Trademark Manage-ment Company

Trademark Trial and Appeal Board

Nov 9, 2005

No. 75506617 (T.T.A.B. Nov. 9, 2005)

Mailed:
9 November 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Trademark Management Company
________

Serial No. 75506617
_______

Bert A. Collision and Gianfranco G. Mitrione of Lathrop &
Gage L.C. for Trademark Management Company.

Carol Spils, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
_______

Before Bucher, Drost, and Zervas, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:
On 22 June 1998, Trademark Management Company1
(applicant) applied to register the mark ALLEGRO (in
standard character or typed form) on the Principal Register
for goods ultimately identified as “sauces for pasta and
pizza sold in bulk to restaurants and private and public
institutions” in Class 30. The application identifies 16

1 The application was assigned to Trademark Management Company in
an assignment recorded at Reel/Frame No. 2320/0789.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser No. 75506617
2
March 1998 as the date of first use and the date of first
use in commerce. Applicant has also submitted a
translation of the mark as “quick,” “brisk,” and “lively.”
The examining attorney2 refused to register applicant’s
mark on the ground that its mark was confusingly similar to
four registrations owned by two different parties for the
following marks and goods:
I.
No. 2,476,011 (issued 07 August 2001)
Mark: ALLEGRA (typed)
Goods: Pasta (Class 30)
Owner: Fabrica de Pastas Alimenticias La Moderna S.A. de
C.V.

II.
No. 1,120,655 (issued 19 June 1979 – Renewed)
Mark: ALLEGRO (typed)
Goods: Steak marinade (Class 30)
Owner: Allegro Fine Foods, Inc.

III.
No. 1,671,882 (issued 14 January 1992 – Renewed)
Mark: ALLEGRO (typed)
Goods: Salad dressing (Class 29) and spices, ketchup,
vinegar, breading and cakes (Class 30)
Owner: Allegro Fine Foods, Inc.

IV.
No. 2,121,707 (issued 16 December 1997 – affidavits
under §§ 8 and 15 accepted and acknowledged)
Mark: ALLEGRO GOLD BUCKLE BRISKET SAUCE and design:3

2 The current examining attorney was not the original examining
attorney in this case.
3 The drawing of the mark in the registration does not clearly
show the word “Allegro.” The words “Brisket Sauce” have been
disclaimed. Because of the lack of clarity of the mark in the
USPTO’s electronic database, we will not consider this
registration in our likelihood of confusion analysis of the
examining attorney’s refusal based on the Allegro Fine Foods,
Inc. registrations.
Ser No. 75506617
3

Goods: Marinade (Class 30)
Owner: Allegro Fine Foods, Inc.
The examining attorney argues that applicant’s mark is
confusingly similar to the ‘011 registration because the
marks ALLEGRO and ALLEGRA are virtually identical and their
meaning could be the same. Regarding the ‘665 and ‘882
registrations, the marks are identical. The examining
attorney also submitted numerous copies of third-party
registrations to show that marks are registered “with the
same or similar goods” as those of applicant and
registrants in this case. Brief at 4. In its brief,
applicant argues that the goods are not related, the
“activities surrounding the marketing of the goods under
consideration here are so different that confusion of
origin is not likely” (Brief at 7), and “no actual
confusion is evidence of no likelihood of confusion” (Brief
at 10).
After the examining attorney made the refusals final,
this appeal followed.
Ser No. 75506617
4
When there is a question of likelihood of confusion,
we look to the factors set out by the Federal Circuit and
its predecessor court in cases such as In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed.
Cir. 2003); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d
1894, 1896 (Fed. Cir. 2000); and In re E.I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA
1973).
Two important factors in likelihood of confusion cases
concern the similarities of the marks and the relatedness
of the goods. Regarding registration Nos. ‘665 and ‘882,
the marks are for the identical word in applicant’s mark,
ALLEGRO. Concerning the ‘011 registration, the marks are
ALLEGRA and ALLEGRO. The examining attorney (Brief at 3)
points out that the applicant has admitted that the marks
are virtually identical. See Response dated 30 October
2003 at 10 (“ALLEGRO and ALLEGRA are almost identical
marks”). Furthermore, the examining attorney has provided
a declaration from a translator to the effect that “the
word allegra, as the feminine singular form of allegro, can
be translated as ‘cheerful.’” Final Office Action,
attachment. The only difference between these two marks is
the final letter, an “A” in the registration and an “O” in
the application. The marks would be very similar in sound
Ser No. 75506617
5
and appearance. Indeed, many prospective purchasers may
not recognize the difference in the final vowel. Also,
while applicant has translated the term in its mark as
“quick,” brisk,” and “lively” and registrant has translated
the term as “happy” or “cheerful,” the examining attorney
has submitted evidence that both terms may be translated as
“cheerful.” Therefore, their meanings could be similar.4
In addition, many prospective purchasers not familiar with
Italian or musical terms are likely to view the marks as
arbitrary terms without any specific meanings. In that
case, the difference in the last vowel would be even harder
to remember. Finally, the commercial impression of ALLEGRO
and ALLEGRA would likewise be very similar. For many
prospective purchasers, they would simply be foreign-
sounding words that would be hard to distinguish on the
basis of the lack of identity of the last latter. We
conclude that the marks ALLEGRO and ALLEGRA are very
similar in sound, appearance, meaning, and commercial
impression.

