WholesomeHarvest, LLCv.Foxy Foods, LLC

Trademark Trial and Appeal Board

Feb 14, 2006

No. 91155512 (T.T.A.B. Feb. 14, 2006)

Mailed: 2/14/2006

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Wholesome Harvest, LLC
v.
Foxy Foods, LLC
_____

Opposition No. 91155512
to application Serial No. 78139829
filed on June 28, 2002
_____

Daniel A. Rosenberg of Davis, Brown, Koehn, Shors &
Roberts, P.C. for Wholesome Harvest, LLC.

Thomas A. Dirksen for Foxy Foods, LLC.
______

Before Quinn, Walters and Kuhlke, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

Applicant, Foxy Foods, LLC, seeks registration of the
standard character mark WHOLESOME HARVEST (“WHOLESOME”
disclaimed) for “precut, ready to serve vegetables” in
International Class 29.1
Opposer, Wholesome Harvest, LLC, opposed registration
pursuant to Section 2(d) of the Trademark Act, 15 U.S.C.

1 Application Serial No. 78139829, filed on June 28, 2002, based on an
allegation of a bona fide intention to use the mark in commerce.
THIS DECISION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Opposition No. 91155512
2
§1052(d), on the ground that applicant’s mark, if used in
connection with applicant’s goods, would so resemble
opposer’s previously used mark WHOLESOME HARVEST for meat,
poultry and “other products” as to be likely to cause
confusion, or to cause mistake, or to deceive. Opposer
claims first use of its mark in connection with its goods
at least as early as January 15, 2000 and first use in
commerce at least as early as June 16, 2001. Opposer also
alleges that it owns application serial no. 78157127, filed
on August 23, 2002, for the mark WHOLESOME HARVEST and
design for “frozen meat and poultry.”2
Applicant filed an answer wherein it denied the
salient allegations of the notice of opposition.3

2 Opposer’s use-based application serial no. 78157127, as originally
filed, also listed “vegetables” in the identification of goods.
Opposer subsequently filed a request to divide, requesting that
“vegetables” be listed in a separate intent-to-use application.
“Child” application serial no. 78975424 was created. Application
serial no. 78975424 has been suspended pending a final disposition of
applicant’s application involved herein.
A check of Office records shows that opposer’s “parent” application
serial no. 78157127 matured into Registration No. 2969732 on July 19,
2005. Inasmuch as the registration issued subsequent to trial and
after briefs were filed, the registration, of course, was not
introduced herein. In view thereof, opposer’s registration does not
form part of the record of this case.
3 Applicant’s answer also contained several allegations captioned as
“affirmative defenses,” some of which merely amplify the denial of
likelihood of confusion. Applicant additionally made allegations that
opposer fraudulently claimed use in commerce for “vegetables” and
fraudulently asserted incorrect dates of use for its goods in
application serial no. 78157127. Suffice it to say, although
applicant’s allegations may have a bearing on the validity of opposer’s
application, the allegations are irrelevant insofar as opposer’s common
law rights for organic meats are concerned, that is, the basis upon
which opposer claims priority and likelihood of confusion in this case.
Opposition No. 91155512
3
The record consists of the pleadings; the file of the
involved application; and trial testimony, together with
attached exhibits, taken by opposer.4 The testimony
comprises the deposition of opposer’s founder and
president, Wende Elliott, together with several exhibits,
including the file contents of opposer’s pleaded “parent”
application serial no. 78157127 and “child” application
serial no. 78975424.
Applicant neither took testimony nor offered any other
evidence at trial. Both parties filed briefs on the case,
and an oral hearing was not requested.
Opposer is in the business of providing organically
grown and farmed products, including meat and poultry, and
has done so under the name “Wholesome Harvest, LLC” since
organizing as a limited liability company on May 10, 2002.
Prior to that time, opposer operated as a sole
proprietorship under the same name.
Ms. Elliott testified that opposer sells precooked
convenience meals such as bratwurst and frankfurters,
packaged poultry and raw meat in retail-ready packages to

4 As last set, opposer’s testimony period was to close on October 10,
2004. On October 8, 2004, opposer timely filed a motion to extend the
testimony period until November 10, 2004. Opposer then deposed Wende
Elliott on November 3, 2004. The Board has not previously considered
opposer’s motion to extend. However, inasmuch as the motion is
uncontested, it is granted as conceded. TBMP § 502.04 (2d ed. rev.
2004).
Opposition No. 91155512
4
grocery and food service distributors; that the Wholesome
Harvest logo shown below

was created in 1999 and that organic meat labeled with the
mark was shipped interstate in 2001; and that opposer has
promoted its goods through interviews in media outlets such
as The Christian Science Monitor, USA Today and public
television, through sponsorships on public radio, as well
as through appearances at trade shows. Ms. Elliott, while
being very non-committal, estimated that opposer’s annual
sales of its meat products in 2001, 2002 and 2003 were less
than $5 million. Ms. Elliott admitted that opposer has not
used its mark on vegetables.
The record is devoid of any evidence relating to
applicant’s business activities.
We turn first to the issue of standing. Ms. Elliott
testified about opposer’s use of the mark WHOLESOME HARVEST
and design in connection with organic meat products.5 In

