 114-
116; Ex. 212 at Bates No. NPB075317] This is in addition
Opposition No. 91166701
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to the regular and frequent advertising of the mark THE
OTHER WHITE MEAT by supermarkets in their regular weekly
newspaper circulars. While opposers have worked very
closely with the supermarkets on these supermarket flyers,
they have never had to pay for this exposure. [Sutton-I at
38-54] It is on these exemplars that the record shows
advertisements consistently portray images of the mark THE
OTHER WHITE MEAT on packages of fresh pork displayed on the
same page as, or even directly adjacent to, photos of
packages of salmon. [Ex. 224 at Bates No. NPB13583; Ex.
225 at Bates No. NPB13563; Ex. 226 at Bates No. NPB13655;
Ex. 227 at Bates No. NPB13767; Ex. 228 at Bates No.
NPB14045; Ex. 229 at Bates No. NPB14144; Ex. 230 at Bates
No. NPB14168; Ex. 232 at Bates No. NPB14513, Ex. 233 at
Bates No. NPB15071; Ex. 234 at Bates No. NPB15081; Ex. 235
at Bates No. NPB15119; Ex. 274 at Bates No. NPB075023-24;
Ex. 276; see also Sutton-I at 52-53]
Opposers’ cooperation with supermarkets also included
a variety of in-store promotional programs such as floor
displays, recipe cards, and promotional banners. [Sutton-I
at 62-67, 79; Exs. 136, 141, 142] Opposers also
distributed meat package labeling that allowed retailers to
display the mark, THE OTHER WHITE MEAT – often combined with
nutritional and recipe information. [Sutton-I at 31-32,
Opposition No. 91166701
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71-73; Hockman at 69-72; Exs. 147, 174 at Bates No.
NPB75022]
The mark is also promoted through advertising
purchased by state pork producer associations that receive
a portion of each year’s total Pork Checkoff assessment
funds. Thus, in addition to the $500 million in demand
enhancement activity that opposers have funded from 1987 to
2007, as much as an additional $50 million in promotional
and marketing activities by the state associations (but
supervised by NPB) has also enhanced the exposure of the
mark THE OTHER WHITE MEAT. [Meimann at 14-15, 64-68;
Williams-I at 62-63, 113-114; Hockman at 82-85; Exs. 57,
58, 59, 60 and 296 at 10]
Opposers have also scored public relations points
through “earned media” activities designed to promote the
pork industry under the mark THE OTHER WHITE MEAT, using
celebrity spokespersons such as Peggy Fleming, Joan Lunden
and Chicago’s well-known Coach Mike Ditka, and by
sponsoring race cars. Opposers’ culinary marketing program
garnered widespread news coverage through its “Celebrated
Chefs” program and an annual “National Eat Dinner Together
Week.” Opposers promote the interests of the pork industry
through numerous websites, some of which display the mark
THE OTHER WHITE MEAT on every page of the site. [Empey at
Opposition No. 91166701
- 23 -
8-10; 21-22; Ex. 266; http://www.pork.org/, http://www.porkandhealth.org/,
www.porkfoodservice.com, http://www.porkfoodservice.org/, www.porkstore.com,
www.otherwhitemeat.com, www.pork4kids.com, www.nichepork.com, etc.] During
the month of July 2007, the dominant website,
www.theotherwhitemeat.com, received almost a hundred
thousand daily, unique visitors, with a total of almost six
hundred thousand page views. [Empey at 19, 27; Ex. 175 at
Bates No. NPB075095 and NPB075102] The highest volume
traffic goes to opposers’ web pages having recipes – an
informational service that has proven to be most popular.
[Empey at 40] Opposers’ promotional efforts include the
sale and distribution of collateral merchandise (e.g.,
shirts, jackets and other apparel, recipe books, cooking
utensils, cooking ingredients, etc.) bearing the mark THE
OTHER WHITE MEAT, including sales from opposers’ “Pork
Store” website, at www.porkstore.com. [O’Malley at 8-17;
Ex. 340]
Finally, opposers have tried to broaden the scope of
their brand in the mark THE OTHER WHITE MEAT by launching
advertising campaigns that have stressed the phrase “The
Other _______.” For example, opposers regularly run
advertising featuring marks such as THE OTHER BURGER and
Opposition No. 91166701
- 24 -
THE OTHER TAILGATE PARTY17 in close
association with the mark THE
OTHER WHITE MEAT. [Williams-I at
69-72; Hockman at 200; Sutton-I
at 43-44; Exs. 22, 151, 218, 219]
Similarly, opposers have run local and national
advertising playing off the mark with tag-lines that read
“The Other Backyard Barbecue,” “The Other Stir-Fry,” “The
Other Romantic Dinner,” “The Other Sunday Brunch,” “The
Other TV Dinner,” “The Other Way to Spice Up Your Love
Life,” “The Other Steak Dinner,” “The Other Prime Rib,” and
“The Other White Protein.” [Williams-I at 86-92; Exs. 94,
95, 113] In each case, these alternative slogans were
always displayed in close conjunction with the central
brand, THE OTHER WHITE MEAT, in an attempt to establish a
close consumer perception around the phrase “The Other
______” in connection with promotion of the pork industry.
[Meimann 188-189; Williams-I at 86-92; Hockman at 201-203;
Exs. 93, 94, 95, 113, 151, 218, 219, 247, 254] Even with
the introduction of other popular taglines like “Taste

