New England Herbal Foods, LLC

Trademark Trial and Appeal BoardJun 23, 2016

No. 86689805 (T.T.A.B. Jun. 23, 2016)

This Opinion is not a Precedent of the TTAB Mailed: June 23, 2016 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re New England Herbal Foods, LLC _____ Serial No. 86689805 _____ Daniel S. Kirshner of Daniel S. Kirshner Attorney at Law LLC, for New England Foods, LLC. Joshua S. Toy, Trademark Examining Attorney, Law Office 120, David Miller, Managing Attorney. _____ Before Taylor, Wellington, and Gorowitz, Administrative Trademark Judges. Opinion by Wellington, Administrative Trademark Judge: New England Foods, LLC (“Applicant”) seeks registration on the Principal Register of the mark TAVOLA RUSTIC BAKING, in standard characters with RUSTIC BAKING disclaimed, for “wheat based snack food; rice based snack food” in International Class 30.1 1 Application Serial No. 86689805, filed on July 10, 2015, is based on use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). June 28, 2015 is claimed in the application as the date of first use of the mark anywhere and in commerce. Serial No. 86689805 - 2 - The Trademark Examining Attorney refused registration of Applicant’s mark, under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used in connection with the identified goods, so resembles the registered standard character mark TAVOLA PARADISO (Reg. No. 4655207) for “biscotti, cookies, crackers” in International Class 30,2 that it is likely to cause confusion. When the refusal was made final, Applicant appealed. The Examining Attorney and Applicant have filed briefs. For the following reasons, we affirm the refusal. Likelihood of Confusion Our likelihood of confusion determination is based on facts as they relate to the relevant factors set out in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In considering the evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see also In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). Similarity of the Goods With regard to the goods, channels of trade and classes of consumers, it is well- established that we must make our determination based on the goods as they are 2 Issued on December 16, 2014. Serial No. 86689805 - 3 - identified in the cited registrations and involved application. See In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). The Examining Attorney argues that the respective goods, as they are identified in the involved application and cited registration, are “significantly similar” because “registrant’s goods narrowly identified as biscotti, cookies, and crackers are types of the applicant’s goods broadly identified as wheat based snack food and rice based snack food.”3 In essence, the Examining Attorney contends that Applicant’s goods must be “presumed to encompass” Registrant’s goods. In support, the Examining Attorney submitted printouts from three different websites featuring cookies, crackers and biscotti that are described as being wheat-based or a substitute for “wheat-based items that most people are accustomed to eating.”4 The following are excerpts: 3 6 TTABVUE 4. 4 Submitted with Office action issued on October 27, 2015. Serial No. 86689805 - 4 - [from Lucy’s Blog website, www.drlucys.com]; Serial No. 86689805 - 5 - [from “Potters Crackers” website, www.potterscrackers.com]; and [from “The Gourmet Retailer” website, www.gourmetretailer.com]. In addition, the Examining Attorney submitted copies of ten third-party, use- based registrations for marks that cover both Registrant’s goods, e.g., biscotti, cookies or crackers, as well as goods like Applicant’s, e.g., rice or wheat based snacks. For example: CUP O JOE stylized with a design (Reg. No. 1966192) for “cookies … biscotti … and wheat-based snacks”; CARA MIA (Reg. No. 2889673) for “rice based snack foods … biscotti, cookies …”; FANSNACKS (Reg. No. 4867045) for “crackers … wheat-based snack foods”; and SNACK HOUSE (Reg. No. 4880491) for “crackers, cookies … rice-based snack foods.” Serial No. 86689805 - 6 - This evidence shows that the goods are of a kind that may emanate from a single source under a single mark. See In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (citing In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988)); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785- 86 (TTAB 1993). See also TMEP §1207.01(d)(iii). Applicant states that it disagrees with the Examining Attorney and, without any evidentiary support, asserts that it “does not believe that there is a likelihood that a producer who makes cookies would branch out into making, wheat or rice based snack foods, or that the relevant consuming public would believe that to be the case.”5 In this case, we agree with the Examining Attorney and the record confirms that Applicant’s wheat- and rice-based snack foods are very closely related to, if not encompassing of, Registrant’s biscotti, cookies, and crackers. The third-party website evidence shows that biscotti, cookies and crackers may be wheat flour or wheat-based products. Furthermore, the term “snack,” itself, means “a small amount of food eaten between meals.”6 Given this broad meaning, Applicant’s identification of goods would presumably encompass Registrant’s goods. 5 4 TTABVUE 8-9. 