Nutritional Source, Inc.

Trademark Trial and Appeal Board

Dec 28, 1999

No. 75294991 (T.T.A.B. Dec. 28, 1999)

Paper No. 11
CEW
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB DEC. 28, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Nutritional Source, Inc.
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Serial No. 75/294,991
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Edward D. Lanquist, Jr. of Waddy & Patterson for applicant.
Tina L. Snapp, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
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Before Cissel, Walters and Wendel, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
Nutritional Source, Inc. has filed a trademark
application to register the mark HEALTH RICH1 for the
following goods:
Liquid and powdered dietary food supplements in
the nature of shakes and puddings; nutritional
supplements in the nature of food bars, in
International Class 5;
Puddings; teas; flavored and sweetened gelatin
desserts; hot chocolate; ready-to-eat cereal

1 Serial No. 75/294,991, in International Class 30, filed May 20, 1997,
based on an allegation of a bona fide intention to use the mark in
commerce.
Serial No. 75/294,991
2
derived food bars; salad dressings, namely,
pourable salad dressing and dry salad dressing
mixes; bakery products, namely, rolls, donuts,
cookies, brownies, breads, bread sticks, muffins,
biscottis and crackers; dry processed cereals;
granola; oatmeal; dried pasta; prepared entrees
consisting primarily of pasta, namely, fettuccini
alfredo, pasta and chicken, macaroni and cheese,
and tomato paste; pretzels; popped popcorn with
added spices and coatings; pancake mixes; dry
food mixes, namely, spaghetti, curries, and taco
fillings, in International Class 30;2
Dry unprocessed cereals, in International Class
31; and
Fruit drinks, in International Class 32.
The Trademark Examining Attorney has finally refused
registration under Section 2(d) of the Trademark Act, 15
U.S.C. 1052(d), on the ground that applicant’s mark so
resembles the mark HEALTHRICH FARMS, previously registered
for “fresh and frozen ostrich meat, processed ostrich in
the form of jerky, sausage, ham and ostrich sticks; and
processed food containing ostrich meat in the form of
soup,”3 that, if used on or in connection with applicant’s