17 As noted earlier, these registered have been made of record.
[Exs. 292 and 293.], but opposers have not pleaded likelihood of
confusion with respect to any of these other marks, nor have they
pleaded a family of “THE OTHER _______” marks.
Opposition No. 91166701
- 25 -
What’s Next” and “ … Now the meat of the millennium,” the
central focus remained on the slogan, THE OTHER WHITE MEAT.
As part of its regular monitoring of its demand
enhancement activities, as well as to comply with its
obligation to report on such activities to the Agricultural
Marketing Service of the USDA, opposers have since 1987
conducted semi-annual tracking surveys through independent
research firms. [Williams-I at 84, 127-130; Williams-II at
193-195; Williams-III at 255-265; Hendricks at 9-10, 46-
103; Hockman at 13-17, 20-26; Exs. 274, 274a, 274b, 274c,
274d, 274g, 274i, 274k] These tracking study results have
been critical to the planning of opposers’ annual
advertising and promotional strategies and other business
activities. [Williams-III at 264; Hockman at 19] In
response to the admittedly leading question “Have you read,
seen or heard pork referred to as ‘The Other White Meat?’,”
these tracking studies have consistently shown public
awareness of the mark THE OTHER WHITE MEAT at or above
eighty-five percent of consumers nationwide. [Ex. 77 at
Bates No. NPB67080; Hockman at 214-217; Williams-I at 130-
133; Hendricks at 51-56]
In a separate study in the year 2000 (“the
Northwestern Study”), conducted under the auspices of the
School of Integrated Marketing & Communications at
Opposition No. 91166701
- 26 -
Northwestern University and its Professor Clarke Caywood,
researchers found that the mark THE OTHER WHITE MARK was the
fifth most recognized advertising slogan in America among
the general adult population at that time.
In 2005, after internal review and study, opposers
decided to keep “The Other White Meat” as the core of the
brand, but in order to make the brand image a bit more

fresh, hip, cool and
contemporary, added the
tagline, “Don’t be blah.”18
In the words of one witness, with the passage of time and
stagnant sales of pork, the goal was to take the brand from
John Wayne to Tom Hanks. [Hartz at 17–28]
Finally, in connection with this litigation, NPB
engaged marketing research expert Robert Klein to conduct a
survey testing the likelihood of dilution caused by
applicant’s intended mark. [Klein at 26-46] This research
purported to show that more than thirty-five percent of the
respondents, in response to an unaided question, associated
applicant’s slogan with NPB’s slogan or the pork products
it promotes. [Klein at 64-66; Ex. 317]

18 Dierks at 155-156, Ex. 8, Bates No. NPB067609.

Opposition No. 91166701
- 27 -
Survey Evidence
Inasmuch as opposers and applicant have spent a great
deal of time supporting and attacking, respectively, a pre-
litigation study and a litigation survey, we will discuss
in detail the specifics of whether the results are
probative to our determination herein.
Northwestern Study of 2000
As noted above, applicant objects strongly to
opposers’ submission of a study conducted in the year 2000
by outside academics at the School of Integrated Marketing
& Communications at Northwestern University (the
“Northwestern Study”). Applicant argues that this study
should be excluded inasmuch as the working papers for the
survey were inadvertently disposed of during an office move
well before this litigation arose, because the methodology
for the survey was flawed, and because the time frame of
the survey allegedly renders it irrelevant and
prejudicial. We disagree.
The loss of pre-litigation working papers (during an
office move) is not especially prejudicial to applicant.
During his discovery deposition [Ex. 339], Dr. Groenstedt
provided applicant with exhaustive information about the
methodology, analysis and conclusions of the study. In his
Opposition No. 91166701
- 28 -
trial testimony, again he provided extensive and specific
testimony concerning all the information that would have
been available in the working papers. [Groenstedt at 20-
112]
The Northwestern Study was made up of three phases:
(1) compiling a list of 114 commercial slogans; (2)
winnowing this list down to the 25 most recognized slogans;
and (3) conducting a telephone survey with more than a
thousand telephone respondents to determine the degree of
recognition of each slogan.
We turn then to the first questioned methodology of
this study, namely, the narrowing of the slogans in the
second phase of the study. Opposers argue that this is a
commonly used “convenience survey,” used in this case to
reduce the universe of 114 slogans down to a more
manageable set of twenty-five to be used in a telephone
survey [Groenstedt at 25-27]. This seems quite reasonable,
especially in the absence of any evidence suggesting that
there were similar, famous slogans that should have been
part of the test but were left off the list of the twenty-
five best-known slogans to be tested. Applicant’s Internet
pages about the success of other advertising slogans (e.g.,
of McDonalds, 7-Up, Ace Hardware, Charmin and Ford Motor
Company) suggest that even if another study may well have
Opposition No. 91166701
- 29 -
settled on a slightly different set of slogans in naming
the top twenty-five consumer advertising slogans, such
subjectivity alone does not invalidate the Northwestern
Study. We note that among these twenty-five competing
slogans were ten involving food and beverage items (e.g.,
“Snap, Crackle, Pop,” “The Breakfast of Champions,” “The
King of Beers,” “The Un-Cola,” “Got Milk?,” “They’re
Great,” “How America Spells Cheese,” “Did Someone say
McDonalds?,” and “The Soup that Eats Like a Meal.”).
Moreover, during the last phase of the study (when
twenty-five slogans were tested in more than a thousand
telephone interviews), the research was conducted by a
well-regarded market research firm according to generally
accepted survey procedures. The specific research goal was
that of assessing the strength of THE OTHER WHITE MEAT in
comparison with other well-known slogans. Respondents were
asked whether they recognized a slogan and whether they
could correctly attribute it to a brand, product or
industry. [Groenstedt at 22, 35-39, 99, 111]19

19 The interviewer read each respondent a list of twenty-five
advertising slogans. For each of the slogans, the respondent was
asked if he/she recognized the slogan. If he/she responded
affirmatively, the follow up question was to what brand, product
or industry he/she attributed the slogan. Groenstedt discovery
deposition at 65; Groenstedt at 37.

