Southeast-Atlantic Beverage Corp.

Trademark Trial and Appeal Board

Aug 22, 2003

No. 76159275 (T.T.A.B. Aug. 22, 2003)

Mailed: August 22, 2003
Paper No. 11
BAC
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Southeast-Atlantic Beverage Corporation
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Serial No. 76/159,275
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Thomas A. Reynolds of Reynolds Law Firm for Southeast-
Atlantic Beverage Corporation.
Sophia S. Kim, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
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Before Seeherman, Hairston and Chapman, Administrative
Trademark Judges.
Opinion by Chapman, Administrative Trademark Judge:
On November 3, 2000, Southeast-Atlantic Beverage
Corporation (a Florida corporation) filed an application to
register on the Principal Register the mark shown below
for goods identified, as amended, as “non-alcoholic
beverages, namely, carbonated and non-carbonated soft
THIS DISPOSITION IS
NOT CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76/159275
2
drinks” in International Class 32.1 The application is
based on applicant’s assertion of its bona fide intention
to use the mark in commerce on the identified goods.
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the
ground that applicant’s mark, when used on its identified
goods, would so resemble the registered mark BRAVO! for
“powders for making soft drinks” in International Class 32,2
as to be likely to cause confusion, mistake or deception.
Applicant has appealed, and briefs have been filed.
Applicant did not request an oral hearing.
We affirm the refusal to register. In reaching this
conclusion, we have followed the guidance of the Court in
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also, In re Majestic Distilling
Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and
the similarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1 The identification of goods in the original application was set
forth as follows: “production and sales of non-alcoholic
beverages.”
2 Registration No. 803,999, issued February 15, 1966, Section 8
affidavit accepted, renewed. The claimed date of first use is
March 18, 1964. The records of the USPTO indicate that the owner
by assignment of this registration is Del Monte Corporation.
Ser. No. 76/159275
3
1098, 192 USPQ 24 (CCPA 1976). See also, In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
Turning first to a consideration of the marks,
applicant’s mark and the registered mark are virtually
identical, both consisting of the word “BRAVO” and the
punctuation mark, “!.” When analyzing applicant’s mark in
stylized lettering and the registered typed mark, it is not
improper to give more weight to a dominant feature of a
mark, in this instance, the word BRAVO along with the
exclamation point appearing in both marks. See In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997); In re National Data Corporation, 753 F.2d 1056, 224
USPQ 749 (Fed. Cir. 1985); and In re Appetito Provisions
Co. Inc., 3 USPQ2d 1553 (TTAB 1987). Thus, applicant’s
mark and the registered mark are identical in sound and
connotation, and are very similar in appearance and
commercial impression. Moreover, registrant’s mark appears
in typed form and, therefore, the protection to be accorded
registrant’s registration extends to stylization of its
mark, including in lettering similar to that of applicant’s
mark.3
3 Applicant’s willingness to disclaim the term “BRAVO” (brief,
unnumbered page 2) is of no avail because the technicality of a
Ser. No. 76/159275
4
Turning next to a consideration of the respective
goods, it is well settled that goods need not be identical
or even competitive to support a finding of likelihood of
confusion; it being sufficient that the goods are related
in some manner or that the circumstances surrounding their
marketing are such that they would likely be encountered by
the same persons under circumstances that could give rise
to the mistaken belief that they emanate from or are
associated with the same source. See In re Peebles Inc.,
23 USPQ2d 1795, 1796 (TTAB 1992); and In re International
Telephone and Telegraph Corporation, 197 USPQ 910 (TTAB
1978).
Also, it has been repeatedly held that, when
evaluating the issue of likelihood of confusion in Board
proceedings regarding the registrability of marks, the
Board is constrained to compare the goods (or services) as
identified in the application with the goods (or services)
as identified in the registration. See Octocom Systems
Inc. v. Houston Computer Services Inc., 918 F.2d 937, 16
USPQ2d 1783 (Fed. Cir. 1990); and Canadian Imperial Bank of
disclaimer has no legal effect on the issue of likelihood of
confusion, the public being unaware of what words have been
disclaimed during the prosecution of applications. See In re
National Data Corp., supra.
Ser. No. 76/159275
5
Commerce, N. A. v. Wells Fargo Bank, 811 F.2d 1490, 1
USPQ2d 1813 (Fed. Cir. 1987).
In this case, the registered mark is for “powders for
making soft drinks,” while applicant intends to sell “non-
alcoholic beverages, namely, carbonated and non-carbonated
soft drinks.” Applicant’s argument that the registrant’s
powders are sold to manufacturers and producers of soft
drinks, but applicant’s soft drinks would be sold to the
consuming public, is unsupported by evidence. Further, as
the Examining Attorney points out, “powders for making soft
drinks” is a broad identification of goods which could
include not only powder as an ingredient of soft drinks,
but also powder as a consumer soft drink mix, sold along
with liquid soft drinks.
We find the respective goods are closely related, and
could be sold through the same channels of trade, including
grocery stores, to the same classes of purchasers, the
public at large. See Chicago Dietetic Supply House v.
Perkins Products Co., 280 F.2d 155, 126 USPQ 367 (CCPA); In
re H & H Products, 228 USPQ 771 (TTAB 1986); and Seven-Up
Co. v. Aaron, 216 USPQ 807 (TTAB 1982). Moreover, the
goods are inexpensive products purchased on impulse.
Finally, applicant’s argument that it could not find
any use of the registered mark on the products for which
Ser. No. 76/159275
6
it is registered (brief-unnumbered page 2, and reply
brief) is irrelevant in the context of an ex parte appeal
of a refusal to register. If applicant had wished to
pursue such a claim, it should have filed a petition to
cancel the cited registration pursuant to Section 14 of
the Trademark Act.
Because of the essentially identical marks; the close
relationship of the respective goods; and the overlap of
the trade channels and purchasers; we find that there is a
likelihood that the purchasing public would be confused
when applicant uses its mark for its goods.
Decision: The refusal to register under Section 2(d)
is affirmed.