Peet Packing Co.

Trademark Trial and Appeal Board

May 26, 1999

No. 73664444 (T.T.A.B. May. 26, 1999)

Hearing: Paper No. 23
July 9, 1998 PTH
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Peet Packing Company
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Serial No. 73/664,444
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Allen M. Krass and John Posa of Gifford, Krass, Groh,
Sprinkle, Patmore, Anderson & Citkowski, P.C. for Peet
Packing Company.
Jerry L. Price, Senior Trademark Examining Attorney, Law
Office 101 (R. Ellsworth Williams, Managing Attorney).
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Before Simms, Seeherman and Hairston, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
Peet Packing Company has appealed from the refusal of
the Senior Trademark Examining Attorney to register the
mark BONANZA in typed capital letters for “hams.”1
Registration has been refused pursuant to Section 2(d) of

1 Concurrent Use Application Serial No. 73/664,444 filed June 3,
1987; alleging a date of first use of August 1963 and date of
first use in commerce of 1972.
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the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when used in connection with the
identified goods, is likely to cause confusion with the
following marks, all registered by the same entity for
restaurant services:
BONANZA SIRLOIN PIT;2
3
4
5

2 Registration No. 791,172 issued June 15, 1965; renewed. The
word “SIRLOIN” is disclaimed.
3 Registration No. 917,854 issued August 3, 1971; renewed. The
word “SIRLOIN” is disclaimed.
4 Registration No. 1,022,903 issued October 14, 1975; renewed.
5 Registration No. 1,022,904 issued October 14, 1975; renewed.
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The case has been fully briefed7 and an oral hearing
was held.
We turn first to the question of likelihood of
confusion vis-à-vis the registrations for BONANZA in
stylized lettering and for BONANZA with background designs
since these are the most pertinent of the cited
registrations.
Turning then to the marks, they are virtually
identical. One of the cited marks is only slightly
stylized and the other two have background designs which
are not particularly distinctive. Because applicant seeks
to register its mark in typed capital letters, it would be
free to depict its mark in the same stylized lettering as
registrant or even with similar background designs.

6 Registration No. 1,481,977 issued March 2, 1988; Sections 8 &
15 affidavit filed.
7 Applicant submitted with its appeal brief the results of a
search of the Internet of businesses with the word “Bonanza” in
their names. The Examining Attorney has properly objected to
this evidence as being untimely submitted. See Trademark Rule
2.142(d) which provides that the record in the application should
be complete prior to the filing of the appeal and that the Board
will ordinarily not consider evidence submitted after an appeal
is filed. In view thereof, we have given no consideration to
this evidence in reaching our decision.
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Applicant has attempted to minimize the substantial
identity of the marks, pointing to the coexistence of a
number of third-party registrations which include the word
BONANZA. The Board has, on numerous occasions, stated that
third-party registrations are of little probative value in
determining likelihood of confusion in the absence of
evidence to establish their use in the marketplace.
Although they are registered, there is no evidence here
that the marks are or have been in use or, if they are or
have been used, whether such use was sufficient to enable
the marks to have made some impact in the field. A further
problem with the third-party registrations here is that
most of the registrations cover goods or services far
removed from the type of goods and services involved in
this appeal. See In re Melville Corp., 18 USPQ2d 1368,
1388-89 (TTAB 1991).
With respect to the goods and services, we note that
likelihood of confusion may be found if the goods and
services are related in some manner or, because of
marketing circumstances, the marks are likely to be
encountered by the same persons under conditions that could
give rise to the mistaken belief that they are in some way
associated with the same source. See Monsanto Co. v.
Enviro-Chem. Corp., 199 USPQ 590 (TTAB 1978). In this
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case, the Examining Attorney argues that the goods and
services are related because ham is often a featured item
in restaurants and because restaurants sometimes offer
their specialties in packaged form for sale in grocery
stores to consumers.
In support of his position that the goods and services
are related, the Examining Attorney submitted a number of
third-party registrations for marks which show that
entities have registered the same mark for restaurant
services and ham. For example, the design of an individual
preparing food over an oven is registered for restaurant
services and hams; the marks ROADHOUSE RIBS and design,
COUNTRY GLAZED HAM CO. and design, STICK TO YOUR RIBS and
design, and FRIENDLY ICE CREAM are registered for
restaurant services and ham; and the design of a man and
woman sitting around a table is registered for restaurant
services and ham sandwiches. These registrations, while
not evidence that the marks shown therein are in use or
that the public is familiar with them, have some probative
value to the extent that they show that the goods and
services involved in this appeal may emanate from the same
source under the same mark. See, e.g., In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993) and In re
Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467 (TTAB 1988).
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Further, the Examining Attorney submitted six registrations
which show that ham and ham sandwiches are menu items at
restaurants.
Also, we note that our principal reviewing Court and
this Board have found a likelihood of confusion in cases
involving food or restaurant services and meats. See e.g.,
In re H. J. Seiler Co., 289 F.2d 674, 129 USPQ 347 (CCPA
1961) [Customers of SEILER’S food catering services held
likely to believe that SEILER’S bacon, bologna, dried beef,
boneless butts, ham, luncheon roll, meat loaf, pork roll
sausage and scrapple in the grocery store comes from the
same source]; In re Appetito Provisions Co., Inc., 3 USPQ2d
1553 (TTAB 1987) [Use of APPETITO for Italian sausages is
likely to cause confusion with A APPETITO’S and A
APPETITO’S INC. and sandwich design for restaurant
services]; and In re Best Western Family Steak House, Inc.,
222 USPQ 827 (TTAB 1984) [Use of BEEFMASTER for restaurant
services is likely to cause confusion with BEEF MASTER for
frankfurters and bologna].
In view of the foregoing, we conclude that consumers
familiar with registrant’s restaurant services offered
under the marks BONANZA in stylized lettering and BONANZA
with the background designs would be likely to believe,
upon encountering applicant’s mark BONANZA for hams, that
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the goods and services originated with or were somehow
associated with the same source.
To the extent that we have any doubt on the issue of
likelihood of confusion, such doubt must be resolved in
favor of registrant. In re Pneumatiques, Caoutchouc
Manufacture et Plastiques Kleber-Colombes, 487 USPQ F.2d
918, 179 USPQ 729 (CCPA 1973).
In view of our decision herein, we need not reach the
question of likelihood of confusion vis-à-vis applicant’s
BONANZA mark and registrant’s marks BONANZA SIRLOIN PIT and
BONANZA SIRLOIN PIT and design.
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Decision: The refusals to register with respect to
Registration Nos. 1,022,903, 1,022,904 and 1,481,977 are
affirmed.
R. L. Simms
E. J. Seeherman
P. T. Hairston
Administrative Trademark
Judges, Trademark Trial and
Appeal Board
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