Opposition No. 91166701
- 30 -
Applicant attacks the aided awareness questioning used
during the telephone survey. However, the methodology of
this study did not lead respondents to a desired result by
using inherently suggestive questions. The attribution
questions did not invite guessing but relied upon the
respondents being able to make the correct association. In
assessing the proper evidentiary weight to be accorded to
this evidence and testimony, we find the results to be
probative of the public perceptions, and hence the renown,
of opposers’ claimed slogan.
Finally, inasmuch as one of the elements that opposers
must prove under the likelihood of dilution claim is
whether the mark THE OTHER WHITE MEAT became famous prior to
the 2004 filing date of applicant’s involved application,
the Northwestern Study of 2000 is timely evidence to
address this critical question.
Klein Dilution Survey of 2007
Applicant also attacked the 2007 Dilution Survey
prepared by Robert Klein (of Applied Marketing Science,
Inc.) for use in this litigation [Klein at 26-27] because
it allegedly used improperly-leading questions, an overly-
broad universe of survey respondents, an inappropriate
Opposition No. 91166701
- 31 -
control question, and failed to replicate market
conditions.
After playing a recording of applicant’s slogan, the
screener asked the respondents the following questions:
(4) “Thinking about the slogan you just heard
[THE OTHER RED MEAT], do any other
advertising slogans or phrases come to
mind?” [If answered “yes” continue to Q5]
(5) “What other advertising slogan or phrase
comes to mind?20
Applicant charges that Question 4 is inappropriate
“because it improperly suggests to survey respondents that
another slogan or phrase exists that should be brought to
mind” upon hearing applicant’s slogan. However, the survey
was intended to test the precise question of whether
applicant’s mark calls to mind opposers’ mark or
advertising campaigns. Accordingly, it seems that it was
necessary to pose the question of whether this slogan
brought to mind any other advertising slogans. We do not
find this to an inappropriately leading question. An
affirmative answer of another slogan is not presumed with
the phrasing of “… do any other advertising slogans … ”

20 Ex. 314 at 2.

Opposition No. 91166701
- 32 -
come to mind. We note that at no point in the survey did
the screener ever mention opposers’ mark or product.
Contra Ralston Purina Company v. The Quaker Oats Company,
169 USPQ 508, 509 (TTAB 1971) [“… [Q]uestions preceding the
one here relied upon by opposer mentioned a number of times
opposer’s product by trademark. The persistency thereof
would necessarily condition the responses of the
interviewees.”]. See also 6 J. Thomas McCarthy, MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION, §32.172 “Test of properly
conducted survey – Slanted or leading questions – Avoiding
Leading Questions” (4th ed. 2010). Applicant may well have
had reason to complain if screeners had led with a question
like “Does the slogan you just heard call to mind any other
slogans for products other than red meat.” However, as
noted by opposers, applicant has not put forward an
alternative way in which to ask the question that reaches
the legitimate goals of the opposers while avoiding any
purported suggestiveness.
As to the follow-on query contained in survey Question
5, applicant argues that intentional trickery was involved
here. According to applicant, by asking respondents to
identify some “other advertising slogan” that may come to
mind, Mr. Klein intended to introduce a critical word-
association. By instructing the survey interviewers to
Opposition No. 91166701
- 33 -
stress the word “other” in “other advertising slogan,”
applicant argues that screeners allegedly induced the
response “The Other White Meat.” In this context, it is
difficult to avoid this word, coincidentally contained in
both parties’ marks. In fact, the survey design and
results actually demonstrate that Question 5 was not at all
suggestive in the direction that applicant complains. The
survey respondents who indicated that the slogan THE OTHER
RED MEAT called to mind the mark THE OTHER WHITE MEAT had
first responded “yes” in response to Question 4, and merely
specified the slogan that came to mind in response to
Question 5. [Ex. 318 at 1-54] Furthermore, although
Professor McCarthy may question the relevance of a “call to
mind” question as it relates to issues of actual confusion
or likelihood of confusion, the phraseology of this
question is clearly relevant to the issue of likelihood of
dilution. 6 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION, § 32.176 (4th ed. 2010).
Applicant argues that these survey results should be
barred from consideration, citing to case law and the MANUAL
FOR COMPLEX LITIGATION.21 However, court opinions,22 including

21 Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION, § 11.493
at 102-104 (4th ed. 2004).

Opposition No. 91166701
- 34 -
some of the same cases cited by applicant, as well as a
leading commentator cited repeatedly by applicant, have
confirmed that association queries are appropriate in light
of the specific language of the current dilution provisions
of the Lanham Act.23 Moreover, we find that the questions
posed were clear and not leading. The survey was conducted
by qualified persons following proper interview procedures,
and in a manner that ensured objectivity.
As to Mr. Klein’s qualifying question of whether the
respondents had purchased “seafood or fish” in the past, as
opposed to whether the respondents intended to purchase
“salmon” in the future, we fail to see any meaningful
difference. Applicant has not shown that salmon eaters are

22 See James Burrough Limited v. Sign of the Beefeater, Inc.,
540 F.2d 266, 192 USPQ 555, 564 (7th Cir. 1976); Anheuser-Busch.
Inc. v. Balducci Publications, 28 F.3d 769, 31 USPQ2d 1296 (8th
Cir. 1994); Indianapolis Colts, Inc. v. Metropolitan Baltimore
Football Club Ltd. Partnership, 34 F.3d 410, 31 USPQ2d 1811, 1816
(7th Cir. 1994); Pebble Beach Co. v. Tour 18 I. Ltd., 155 F.3d
526, 48 USPQ2d 1065, 1076-77 (5th Cir. 1998); National Football
League Properties, Inc. v. Wichita Falls Sportswear, Inc.,
532 F.Supp. 651, 215 USPQ 175, 181-83 (W.D.Wash. 1982); and
McDonald’s Corp. v. McBagel’s, Inc., 649 F.Supp. 1268, 1 USPQ2d
1761 (S.D.NY 1986).

23 See e.g., 4 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION, § 24:116 (4th ed. 2010). Professor McCarthy confirms
that “[a] survey asking what the accused mark brings to mind is
evidence of the ‘association’ required by the statute.” See also
Nike Inc. v. Nikepal International Inc., 84 USPQ2d 1820, 1825
(E.D. Cal. 2007) [“Mr. Johnson [a survey expert] testified that
his survey revealed that the vast majority of respondents, 87%,
associated NIKEPAL with NIKE; that is, when they encounter the
mark NIKEPAL, they think of NIKE and/or its offerings.”]