4 In addition, we note that the term “allegro” is an English word
defined as a musical term meaning: “brisk or rapid in tempo.”
The Random House Dictionary of the English Language (unabridged)
(2d ed. 1987). We take judicial notice of this definition.
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co.,
213 USPQ 594, 596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983).

Ser No. 75506617
6
Next, we consider the goods of applicant and the
registrants. Applicant’s goods are sauces for pasta and
pizza sold in bulk to restaurants and private and public
institutions. Therefore, applicant in its identification
of goods has limited its channels of trade to bulk sales to
restaurants and private and public institutions. Applicant
argues that “it is not reasonable to assume that the cited
registrants will suddenly expand into the business of
making pizza and pasta since they have been making the same
products for years and it is not reasonable to expect that
they will now change.” Brief at 7. In addition, based on
the affidavits of two of its private investigators
applicant argues that “the cited registrants’ products are
sold in the retail channel of trade for purchase by
individuals in their local supermarkets.” Brief at 9.
Before we address the examining attorney’s evidence
concerning the relatedness of the goods, we will address
some of applicant’s points. Applicant’s arguments are
predicated on its evidence concerning what its private
investigators discovered during their conversations with
registrants’ representatives about their products.
However, in the registrations the goods are identified
simply as pasta, steak marinade, salad dressing, spices,
ketchup, vinegar, breading, and cakes. The binding
Ser No. 75506617
7
precedent of the Federal Circuit makes it clear that we
must consider the goods as they are identified in the
identification of goods. Paula Payne Products v. Johnson
Publishing Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973)
(“Trademark cases involving the issue of likelihood of
confusion must be decided on the basis of the respective
descriptions of goods”). See also Octocom Systems, Inc. v.
Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990) (“The authority is legion that
the question of registrability of an applicant’s mark must
be decided on the basis of the identification of goods set
forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods,
the particular channels of trade or the class of purchasers
to which the sales of goods are directed”). Furthermore,
it is not proper for the board to read limitations into a
registrant’s identification of goods. Squirtco v. Tomy
Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir.
1983)(“There is no specific limitation and nothing in the
inherent nature of Squirtco’s mark or goods that restricts
the usage of SQUIRT for balloons to promotion of soft
drinks. The Board, thus, improperly read limitations into
the registration”).
Ser No. 75506617
8
In this case, the registrants’ identifications of
goods are not restricted in any way. Therefore, we must
assume that the goods pass through all normal channels of
trade for those items. Nothing limits the registrants’
goods to sales in grocery stores to individual consumers
and, therefore, we must assume that registrants’ goods are
distributed through channels of trade that would include in
bulk distribution to restaurants and institutions. To the
extent that the applicant’s and registrants’ goods would be
sold to institutional food buyers, the channels of trade
and purchasers would overlap.
The question then is whether the identified goods of
applicant and registrants are related. We start by noting
that the examining attorney has submitted numerous use-
based registrations that show that pizza and pasta sauces
are registered in a common registration along with pasta,
marinade, or salad dressing. See Registration No.
2,614,774 for, inter alia, pizza sauce and pasta; No.
2,612,188 for “pasta; marinades, sauces…”; No. 2,504,532
for “pasta, gnocchi, vinegar and Italian sauces”; No.
2,536,020 for “pasta and sauce for pasta”; No. 2,751,620
for, inter alia, “sauce for pasta; pasta”; No. 1,705,254
for “pasta and sauce for pasta”; No. 1,477,926 for “pasta
and sauces for pasta”; No. 2,813,177 for, inter alia,
Ser No. 75506617
9
“pasta, tomato sauces, vinegar”; No. 2,755,688 for, inter
alia, “pasta” and “spaghetti sauces”; No. 2,790,465 for,
inter alia, “pasta” and “sauces for pasta”; No. 2,623,992
for “pizza sauce; pasta…”; No. 2,098,403 for, inter alia
“pasta sauce” and “marinades”; No. 2,660,036 for, inter
alia, “marinades” and “pasta sauce”; No. 2,476,360 for
“salad dressings, cooking sauces, marinades, marinara and
other pasta sauces, and yogurt-based sauces”; No. 2,292,895
for “pasta sauce, marinades, tomato-based salad dressings,
and barbecue sauce”; No. 2,442,406 for, inter alia, “pizza