6 "Snack." Merriam-Webster.com Merriam-Webster’s Learner’s Dictionary. The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). The dictionary-provided examples of the word “snack” in sentences include: “He had a snack of chips and dip. I didn't have time for lunch so I just grabbed a quick snack. Peanuts, potato chips, and other snack foods.” Serial No. 86689805 - 7 - To the extent that Applicant’s goods encompass Registrant’s goods or, based merely on the fact that the involved goods are general consumer food items, they are legally identical and we must presume that they will be found in the same trade channels for these types of goods and that the purchasers of these goods would be the same. Stone Lion Capital Partners, 110 USPQ2d at 1162; Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Even if the goods are not legally identically, they are very closely related and both would be offered to ordinary consumers of snack foods, cookies and crackers, which would obviously include the general public. Moreover, given the relatively inexpensive nature of these goods, consumers will only exercise normal care or may even make impulse purchasing decisions. “When products are relatively low-priced and subject to impulse buying, the risk of likelihood of confusion is increased because purchasers of such products are held to a lesser standard of purchasing care.” Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000); Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 223 USPQ 1281, 1282 (Fed. Cir. 1984). Similarity of the Marks We now consider whether Applicant’s mark, TAVOLO RUSTIC BAKING, is similar to the registered mark, TAVOLO PARADISO, and compare them “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, Serial No. 86689805 - 8 - 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). In making our determination we focus on the recollection of the average purchaser, who normally retains a general rather than specific impression of the trademarks. In re Cynosure, Inc., 90 USPQ2d 1644, 1645 (TTAB 2009); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). See also Palm Bay Imports, 73 USPQ2d at 1695 (“[G]eneral consumers, not just connoisseurs, occasionally purchase champagne or sparkling wines on celebratory occasions, with little care or prior knowledge”). In this case, we find the marks to be very similar inasmuch as TAVOLA is first word of each mark and the remaining wording of the marks does not overcome the similarity. As to sound and appearance, there will obviously be some similarity due to the shared initial term, TAVOLA. While the marks also differ in that they each have additional wording, we keep in mind the importance of the first terms in marks and the impression it makes on consumers. Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered”); see also, Palm Bay Imports, 73 USPQ2d 1692; Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). As to the commercial impressions and connotations created by the marks, the term TAVOLA plays a central role in both marks. Consumers will likely focus on TAVOLA, which is translated from Italian into English as “table,”7 and has no demonstrated 7 The Examining Attorney attached a Google translate printout indicating “tavola” in Italian means “table” in English, submitted with Office action issued on October 27, 2015. Serial No. 86689805 - 9 - significance in connection with the identified goods. In contrast, the remaining wording in Applicant’s mark, RUSTIC BAKING, is disclaimed and plays a lesser role in distinguishing the mark. See In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark's commercial impression”). Consumers viewing Applicant’s mark in its entirety are likely to perceive the RUSTIC BAKING portion as being merely descriptive or suggestive of the manner or style in which Applicant’s snack food is prepared. As to Registrant’s mark, TAVOLA PARADISO, it translates from Italian to English as “table paradise” (see footnote 7, supra). There is no evidence to suggest that the mark or “table paradise,” as a unitary term, has any special meaning in the context of the identified goods or otherwise. Applicant argues in its brief that “Tavola is an adjective, a modifier … [i]t modifies the word Paradiso [and] [t]he entire mark has the meaning of Table of Paradise.”8 However, it has not been shown how such a meaning would significantly alter the overall commercial impression or connotation of Registrant’s mark or otherwise obviate the similarity to Applicant’s mark based on the share use of the term TAVOLA. Indeed, purchasers already familiar with the biscotti, cookies and crackers sold under TAVOLA PARADISO are likely to perceive Applicant’s mark as a variant mark introducing a new line of snacks. Moreover, Applicant provided a translation statement in the application to the same effect and cited registration contains a translation statement “The English translation of the word "TAVOLA PARADISO" in the mark is "TABLE PARADISE". 8 4 TTABVUE 8. Serial No. 86689805 - 10 - In sum, we find the marks in their entireties are overall more similar than not. Any differences in their commercial impressions are not sufficiently significant to overcome the similarity, particularly since TAVOLA has not been shown to have any special meaning nor to be a weak or diluted term. Conclusion Based on the closely related, if not legal identity, of the goods being sold to the same consumers and the overall similarity of the marks, we find confusion is likely. Decision: The refusal to register under Section 2(d) is affirmed. The application will be abandoned in due course.