Opposition No. 91166701
- 35 -
so limited in their fish or seafood choices that they would
require a separate category. A past purchaser of “seafood
or fish” is a potential future consumer of “salmon.” The
latter is a significant subset of the former, and in this
particular situation any further narrowing of the potential
universe would not result in any appreciable difference in
the survey results. This is certainly not an example of “a
wholly irrelevant universe of respondents.” [Applicant’s
evidentiary objections at 26] Any ambiguity about which
channels of trade were included in the qualifying questions
is also not of major concern to us inasmuch as there are no
restrictions on applicant’s intended channels of trade in
the involved application. See Boston Red Sox Baseball Club
Ltd. P’ship v. Sherman, 88 USPQ2d 1581, 1591 (TTAB 2008).
Applicant’s criticism of opposers’ use of “The Tasty
Main Dish” as an allegedly inappropriate control slogan,
like other of applicant’s complaints about the Klein
survey, comes without a convincing explanation about what
is inherently wrong with this particular phrase. If the
proof is in the pudding, opposers’ survey results
demonstrate that this control phrase did exactly what it
was designed to do, namely, to assess the level of any
guessing (or “noise”) on the part of respondents that could
Opposition No. 91166701
- 36 -
affect the reliability of the critical results of the
survey.
Finally, we note that the involved mark is an intent-
to-use slogan with virtually no actual presence in the
marketplace. Opposers’ use of a well-designed telephone
survey in this context appears to us totally appropriate.
Applicant’s adopted mark has not yet been used in commerce,
and applicant could well choose to present the slogan
visually in a myriad of ways, so there is no particular
significance to visual stimuli in the case at hand.
Hence, we overrule applicant’s objections to Mr.
Klein’s testimony and his dilution survey prepared for this
litigation. We find Mr. Klein’s testimony to be reliable
and persuasive, and the results of the survey to be
probative on the issue of likelihood of dilution.
Standing
As a preliminary matter, we find that opposers have
established their standing – National Pork Board [NPB] by
demonstrating its current usage and submitting status and
title copies of its registrations, and National Pork
Producers Council [NPPC] by its demonstrated use over a
long period of years, its status as an entity having
privity with NPB as one of NPB’s licensees, and as an
Opposition No. 91166701
- 37 -
entity retaining an economic and contingent interest in the
mark.
Do commodity promotional slogans function as source
indicators?

Applicant takes aim directly at commodity promotional
slogans generally, and opposer’s slogan THE OTHER WHITE MEAT
in particular, arguing that they function merely as
“generic labels” or “marketing campaigns.”24 As noted
above, the involved mark is a slogan designed to promote
the consumption of pork and pork products in the United
States. While the direct beneficiaries of a successful
demand enhancement campaign may well be pork producers and
packers and associated businesses in the chain of
production and marketing, the target audience for the
advertising is undoubtedly members of the general consuming
public. However, this is certainly not an issue unique to
opposers, the pork industry, or this slogan:
Pork joined a lengthening list of commodities being promoted with
funds collected from farmers who pay mandatory assessments.
The trend reflects a growing awareness in the Farm Belt that
generic products must be marketed as aggressively as brand-name
products in today’s highly competitive marketplace.25

24 To the extent applicant’s argument that commodity
promotional slogans, in general, do not function as marks, is
intended to be an attack on opposers’ registered slogan mark
specifically, it is an impermissible attack on the validity of
opposers’ registrations which will not be entertained in the
absence of a counterclaim for cancellation.
25 Wall Street Journal, September 28, 1988, N of R, #33, p.83.
Opposition No. 91166701
- 38 -
Indeed, the record shows that opposers’ THE OTHER WHITE
MEAT mark is one of many such promotional slogans owned by
commodity promotion agencies regulated by the USDA and
funded with mandatory “checkoff” revenues collected from
sales of the promoted commodity. Opposers have placed at
least seventeen third-party registrations into the record,
of which the following are merely representative examples:
BEEF. IT'S WHAT'S FOR DINNER. for, inter alia, “promoting the
interests of the beef and beef
products industry by disseminating
advertising and promotional materials
and consumer and industry information
about beef and beef products” in Int.
Cl. 35;26
THE FABRIC OF OUR LIVES for, inter alia, “promoting the
consumption of cotton and products
made from cotton and the interest of
the United States cotton producers
and importers by means of printed
material, radio and television; and
providing technical consultation to
cotton mills and manufacturing of
cotton products; and carrying out
research for others to improve cotton
products and the manufacture of
cotton products” in Int.Cl. 42;27
THE INCREDIBLE EDIBLE EGG for “promoting awareness of the
benefits of eggs” in International
Class 42;28

26 Registration No. 1809825 issued to The Cattlemen’s Beef
Promotion and Research Board (United States Statutory Board), AKA
Cattlemen’s Beef Board and AKA Beef Board on December 7, 1993;
renewed. No claim is made to the right to use the word “Beef”
apart from the mark as shown.

27 Registration No. 2144788 issued to Cotton Incorporated on
March 17, 1998; renewed.

28 Registration No. 2442449 issued to The American Egg
Board (United States Government Agency) on April 10, 2001;
Opposition No. 91166701
- 39 -
Opposers argue that these marks and other like them:
“ … function in precisely the same way as
NPB’s mark, as a slogan to promote the
interests of an entire industry through
marketing aimed at promoting the consumption
of that industry’s principal product,
whether it be fresh beef, cotton fabric, or
whole eggs. These slogans pervade the
marketplace. The marks are instantly
recognizable, and their iconic impact aims
to promote not a particular brand of goods,
but rather a service to that commodity
industry as a whole, promoting consumption
of that industry’s principal product. With
the breadth of such commodity promotional
slogans in the marketplace, there can be no
question that consumers recognize these
slogans for what they are, marks designating
the promotion of an industry group as a
whole. As such, these slogans function
quintessentially as trademarks.”

Opposers’ reply brief at 13.

However, applicant argues that consumers will be
misled and deceived by commodity promotion slogans, and
that all such agencies should be scrutinized because of
their inability to control the quality standards of the
commodity being sold. Applicant seems to call into
question whether such slogans should even be protected in
the U.S. as source indicators under the Lanham Act – a
contention clearly beyond the scope of this proceeding.

