Ralston Purina Co.v.Robert Lelle

Trademark Trial and Appeal Board

Sep 13, 1999

No. 91108129 (T.T.A.B. Sep. 13, 1999)

Paper No. 12
HRW
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 9/13/99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Ralston Purina Company
v.
Robert Lelle
_____
Opposition No. 108,129
to application Serial No. 75/207,920
filed on December 4, 1996
_____
Alpheus E. Forsman for Ralston Purina Company.
Robert Lelle, pro se.
______
Before Seeherman, Quinn and Wendel, Administrative Trademark
Judges.
Opinion by Wendel, Administrative Trademark Judge:
Robert Lelle filed an application to register the mark
GRRRRIBS in the stylized format shown below for “edible dog
treats.”1
Opposition No. 108,129
2
Ralston Purina Company filed an opposition to
registration of the mark on the ground of likelihood of
confusion under Section 2(d) of the Trademark Act. Opposer
alleges use since long prior to December 4, 1996 of the mark
GRRRAVY for dog food; ownership of a registration for this
mark;2 and the likelihood of confusion if applicant were to
use his mark for his identified goods.
Applicant, in his answer, denied the salient
allegations in the notice of opposition. Applicant has
taken no action in the case since the filing of this
answer.3
The record consists of the file of the involved
application and the certified copies of opposer’s pleaded
registration which were made of record by means of opposer’s
notice of reliance. Opposer filed a brief, but an oral
hearing was not requested.
Priority is not an issue here, in view of the certified
status and title copy of its pleaded registration which
opposer has made of record. King Candy Co., Inc. v. Eunice

1 Serial No. 75/207,920, filed December 4, 1996, based on an
assertion of a bona fide intention to use the mark in commerce.
2 Reg. No. 1,486,380, issued April 26, 1988 for the mark GRRRAVY
for dog food. Combined Section 8 & 15 affidavit filed and
accepted.
3 Applicant filed, as part of his answer, a “response” which
might be construed as applicant’s brief on the case. As such,
the paper was not filed within the time set for filing a brief,
and, accordingly, it has been given no consideration. See
Trademark Rule 2.128(a)(1). Even if considered, however, it is
not persuasive of a different result on the merits of this case.
Opposition No. 108,129
3
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA
1974).
Thus, we turn to the issue of likelihood of confusion
and to those of the du Pont factors which are relevant under
the present circumstances.4
Insofar as the goods of the parties are concerned, we
find little, if any, difference between opposer’s dog food
and applicant’s edible dog treats. Both are eaten by dogs,
whether as a basic food or a treat. Moreover, the word
“food” obviously includes “treats,” making the goods
virtually identical for purposes of our determination of
likelihood of confusion.
As such, the goods would travel in the same channels of
trade and be marketed to the same purchasers in the same
retail outlets. The issue narrows down to whether the marks
are of such a degree of similarity that confusion as to
source is likely on the part of these purchasers when they
encounter GRRRAVY dog food and GRRRRIBS(stylized) dog
treats. It is well recognized that in general the greater
the similarity of the goods, the lesser the degree of
similarity of the marks necessary to conclude that there
will be a likelihood of confusion. Century 21 Real Estate

4 In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973).
Opposition No. 108,129
4
Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698 (Fed. Cir. 1992).
Looking at the marks, we note that both marks start
with GRRR or GRRRR, the difference of one “R” being
virtually meaningless, similar to the growling sound of a
dog. The remainder of the marks GRRRAVY and GRRRRIBS both
suggest a type of food, GRRRAVY a dog food having a gravy
component and GRRRRIBS a dog treat which is flavored like or
would be chewed like a “rib.” The use of the same basic
format in each mark (GRRR plus type of food) results in a
very similar overall commercial impression, such that we
find it likely that purchasers would mistakenly assume that
GRRRAVY dog food and GRRRRIBS dog treats are two products
originating from the same source. If these purchasers were
already familiar with GRRRAVY dog food, they might well
assume that the GRRRRIBS dog treat was a new product from
the same source. See NutraSweet Co. v. K & S Foods, Inc., 4
USPQ2d 1964 (TTAB 1987).
Accordingly, we find the likelihood of confusion as to
the source of the respective dog food products, particularly
in view of the virtual identity of the goods and the similar
commercial impressions projected by the marks GRRRAVY and
GRRRRIBS.
Opposition No. 108,129
5
Decision: The opposition is sustained.
E. J. Seeherman
T. J. Quinn
H. R. Wendel
Trademark Administrative Judges,
Trademark Trial and Appeal Board