sauce, ketchup, marinades”; No. 2,150,765 for “multi-use
sauce for pasta and rice, dipping sauce, and marinade,
salad dressing”; and No. 2,801,667 for “mustards,
marinades, hot sauce, salad dressings, pasta sauce.”
These third-party registrations suggest that pasta and
pizza sauce are associated with the same source as pasta,
marinades, and salad dressings. In re Infinity
Broadcasting Corp. of Dallas, 60 USPQ2d 1214, 1217-18 (TTAB
2001) (“The registrations show that entities have
registered their marks for both television and radio
broadcasting services. Although these registrations are
not evidence that the marks shown therein are in use or
that the public is familiar with them, they nevertheless
have probative value to the extent that they serve to
Ser No. 75506617
10
suggest that the services listed therein, including
television and radio broadcasting, are of a kind which may
emanate from a single source. See, e.g., In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993);
and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470
at n. 6 (TTAB 1988)").
It “has often been said that goods or services need
not be identical or even competitive in order to support a
finding of likelihood of confusion. Rather, it is enough
that goods or services are related in some manner or that
circumstances surrounding their marketing are such that
they would be likely to be seen by the same persons under
circumstances which could give rise, because of the marks
used thereon, to a mistaken belief that they originate from
or are in some way associated with the same producer or
that there is an association between the producers of each
parties' goods or services.” In re Melville Corp., 18
USPQ2d 1386, 1388 (TTAB 1991). See also Time Warner
Entertainment Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB
2002). Here, the evidence suggests that pasta and pizza
sauce and pasta, salad dressing, and marinade emanate from
the same source. Therefore, we agree with the examining
attorney that the goods in this case are related.
Ser No. 75506617
11
Applicant relies on In re Coors Brewing Co., 343 F.3d
1340, 68 USPQ2d 1059 (Fed. Cir. 2003). However, this is a
not a case where the “evidence of overlap between beer and
restaurant services is so limited that to uphold the
Board’s finding of relatedness would effectively overturn
the requirement of Jacobs [v. International Multifoods
Corp., 668 F.2d 1234, 212 USPQ 641 (CCPA 1982)] that a
finding of relatedness between food and restaurant services
requires ‘something more’ than the fact that restaurants
serve food.” Id. at 1064. Here, the evidence of the
overlap between the food items in this case is not limited
and the Jacobs requirement is not applicable. Quite
simply, pasta sauce and pasta, salad dressing, and
marinades are closely related and people are likely to
assume that these goods, when marketed under similar marks,
are associated with the same source.
Regarding the purchasers and channels of trade, there
would certainly be an overlap. Purchasers of food items
for restaurants and institutions are likely to purchase
pasta sauce as well as pasta, salad dressing, and marinade.
Also, as we indicated above, absent restrictions in the
identification, we must assume that the goods travel in
“the normal and usual channels of trade and methods of
distribution.” CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ
Ser No. 75506617
12
198, 199 (Fed. Cir. 1983). Therefore, we must assume that
registrants’ goods are sold through all channels of trade
and distribution including distributing their goods through
distributors that supply goods to institutions and
restaurants. Thus, these channels of trade would overlap
with applicant’s restricted channels of trade in its
identification of goods.
One other point that applicant makes is that there has
been no actual confusion. The Federal Circuit has
emphasized the traditional rule that the lack of actual
confusion, particularly in an ex parte context, is often
not significant:
With regard to the seventh DuPont factor, we agree
with the Board that Majestic's uncorroborated
statements of no known instances of actual confusion
are of little evidentiary value. See In re Bissett-
Berman Corp., 476 F.2d 640, 642, 177 USPQ 528, 529
(CCPA 1973) (stating that self-serving testimony of
appellant's corporate president's unawareness of
instances of actual confusion was not conclusive that
actual confusion did not exist or that there was no
likelihood of confusion). A showing of actual
confusion would of course be highly probative, if not
conclusive, of a high likelihood of confusion. The
opposite is not true, however. The lack of evidence
of actual confusion carries little weight, J.C. Hall
Co. v. Hallmark Cards, Inc., 52 C.C.P.A. 981, 340 F.2d
960, 964, 144 USPQ 435, 438 (CCPA 1965), especially in
an ex parte context.