Section 8 affidavit (six-year) accepted and Section 15
affidavit acknowledged. No claim is made to the right to
use the word “Egg” apart from the mark as shown.
Opposition No. 91166701
- 40 -
Applicant’s attack on opposers’ commodity promotion
slogan seems to misapprehend the quality control
responsibilities of opposers and similar trade
associations. NPB owns federal registrations for
association services namely, promoting the interests of
members of the pork industry. Hence, NPB’s service marks
serve to distinguish the service of promoting the pork
industry. This is not a certification mark certifying that
pork products meet certain quality standards.29
Additionally, this is not a product mark for identifying a
brand of pork. Clearly, the owner of a product mark for
fresh pork who does not control the quality of a
licensee’s products risks a finding that its trademark has
been abandoned.
By contrast, the owner of a commodity promotion slogan
is concerned with the marketing effectiveness of all the
producers, suppliers and vendors within its industry sector
as a whole, whatever the principal product may be.
Opposers herein maintain a precise message and focus by
controlling the ways in which their slogan/mark is used on

29 Contra Midwest Plastic Fabricators Inc. v. Underwriters
Laboratories Inc., 906 F.2d 1568, 15 USPQ2d 1359 (Fed. Cir. 1990)
[Underwriters Laboratories certifies with its well known
symbol that electrical equipment meets safety standards];
In re Celanese Corp. of America, 136 USPQ 86 (TTAB 1962)
[CELANESE certifies plastic toys meeting certifier’s safety
standards].
Opposition No. 91166701
- 41 -
the promotion and packaging of pork and pork products. The
ultimate measure of this effort is the level of pork
consumption in the United States as a share of all meat
products, ultimately translating into economic benefit for
all pork producers. However, unlike the individual
enterprise within the pork industry, opposers are not
attempting to distinguish source among various retail
vendors. [Meimann at 155-158] As opposers point out in
their reply brief, this involves a “slogan that
distinguishes a promotional campaign for fresh pork, a
promotional campaign [U.S. consumers] have seen for … a
generation and which has become part of the fabric of
popular culture in America.” Reply Brief at 4. These
commodity promotion slogans are instantly recognizable and
have had a pervasive impact on the consumer marketplace and
in popular culture. As seen above from the federal
trademark register, many have long been similarly-funded
through congressionally approved marketing programs.
However, applicant argues that “where a term is widely
adopted within an industry, it lessens the ability for any
party to claim trademark rights in the term.” This case
does not, however, involve a term widely used as
descriptive or generic.
Opposition No. 91166701
- 42 -
Applicant’s confusion may be prompted by the fact that
this demand-enhancing, promotional activity is sometimes
labeled “generic advertising.” As noted earlier, these
messages are producer-funded efforts to enhance the demand
for farm commodities. As opposed to advertising for
specific brands of a product by particular producers, this
“generic advertising” is a cooperative group effort by the
suppliers to promote demand for a particular generic
product, not a product of a particular producer. A
“generic” ad slogan shared by all those in the same
industry (e.g., PORK. THE OTHER WHITE MEAT) focuses on
difficult-to-determine attributes common to this commodity
group (e.g., the nutritional content of pork) 30 The
slogan’s use is managed by a commodity promotion board
(whether established by federal statute or organized
voluntarily by the industry) and has value for all the
producers or suppliers in that particular industry,
presumably at the expense of competing categories of
products (e.g., chicken). Within the pork industry, this
effort is clearly brand-neutral.

30 It is black letter trademark law that traditional, branded
messages by individual trademark owners are adopted and used to
differentiate between or among products within the commodity
group, rather than to highlight their similarities.
Opposition No. 91166701
- 43 -
Accordingly, that the primary focus of such an
association’s endeavor is national advertising designed to
promote the consumption of a particular commodity does not
disqualify the mark or slogan under the Lanham Act’s
statutory definition of a mark. Indeed, this record shows
that industry slogans like “Got Milk?” “The Other White
Meat,” “The Fabric of Our Lives,” and “Beef. It’s What’s
for Dinner” function as quintessential association source-
indicators.
PORK. THE OTHER WHITE MEAT or just THE OTHER WHITE MEAT?
As to exactly what comprises opposers’ mark, opposers
in this litigation have claimed rights in the slogan, THE
OTHER WHITE MEAT. However, applicant claims that the mark,
as actually used, is the longer slogan, PORK. THE OTHER
WHITE MEAT.
As noted above, the three federal trademark
registrations claimed by opposers include the words THE
OTHER WHITE MEAT only. To the extent that applicant is
arguing that opposers use the longer slogan, PORK. THE OTHER
WHITE MEAT, and hence, cannot rely on these registrations,
we find this to be an impermissible attack on the validity
of opposers’ registrations absent compulsory counterclaims.
Opposition No. 91166701
- 44 -
As to the manner in which opposers have deployed the
slogan, the record shows extensive usage of both “The Other
White Meat” and “Pork. The Other White Meat.” Under
examination policies of the United States Patent and
Trademark Office, if using the variety of available images
(i.e., those captured for the prosecution of this
opposition) as specimens of actual usage of the slogan,
opposers qua applicants would be given the latitude to
choose either or both of these slogans for registration, so
long as the mark selected, as depicted on the specimens of
use, creates an independent commercial impression.
Dilution by blurring
When an application to register a mark is challenged
on grounds of dilution under Section 43(c) of the Act,
15 U.S.C. § 1125(c),31 we look to three elements: (1)

31 (c) Dilution by blurring; dilution by tarnishment
(1) Injunctive relief -- Subject to the principles of
equity, the owner of a famous mark that is distinctive,
inherently or through acquired distinctiveness, shall be
entitled to an injunction against another person who, at
any time after the owner's mark has become famous,
commences use of a mark or trade name in commerce that is
likely to cause dilution by blurring or dilution by
tarnishment of the famous mark, regardless of the presence
or absence of actual or likely confusion, of competition,
or of actual economic injury.
(2) Definitions
(A) For purposes of paragraph (1), a mark is famous
if it is widely recognized by the general consuming
public of the United States as a designation of
source of the goods or services of the mark's owner.
In determining whether a mark possesses the requisite
Opposition No. 91166701
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whether the opposer’s mark is famous; (2) whether the
opposer’s mark became famous prior to the date of the
application to register the applicant’s mark; and (3)
whether the applicant’s mark is likely to blur the
distinctiveness of the opposer’s famous mark.