5 Although superfluous to the testimony establishing opposer’s standing,
the record also establishes that opposer owns application serial nos.
78157127 and 78975424. See Hartwell Co. v. Shane, 17 USPQ2d 1569, 1570
(TTAB 1990). Opposer also points out, as evidenced by the examining
Opposition No. 91155512
5
view thereof, there is no issue regarding opposer’s
standing.
We turn next to the question of priority of use – that
is, whether opposer has shown by competent evidence use of
its mark prior to the earliest date upon which applicant
can rely; in this case, that date is June 28, 2002, the
filing date of the involved application. See David
Crystal, Inc. v. Estee Lauder, Inc., 167 USPQ 411 (TTAB
1970), aff’d, 476 F.2d 1373, 177 USPQ 461 (CCPA 1973); and
Levi Strauss & Co. v. R. Josephs Sportswear, Inc., 36
USPQ2d 1328 (TTAB 1994). Opposer bears the burden of
establishing its priority. Section 2(d) of the Trademark
Act bars registration if a conflicting mark has been
"previously used in the United States by another and not
abandoned."
As noted above, opposer claims first use anywhere and
first use in commerce prior to the filing date of
applicant’s intent-to-use application. Ms. Elliott
testified that the WHOLESOME HARVEST and design mark was
first developed “over the winter of 1999,” and that sales
of organic meat products under the mark to a multi-state
grocery chain (Hy-Vee with locations in seven Midwestern