Majestic Distilling, 65 USPQ2d at 1205. See also Giant
Food, Inc. v. Nation's Foodservice, Inc., 710 F.2d 1565,
218 USPQ 390, 396 (Fed. Cir. 1983); J & J Snack Foods Corp.
Ser No. 75506617
13
v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889, 1892
(Fed. Cir. 1991).
We point out that in an ex parte proceeding,
registrants are not parties and they do not have an
opportunity to present evidence to counter applicant’s
assertions. Certainly, in this case, we have no evidence
that demonstrates that registrants agree that there has
been no actual confusion. Therefore, while we consider
that applicant is unaware of instances of actual confusion,
we hold that this does not show that there is no likelihood
of confusion.
The one unusual aspect of this case is the fact that
the examining attorney cited registrations owned by two
different parties. We emphasize that the issue here is
whether applicant’s mark is confusingly similar to the
registrants’ marks, not whether the registrants’ marks are
confusingly similar to each other. Indeed, the CCPA has
held that: “nor should the existence on the register of
confusingly similar marks aid an applicant to register
another likely to cause confusion, mistake or to deceive.”
AMF Incorporated v. American Leisure Products, 474 F.2d
1403, 177 USPQ 268, 269 ((CCPA 1973).
When we consider all the evidence of record, we are
convinced that there is a likelihood of confusion.
Ser No. 75506617
14
Applicant’s mark is ALLEGRO and registration Nos. 1,120,655
and 1,671,882 are also for the identical mark ALLEGRO.
These registrations are for steak marinade and salad
dressing and applicant’s goods are for pizza and pasta
sauces. When marks are identical, goods do not have to be
as close to hold that there is confusion. In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993)
(“[E]ven when goods or services are not competitive or
intrinsically related, the use of identical marks can lead
to an assumption that there is a common source”). When the
identical marks are used on these goods, prospective
purchasers would likely think that the goods come from a
common source.
Concerning registration No. 2,476,011, applicant
admitted that the marks ALLEGRO and ALLEGRA are virtually
identical. The goods, pasta and pizza sauce and pasta, are
obviously complimentary items that would be purchased and
used together. We agree that there would also be a likely
of confusion when these marks are used on the identified
goods.
Decision: The examining attorney’s refusals to
register are affirmed.