degree of recognition, the court may consider all
relevant factors, including the following:
(i) The duration, extent, and geographic reach
of advertising and publicity of the mark,
whether advertised or publicized by the owner
or third parties.
(ii) The amount, volume, and geographic extent
of sales of goods or services offered under the
mark.
(iii) The extent of actual recognition of the
mark.
(iv) Whether the mark was registered under the
Act of March 3, 1881, or the Act of February
20, 1905, or on the principal register.
(B) For purposes of paragraph (1), “dilution by
blurring” is association arising from the similarity
between a mark or trade name and a famous mark that
impairs the distinctiveness of the famous mark. In
determining whether a mark or trade name is likely to
cause dilution by blurring, the court may consider
all relevant factors, including the following:
(i) The degree of similarity between the mark
or trade name and the famous mark.
(ii) The degree of inherent or acquired
distinctiveness of the famous mark.
(iii) The extent to which the owner of the
famous mark is engaging in substantially
exclusive use of the mark.
(iv) The degree of recognition of the famous
mark.
(v) Whether the user of the mark or trade name
intended to create an association with the
famous mark.
(vi) Any actual association between the
mark or trade name and the famous mark.

Opposition No. 91166701
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A. Is the term THE OTHER WHITE MEAT famous?

Unlike the typical product mark, the slogan here is
for an industry-wide, commodity-promotion marketing
campaign. While it does sell some collateral merchandise,
NPB does not itself sell pork using the THE OTHER WHITE
MEAT mark. Nonetheless, given the nature of this mark,
there is no doubt but that the pork products promoted by
the slogan make up a meaningful portion of the quantity of
meat sold in the U.S. [Ex. 18 at Bates No. NPB3606,
NPB3609 (showing USDA consumption data for pork)]
In spite of this voluminous record, applicant argues
that opposers have presented only “imprecise statements
regarding advertising expenditures” rather than
substantiated evidence of actual advertising expenditures.
However, the record is clear that NPPC, NPB and
various state pork producer associations have spent more
than $550 million dollars in Pork Checkoff funds on demand
enhancement promotional activities over the more than
twenty-year life of the mark, and that those dollars were
spent on advertising and marketing activities that used the
mark THE OTHER WHITE MEAT. [Williams-III at 274-275;
Meimann at 66-67] In some instances, other marks and
taglines were included, but every visual included in this
Opposition No. 91166701
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extensive record shows that THE OTHER WHITE MEAT was the
central focus of the advertising campaigns, not simply
“wallpaper.” The preponderance of the evidence in the
record establishes that NPB’s direct demand-enhancement
campaign has expended, on average, more than $25 million
per year during its lifetime [Williams-II at 184; Ex. 298],
not the lesser level of five million dollars alleged by
applicant. On this point, we are not convinced that Dr.
Steven Meyer has expertise or training in the valuation of
marks, and there is no corroboration in the record to
support his report of the precipitous decline within a mere
two years (from his report of 2001 to his report of 2003)
in annual media expenditures for demand enhancement derived
from Pork Checkoff monies from $25 million down to $5
million. This raises questions about the reliability of
the latter estimate.
Separate from these total Pork Checkoff funds invested
in the mark, substantial third-party advertising of the
mark has taken place through cross-promotional and co-
branded activities. [Exs. 135, 136, 138, 139, 140, 141,
142, 147, 151, 212, 219, 224, 225, 226, 227, 228, 229, 230,
231, 232, 233, 234, 235, 247, 252, 255, 276]
In characterizing opposers’ promotional efforts as
insufficient (e.g., by contrasting such efforts with those
Opposition No. 91166701
- 48 -
involving JUST DO IT (Nike) or the slogan DON'T LEAVE HOME
WITHOUT IT (American Express)), applicant alleges that
“ … neither the NPPC nor the NPB has made any showing of the
advertising of their association services.” However,
opposers’ association services are “promoting the interests
of members of the pork industry.” And we find that
substantially all of opposers’ demand enhancement
activities were designed and functioned to promote the
interests of members of the pork industry. This is,
indeed, opposers’ exact recitation of services. It is
certainly not critical in this context whether consumers
can name NPPC or name NPB. Consumers need not identify the
source of the services. Rather, for the mark to be source-
identifying, it is sufficient that consumers associate the
mark with a single, albeit anonymous source. Ralston
Purina Co. v. Thomas J. Lipton, Inc., 341 F.Supp. 129,
173 USPQ 820, 823 (S.D.N.Y. 1972); 2 J. Thomas McCarthy,
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, §15:8 (4th ed. 2010).
NPB’s non-litigation consumer surveys – ranging from
periodic tracking studies to the Northwestern Study of 2000
– demonstrate a high degree of consumer and general public
recognition of the mark. Tracking studies consistently
have shown consumer recognition of the mark above the
eighty-five percent level. [Ex. 77 at Bates No. NPB67080]
Opposition No. 91166701
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Similarly, the Northwestern Study during the year 2000
showed nearly eighty percent awareness of the mark among
the general adult population at that time. [Groenstedt at
53-54] These researchers found that in terms of correct
attribution between the slogan and the source, only four
nationally known slogans ranked higher than THE OTHER WHITE
MEAT [Ex. 338] Opposers point out that this means it was
ranked higher than other well-known slogans such as JUST DO
IT32 (Nike), DON’T LEAVE HOME WITHOUT IT33 (American Express),
KING OF BEERS34 (Budweiser) and LIKE A GOOD NEIGHBOR (State
Farm). [Groenstedt at 20, 39-50; Ex. 338]
The study was subsequently reported on by various news
media, which mentioned the position of the mark THE OTHER
WHITE MEAT as the fifth most recognized advertising slogan
in the United States among the general adult population at
that time. [Exs. 268, DVD No. 1; First Notice of Reliance,
Ex. 4] As Dr. Anders Groenstedt, the principal

32 Nike, Inc. v. Circle Group Internet, Inc., 318 F. Supp. 2d
688, 692, 70 USPQ2d 1853, 1856 (N.D. Ill. 2004) [finding JUST DO
IT (twelfth in Northwestern Study) to be famous].