2 The Examining Attorney finally refused registration on the ground that
applicant’s identification of goods in International Class 30 was
indefinite. Subsequent to the briefing period, but prior to this
decision, applicant submitted an amendment to the identification of
goods to adopt the language proposed by the Examining Attorney.
Therefore, the issue pertaining to the identification of goods in
International Class 30 is moot.
3 Registration No. 2,036,879 issued February 11, 1997, to Ostrich
Producers Coop of the Mid-West, in International Class 29. The
registration includes a disclaimer of FARMS apart from the mark as a
whole.
Serial No. 75/294,991
3
goods, it would be likely to cause confusion or mistake or
to deceive.
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested. We affirm the refusal to register.
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
confusion issue. See, In re E. I. duPont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In the
analysis of likelihood of confusion in this case, two key
considerations are the similarities or differences between
the marks and the similarities or differences between the
goods. Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
We turn, first, to a determination of whether
applicant’s mark and the registered mark, when viewed in
their entireties, are similar in terms of appearance,
sound, connotation and commercial impression. The test is
not whether the marks can be distinguished when subjected
to a side-by-side comparison, but rather whether the marks
are sufficiently similar in terms of their overall
commercial impression that confusion as to the source of
the goods offered under the respective marks is likely to
Serial No. 75/294,991
4
result. The focus is on the recollection of the average
purchaser, who normally retains a general rather than a
specific impression of trademarks. See, Sealed Air Corp.
v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). Furthermore,
although the marks at issue must be considered in their
entireties, it is well settled that one feature of a mark
may be more significant than another, and it is not
improper to give more weight to this dominant feature in
determining the commercial impression created by the mark.
See, In re National Data Corp., 753 F.2d 1056, 224 USPQ 749
(Fed. Cir. 1985).
In this case, applicant’s mark, HEALTH RICH, is
identical to the first word of registrant’s mark,
HEALTHRICH FARMS. The fact that the two words forming
applicant’s mark are blended into a single word in
registrant’s mark does not materially alter the appearance,
sound or connotation of the term. While registrant’s mark
includes the word FARMS, it is a merely descriptive (and,
accordingly, disclaimed) term that does not significantly
distinguish registrant’s mark from applicant’s mark.
Consumers confronting the two marks at different times and
in different contexts are likely to remember the dominant
HEALTHRICH portion of registrant’s mark. Thus, we find the
commercial impressions of the two marks to be sufficiently
Serial No. 75/294,991
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similar that, if used on the same, similar or related
goods, confusion would be likely.
Turning to consider the goods, the Examining Attorney
contends that “[t]he goods are related generally in that
they are food items for human consumption”; and that “there
are numerous entities using individual marks in conjunction
with both meat entrees … and pasta entrees[,] producing
sausages … as well as pastas[,] [and] producing prepared
meats and bakery products.” In support of her position,
the Examining Attorney submitted copies of third-party
registrations. At least nine of the third-party
registrations included both prepared meat entrees and/or
side dishes and prepared pasta entrees and/or side dishes;
one registration included both canned meat and pasta; and
another registration included both sausage and pasta.
Applicant has made several arguments based upon
statements about the exact nature of its goods and
applicant’s and registrant’s channels of trade. However,
both applicant’s and registrant’s goods are broadly
identified and the application and registration contain no
limitations as to channels of trade. It is a well
established principle that “[t]he question of likelihood of
confusion must be determined based on an analysis of the
mark as applied to the goods and/or services recited in
Serial No. 75/294,991
6
applicant’s application vis-à-vis the goods and/or services
recited in [the] registration, rather than what the
evidence shows the goods and/or services to be.” Canadian
Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813, 1815 (Fed. Cir. 1987).
However, even if, as the Examining Attorney contends,
the respective goods may broadly be considered as “food
items for human consumption,” the mere fact that a term may
be found which encompasses the parties’ products does not
mean that customers will view the goods as related in the
sense that they will assume that they emanate from or are
associated with a common source. See, e.g., General
Electric Co. v. Graham Magnetics Inc., 197 USPQ 690, 694
(TTAB 1977) and Harvey Hubbell Inc. v. Tokyo Seimitsu Co.,
Ltd., 188 USPQ 517, 520 (TTAB 1975). The record is devoid
of any evidence indicating any relationship between
registrant’s goods and applicant’s goods identified in
International Classes 5, 31 and 32 such that consumers
would be likely to believe that these goods emanate from
the same source. Therefore, we find no likelihood of
confusion with respect to the goods identified in
International Classes 5, 31 and 32 of the application.
On the other hand, we find that confusion is likely
with respect to the goods identified in the application in
Serial No. 75/294,991
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International Class 30. Applicant’s goods include prepared
pasta entrees, which contain, in part, chicken; and food
mixes, namely spaghetti, curries and taco fillings.
Registrant’s ostrich meat products include processed food
in the form of soup. While it is quite true that the goods
are different, it is well-settled that the goods of an
applicant and registrant need not be similar or even
competitive in order to support a holding of likelihood of
confusion, it being sufficient for the purpose if such
goods are related in some manner and/or if the
circumstances surrounding their marketing are such that
they would be likely to be encountered by the same persons
under conditions that would give rise, because of the marks
used thereon, to the mistaken belief that they emanate from
or are in some way associated with the same source. See,
In re Kangaroos U.S.A., 223 USPQ 1025, 1026-1027 (TTAB
1984), and cases cited therein. In this case, both
applicant’s entrees and mixes and registrant’s soups are
prepared meals that, based on the evidence of record, could
reasonably emanate from the same source.
Therefore, we conclude that in view of the substantial
similarity in the commercial impressions of applicant’s
mark, HEALTH RICH, and registrant’s mark, HEALTHRICH FARMS,
their contemporaneous use on the goods identified in
Serial No. 75/294,991
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International Class 30 is likely to cause confusion as to
the source or sponsorship of such goods.
Finally, to the extent that we have any doubt
concerning our conclusion that confusion is likely with
respect to applicant’s goods in International Class 30, we
are obligated to resolve such doubt in favor of the
registrant. In re Hyper Shoppes (Ohio), Inc., 837 F.2d
463, 6 USPQ2d 1025 (Fed Cir. 1988).
Decision: The refusal under Section 2(d) of the Act
is affirmed with respect to applicant’s identified goods in
International Class 30; and reversed with respect to
applicant’s identified goods in International Classes 5, 31
and 32.
R. F. Cissel
C. E. Walters
H. R. Wendel
Administrative Trademark Judges,
Trademark Trial and Appeal Board