Ruggiero Seafood, Inc.v.Salvatore Ruggiero

Trademark Trial and Appeal BoardFeb 1, 2010

No. 91171272 (T.T.A.B. Feb. 1, 2010)

Mailed: February 1, 2010 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board ______ Ruggiero Seafood, Inc. v. Salvatore Ruggiero _____ Opposition No. 91171177 to application Serial No. 78533681 filed on December 16, 2004 Opposition No. 91171272 to application Serial No. 78533673 filed on December 16, 2004 _____ Richard S. Schurin of Gottlieb, Rackman & Reisman, P.C. for Ruggiero Seafood, Inc. John Maeir, III, Esq. for Salvatore Ruggiero. ______ Before Hairston, Bucher and Bergsman, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Salvatore Ruggiero (applicant) filed intent-to-use applications for the marks FRANCESCO RUGGIERO and SALVATORE J. RUGGIERO, in standard character form, both for “seafood,” in Class 29. Ruggiero Seafood, Inc. (opposer) opposed the registration of applicant’s marks on the ground of priority of use and likelihood of confusion. Opposer alleged that it THIS OPINION IS NOT A PRECEDENT OF THE TTAB Opposition No. 91171177 Opposition No. 91171272 2 has been selling seafood for over 80 years; that it has been using RUGGIERO SEAFOOD as a trademark and trade name since prior to the filing date of applicant’s applications; and that the marks FRANCESCO RUGGIERO and SALVATORE J. RUGGIERO for seafood so resemble the trademark and trade name RUGGIERO SEAFOOD for seafood as to be likely to cause confusion. Applicant, in his answers, denied the salient allegations of the notices of opposition. The Record By operation of Trademark Rule 2.122, 37 CFR §2.122, the record includes the pleadings and the application files for applicant’s marks. The only other evidence is the testimony deposition of Rocco Ruggiero, opposer’s President, with attached exhibits. Only opposer filed a brief. Standing Mr. Ruggiero testified that opposer sells seafood.1 The exhibits show that opposer uses RUGGIERO SEAFOOD as a trademark for squid and as a trade name for its business.2 This is sufficient to establish opposer’s standing. 1 Ruggiero Dep., pp. 7 and 10. 2 Ruggiero Dep., Exhibits 2-4. Opposition No. 91171177 Opposition No. 91171272 3 Priority Mr. Ruggiero testified that he began working for Ruggiero Seafood in 1971.3 This is sufficient to show that opposer was using Ruggiero Seafood as a trade name at least as early as 1971 and prior to the filing date of the applications at issue. Likelihood Of Confusion 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 issue of likelihood of confusion. 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 Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by §2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks”). A. The similarity or dissimilarity and nature of the goods as described in the application and opposer’s registrations. The goods are identical (i.e., seafood). 3 Ruggiero Dep., p. 6. Opposition No. 91171177 Opposition No. 91171272 4 B. The similarity or dissimilarity of established, likely- to-continue trade channels and buyers to whom sales are made. Mr. Ruggiero testified that opposer sells its seafood to wholesalers, retailers, seafood distributors, and foodservice companies.4 Applicant’s description of goods is “seafood.” Because there are no restrictions or limitations in applicant’s description of goods, we must assume that applicant’s seafood is sold through all normal channels of trade for those goods and that they are available to all types of consumers, including seafood wholesalers, seafood retailers, seafood distributors, and foodservice companies. In re Bercut-Vandervoort & Co., 229 USPQ763, 764-765 (TTAB 1986); Morton-Norwich Products, Inc. v. N. Siperstein, Inc., 222 USPQ 735, 736 (TTAB 1984); Faberge, Incorporated v. Haw Par Brothers International Limited, 218 USPQ 861, 864 (TTAB 1983). Therefore, we find that applicant’s and opposer’s seafood move in the same channels of trade and are sold to the same classes of consumers. C. The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. We now turn to the du Pont factor focusing on the similarity or dissimilarity of applicant’s marks and opposer’s trade name in their entireties as to appearance, sound, connotation and commercial impression. In re E. I. 4 Ruggiero Dep., p. 7. Opposition No. 91171177 Opposition No. 91171272 5 du Pont De Nemours & Co., 177 USPQ at 567. Where, as in this case, applicant’s marks and opposer’s trade name appear on identical goods, the degree of similarity between the marks and trade name that is necessary to support a finding of likelihood of confusion declines. Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). Applicant’s marks and opposer’s trade name in their entireties are similar because they share the surname “Ruggiero,” and consumers will consider SALVATORE J. RUGGIERO and FRANCESCO RUGGIERO to be variants of opposer’s RUGGIERO SEAFOOD trade name. In this regard, it is common knowledge that people often abbreviate a full name to simply a surname. [C]ompanies are frequently called by shortened names, such as Penney’s for J.C. Penney’s, Sears for Sears and Roebuck (even before it officially changed its name to Sears alone), Ward’s for Montgomery Ward’s, and Bloomie’s for Bloomingdale’s. Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333 (TTAB 1992). Accordingly, we find that consumers familiar with the trade name RUGGIERO SEAFOOD upon encountering seafood sold under the name SALVATORE J. RUGGIERO or FRANCESCO RUGGIERO would likely be misled into thinking that the products emanate from a single source because of the similarities of the marks and trade name. Opposition No. 91171177 Opposition No. 91171272 6 D. Balancing the factors. In weighing the likelihood of confusion factors present in this case, we find that the applicant’s marks and opposer’s trade name are similar, the goods are identical and the channels of trade and classes of consumers are the same. Therefore, applicant’s marks SALVATORE J. RUGGIERO and FRANCESCO RUGGERIO for seafood so resemble opposer’s trade name RUGGIERO SEAFOOD for seafood as to be likely to cause confusion. Decision: The opposition is sustained and registration to applicant is refused.