33 American Express Co. v. CFK, Inc., 947 F.Supp. 310, 312, 41
USPQ2d 1756, 1757 (E.D. Mich. 1996) [finding DON’T LEAVE HOME
WITHOUT IT (seventeenth in Northwestern Study) to be famous].

34 Anheuser-Busch Inc. v. Goldstein, Opp. No. 106963, slip op.
(TTAB Mar. 30, 2000) (non-precedential) [finding KING OF BEERS
(eighth in Northwestern Study) to be famous].

Opposition No. 91166701
- 50 -
investigator for the Northwestern Study, testified at
trial, “We were blown away by the high recognition.”
[Groenstedt at 50]
Additionally, the record shows extensive references to
the mark in the popular culture. The mark has made
appearances on late night television shows [Williams-I at
43-45; Williams-II at 159; Exs. 202, 203, 268], game shows
[Williams-II at 159; Exs. 206, 268], nationally syndicated
comic strips [Williams-I at 45; Ex. 204], Hollywood box-
office hits and as a variety of other references in the
popular culture [Williams-I at 55; Williams-II at 159].
Opposers argue that these cultural references are probative
because they would not be so wide-spread if this slogan
were not so famous to a substantial portion of the
population.
Furthermore, the mark has been discussed in third-
party publications [Ex. 167], college textbooks on
advertising and marketing [Williams-I at 170-172], as a
Harvard Business School Case Study [Ex. 65], and in news
reports in the nation’s leading printed publications. [See
NPB’s First Notice of Reliance, Exs. 1-52; see also
Williams-I at 48-54; Ex. 209] The mark regularly shows up
in published lists of famous marks [NPB’s Second Notice of
Reliance, Exs. 1-7], and is used as the instructional
Opposition No. 91166701
- 51 -
example by the Thomson Company on how to construct a
trademark search for advertising slogans in the Thomson-
Dialog database. [Williams-II at 172-174; Ex. 273]
Mr. Williams testified that in light of the
“phenomenal” degree of consumer recognition of the mark,
the renown of this remarkable slogan makes it one of the
most well-known and successful advertising slogans in
modern times. [Williams-II at 181-186, 212] That this
mark is extremely well-known is corroborated by the other
marketing and advertising professionals who testified at
trial. [Groenstedt at 19-20; Hockman at 94-95; Hartz at
80-81; Snyder at 44-46; Sutton at 79-81; Meimann at 108]
Accordingly, we find that the evidence demonstrates
that THE OTHER WHITE MEAT is famous. It is among the most
well-known advertising slogans in the U.S. given awareness
rates at eighty to eighty-five percent of the general adult
population and rates of correct source recognition at
nearly seventy percent of the population. [Groenstedt at
53-54; Ex. 338] Awareness and recognition at this level
has certainly supported a finding of fame in those rare
instances where this Board has found a likelihood of
dilution. See 7-Eleven Inc. v. Wechler, 83 USPQ2d 1715,
1727-28 (TTAB 2007) [fame for dilution purposes with survey
showing awareness among seventy-three percent of general
Opposition No. 91166701
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consumers]; and Nasdaq Stock Market Inc. v. Antartica
S.r.l., 69 USPQ2d 1718, 1737 (TTAB 2003) [fame for dilution
purposes with survey showing awareness of the mark among
eighty percent of investors]. We find, based upon the
preponderance of the evidence, that NPB spent in the
neighborhood of $25 million every year for almost twenty
years on demand enhancement advertising and marketing prior
to the filing of the involved application. Additionally,
the record shows an extensive amount of third-party
advertising, in-store retail promotions, and unsolicited,
national news media coverage. All of this evidence taken
together supports the conclusion that opposers’ mark THE
OTHER WHITE MEAT is famous among a broad spectrum of the
general consuming public.
B. Was the mark THE OTHER WHITE MEAT famous before
applicant’s filing date?
The majority of the evidence in the record about the
renown of opposers’ slogan predates the involved
application filing date of February 4, 2004. Therefore,
we find that the fame of THE OTHER WHITE MEAT was well-
established prior to the date that Supreme Lobster and
Seafood Company filed the involved application.

Opposition No. 91166701
- 53 -
C. Is applicant’s mark THE OTHER RED MEAT likely to blur
the distinctiveness of the opposer’s mark, THE OTHER
WHITE MEAT?

Dilution by blurring is an association arising
from the similarity between a mark or trade name and a
famous mark that impairs the distinctiveness of the
famous mark. Over time, the gradual whittling away of
distinctiveness will cause the trademark holder to
suffer “death by a thousand cuts.”35 Accordingly, we
consider the statutory, non-exclusive factors for
determining the likelihood of blurring in a dilution
case set out by the Trademark Dilution Revision Act,
15 U.S.C. § 1125(c)(2)(B):
The degree of similarity between the mark or trade name and the famous
mark.
When making a determination under the Trademark
Dilution Revision Act of 2005 (TDRA), after finding in the
affirmative on the question of pre-existing fame, an
important question in a dilution case is whether the two
involved marks are sufficiently similar to trigger
consumers to conjure up a famous mark when confronted with
the second mark. For purposes of this element, we find

35 See Barton Beebe, “A Defense of the New Federal Trademark
Antidilution Law,” 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1143,
1163 (2006).

Opposition No. 91166701
- 54 -
that the two marks involved herein are highly similar,
having the same structure and cadence and three of the same
words. The difference involves only the third of the four
words, which in both cases is an adjective referring to a
color of meat, of which there are precious few from which
to choose. Both slogans elicit the same mental processing,
namely, a comparison of the promoted meat with another kind
of meat. Indeed, Mr. Klein’s dilution survey shows that
more than thirty-five percent of the survey respondents
associate applicant’s slogan with opposers’ slogan (or with
the pork being promoted by the mark) in an unaided survey
response. [Klein at 72; Ex. 317] This degree of
association demonstrates that a sizeable segment of the
target population sees the two marks as highly similar.
Accordingly, under these circumstances, we find that
this statutory factor weighs in favor of a finding of
likelihood of dilution.
The degree of distinctiveness of the famous mark.
Even though inherent distinctiveness is not required,
the statute is weighted toward a finding of dilution when
the famous mark in question is commercially-strong and
inherently distinctive. See Perfumebay.com Inc. v. eBay
Inc., 506 F.3d 1165, 84 USPQ2d 1865, 1876 (9th Cir. 2007).
Opposition No. 91166701
- 55 -
Opposers’ mark, THE OTHER WHITE MEAT is entitled to a
presumption of inherent distinctiveness. The incontestable
registration issued based upon a claim of use in commerce
without a Section 2(f) showing of acquired distinctiveness.
See Tea Bd. of India v. Republic of Tea, Inc., 80 USPQ2d
1881, 1899 (TTAB 2006). In truth, the service mark slogan,
THE OTHER WHITE MEAT, only suggests a healthy attribute of
the commodity being promoted by the pork industry, namely,
the color of some cuts of pork after being cooked. See In
re MBNA Am. Bank, NA, 340 F.3d 1328 67 USPQ 2d 1778, 1779-
80 (Fed. Cir. 2003).
Thus, we find that the suggestive mark, THE OTHER WHITE
MEAT, is inherently distinctive, and consideration of this
element also suggests that dilution by blurring is likely.
The extent to which the owner of the famous mark is engaging in substantially
exclusive use of the mark.
The record herein shows that opposers’ use of the mark
THE OTHER WHITE MEAT is virtually exclusive. There is no
evidence of any actual use in commerce, at the time
applicant filed its application for a federal trademark
registration or since then, of the same or similar marks,
on any goods or services, to say nothing of goods or
services that are related to either the promotion of the
pork industry or the sale of salmon products. Accordingly,
Opposition No. 91166701
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opposers’ exclusivity of use of this mark also supports the
conclusion that dilution by blurring is likely.
The degree of recognition of the famous mark.
The fourth listed statutory factor for the blurring
analysis has us assessing just how well recognized is
opposers’ mark. The evidence opposers have placed into
this record is voluminous. The preponderance of this
evidence convinces us that this slogan, THE OTHER WHITE
MEAT, has become part of the fabric of popular culture in
the United States. We find especially compelling the
evidence from the Northwestern Study of 2000 showing that
only four other consumer slogans in the United States had a
greater degree of recognition than THE OTHER WHITE MEAT.
[Ex. 338] This finding supports a conclusion that
opposers’ mark is extremely well recognized by a broad
spectrum of consumers, and that this degree of recognition
among the general consuming public of this famous mark also
supports the conclusion that dilution by blurring is likely
upon the introduction of applicant’s slogan into the
marketplace.
Whether the user of the mark or trade name intended to create an association
with the famous mark.
The evidence shows that applicant’s CEO, Dominic
Stramaglia was aware of the opposers’ mark. [Stramaglia at
Opposition No. 91166701
- 57 -
22, 26] He also reviewed a Thomson & Thomson trademark
search report showing the mark, THE OTHER WHITE MEAT, as
the third cited reference among potentially conflicting
marks at the time applicant filed its intent-to-use
application. [Stramaglia at 22, 36-39, 43; Ex. 272] Mr.
Stramaglia’s assertion that he came up with the slogan THE
OTHER RED MEAT “out of the blue” and without any thought of
opposers’ well-known slogan stretches credulity. Mr.
Stramaglia admitted to having customer relationships with
well-publicized restaurants in the Chicago area that
prominently participated in opposers’ THE OTHER WHITE MEAT
campaign. [Stramaglia at 15; Williams-I at 69-71; Cizek at
27-28; Ex. 254] In directing its demand enhancement
efforts, opposers have always placed great importance on
the Chicago region. [Williams-I at 56-58, 72- 73; Hockman
at 29-30] Judging by the fact that ninety-one percent of
consumers in the Chicago market were then aware of
opposers’ slogan, Mr. Stramaglia would be in a distinct
minority of the uninformed on this agricultural commodity
slogan despite his close and long-standing involvement in
the food industry in general and the Chicago market in
particular. [Ex. 79] Moreover, he said that he conceived
of THE OTHER RED MEAT as a trademark that would highlight
Opposition No. 91166701
- 58 -
the healthy and nutritious features of salmon. [Stramaglia
at 33—34] If this is in fact the connotation that
applicant intended for its mark, we find it telling that
this is the same connotation (with respect to pork)
underlying opposers’ slogan and expensive demand
enhancement efforts. In that case, this explanation
further supports a finding under this dilution factor that
applicant was intending to “create an association with the
famous mark.”
While we are reluctant to conclude bad faith on the
part of applicant, we find that applicant’s principals may
have believed it was permissible for applicant to create
such an association, and hence, consistent with a likelihood
of dilution by blurring, resolve this factor in opposers’
favor.
Any actual association between the mark or trade name and the famous
mark.
In a situation like this where applicant has filed an
intent-to-use application and has to date not engaged in
any actual use of the junior mark, it is impossible to
present any evidence of actual association between the marks
in the marketplace. Accordingly, it seems that this
Opposition No. 91166701
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statutory factor too is neutral but consistent with a
likelihood of dilution by blurring.36
Accordingly, after considering all the relevant
factors, we find herein a likelihood of dilution by
blurring.
Likelihood of Confusion
Because we have found for opposer in connection with
its likelihood of dilution claim, we do not reach its claim
of likelihood of confusion.
Decision: The opposition on the ground of likelihood
of dilution is sustained and registration to applicant of
its THE OTHER RED MEAT mark is hereby refused.

36 Opposers argue that Mr. Klein’s litigation survey provides a
probative substitute for what is likely to occur in the
marketplace were applicant to use its intended mark. As noted
earlier, this survey shows that for thirty-five percent of the
survey respondents, applicant’s slogan THE OTHER RED MEAT calls
to mind either opposers’ actual slogan or the pork products the
slogan promotes. [Klein at 72; Ex. 317; Williams-III at 282]
While opposers are correct that this survey evidence suggests
that a high degree of association is likely (i.e., that more than
a third of the respondents associated applicant’s slogan with
opposers’ slogan), we cannot logically draw from this compelling
survey result any conclusions about “actual association.”