attorney’s Office action, that registration in application serial no.
78975424 will be refused under Section 2(d) in the event applicant’s
application serial no. 78139829 ultimately matures into a registration.
Opposition No. 91155512
6
states) followed in 2001. (Elliott dep., pp. 11 and 20-
21). An invoice dated June 29, 2001 involving a sale of
chicken to a restaurant in Iowa accompanies Ms. Elliott’s
testimony. Ms. Elliott also testified that promotion and
advertising of the mark occurred contemporaneously with the
2001 sales. (Elliott dep., pp. 25-26). Ms. Elliott went
on to say that opposer’s food products have now been sold
throughout the continental United States.
Oral testimony, even of a single witness, if
“sufficiently probative,” can suffice to prove priority.
Powermatics, Inc. v. Global Roofing Products Co., Inc., 341
F.2d 127, 144 USPQ 430 (CCPA 1965). In the present case,
Ms. Elliott’s testimony regarding opposer’s first uses was
not characterized by contradictions, inconsistencies or
indefiniteness. Rather, Ms. Elliott testified with
conviction about the first uses of opposer’s mark,
including during cross-examination. See B.R. Baker Co. v.
Lebow Brothers, 150 F.2d 580, 66 USPQ 232 (CCPA 1945).
Further, Ms. Elliott’s pertinent testimony was accompanied
by documentary evidence. Although not overwhelming by any
stretch, the minimal evidence nonetheless is consistent
with the testimony. See Elder Manufacturing Co. v.
International Shoe Co., 194 F.2d 114, 92 USPQ 330 (CCPA
1952).
Opposition No. 91155512
7
Applicant challenges opposer’s claim of priority,
arguing that opposer’s 2001 use was only intrastate in
nature. Firstly, as indicated above, the record
establishes opposer’s prior use in both intrastate and
interstate commerce. Secondly, even assuming arguendo that
opposer’s 2001 use occurred solely within the state of
Iowa, as applicant contends, such intrastate use is
sufficient to demonstrate priority. Contrary to the gist
of applicant’s challenge, opposer need not prove priority
of use in interstate commerce in order to establish
priority of use in a mark. Proof of prior and continuous
use in intrastate commerce is sufficient to preclude
registration. See National Cable Television Association v.
American Cinema Editors, Inc., 937 F.2d 1572, 19 USPQ2d
1424, 1429 n.4 (Fed. Cir. 1991)[“Section 14 requires only
prior use; ‘in commerce’ is noticeably absent.”); Bourns,
Inc. v. International Resistance Co., 341 F.2d 146, 144
USPQ 424 (CCPA 1965); and Corporate Document Services, Inc.
v. I.C.E.D. Management, Inc., 48 USPQ2d 1477 (TTAB 1998)
[“It is well established that rights in and to a trademark
are created by use of the mark in either intrastate or
interstate commerce.”]. In this case, Ms. Elliott
testified that opposer’s organic meat products were sold to
regional grocery distributors and to at least one
Opposition No. 91155512
8
restaurant in 2001. Such commercial activity, either in
intrastate or interstate commerce, is sufficient to show
priority of use. Applicant has failed to provide testimony
or any other evidence contravening the validity of
opposer’s prior use.
In view of the above, we find applicant’s argument
unpersuasive, and conclude that opposer has presented
competent and uncontroverted evidence regarding its use of
the mark WHOLESOME HARVEST and design prior to the filing
date of applicant’s intent-to-use application.
We turn next to the ultimate question in this case –
that of likelihood of confusion. Our determination under
Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the
likelihood of confusion issue. In re E.I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In
any likelihood of confusion analysis, however, 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
(CCPA 1976). See also, In re Dixie Restaurants Inc., 105
F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
We turn first to the similarity or dissimilarity of
the marks in their entireties as to appearance, sound,
Opposition No. 91155512
9
connotation and commercial impression. Palm Bay Imports,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). The test is
not whether the marks can be distinguished when subjected
to a side-by-side comparison, but rather whether the marks
are sufficiently similar in their entireties that confusion
as to the source of the goods offered under the respective
marks is likely to result. The focus is on the
recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975). Furthermore, although the marks at issue must be
considered in their entireties, it is well settled that one
feature of a mark may be more significant than another, and
it is not improper, for rational reasons, to give more
weight to this dominant feature in determining the
commercial impression created by the mark. See In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir.
1985).
Applicant’s mark is set forth as WHOLESOME HARVEST in
standard character form. Opposer’s mark, as reproduced
earlier, is WHOLESOME HARVEST and design. Applying the
above principles in the present case, we find that
applicant’s mark is sufficiently similar to opposer’s mark
Opposition No. 91155512
10
that, if the marks were used in connection with related
goods, confusion would be likely to occur among consumers
in the marketplace.
Applicant’s argument that the design element is the
dominant portion of opposer’s mark is not well taken. The
word portion of opposer’s mark, “WHOLESOME HARVEST,” which
is identical to the entirety of applicant’s mark, is more
likely to be remembered by consumers and used when calling
for the goods. As such, the literal element of opposer’s
mark is the dominant element of the mark and is therefore
accorded greater weight in determining the likelihood of
confusion. Ceccato v. Manifattura Lane Gaetano Marzotto &
Figli S.p.A., 32 USPQ2d 1192 (TTAB 1994); and In re
Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987).
Furthermore, the literal element of opposer’s mark is
prominently displayed relative to the design.
It is clear that the literal portions of the marks are
identical in sound and virtually identical in appearance,
as they are comprised of the same terms – “wholesome” and
“harvest” set forth in the same order. Inasmuch as
applicant’s mark is shown in standard character form,
applicant is not limited to any particular depiction.
Thus, in deciding likelihood of confusion, we “must
consider all reasonable manners” in which the standard
Opposition No. 91155512
11
character form of the word mark could be depicted. A
registration issued to applicant would give applicant
rights to WHOLESOME HARVEST in all normal manners of
presentation, including typical lower case form, that is,
the manner in which the word portion of opposer’s mark
appears. Jockey International Inc. v. Mallory & Church
Corp., 25 USPQ2d 1233 (TTAB 1992), citing INB National Bank
v. Metrohost Inc., 22 USPQ2d 1585 (TTAB 1992).
The “WHOLESOME HARVEST” portion of each mark, as
applied to food products, also would create the same
connotation in the minds of purchasers, namely that the
goods are harvested foods with wholesome or healthy
attributes.
In sum, the marks, when considered in their
entireties, create substantially similar commercial
impressions, and the few differences between the marks are
insufficient to differentiate them. Clearly, the existence
of a design element in opposer’s mark does not serve to
sufficiently distinguish the marks. The du Pont factor of
the similarity between the marks weighs in opposer’s favor.
Applicant has argued that the marks are not “strong”
as evidenced by the fact that both applicant and registrant
disclaimed the word “wholesome” in their respective
applications. The mere fact that the word has been
Opposition No. 91155512
12
disclaimed does not render the entirety of opposer’s mark
weak. As noted above, marks must be considered in their
entireties when determining whether there is a likelihood
of confusion; further, a disclaimer does not remove the
disclaimed portion from this analysis. In re National Data
Corp., supra. See Giant Food, Inc. v. Nation’s
Foodservice, Inc., 218 USPQ 390 (Fed. Cir. 1983). In this
connection, we further note that the record is devoid of
any third-party uses or registrations of marks that are the
same as or similar to opposer’s mark.
Next we turn to consider the second, third and fourth
du Pont factors, namely the similarities between opposer’s
and applicant’s goods and trade channels, as well as the
classes of purchasers of these goods.
It is well established that the goods of the parties
need not be similar or competitive, or even that they are
offered through the same channels of trade, to support a
finding of likelihood of confusion. It is sufficient that
the respective goods of the parties are related in some
manner and/or the conditions and activities surrounding the
marketing of the goods are such that they would or could be
encountered by the same persons under circumstances that
could, because of the similarity of the marks, give rise to
the mistaken believe that they originate from a common
Opposition No. 91155512
13
source. See Hilson Research, Inc. v. Society for Human
Resource Management, 27 USPQ2d 1423 (TTAB 1993); and In re
International Telephone and Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
Here, applicant’s goods are “precut, ready-to-serve
vegetables.” The evidence of record shows that opposer is
an organic food company using its mark on organic meat and
poultry, including frozen meats. At the outset, we
recognize that there is no per se rule that all food
products are related goods by their nature or by virtue of
their capability of being sold in the same food markets.
See Hi-Country Foods Corp. v. Hi Country Beef Jerky, 4
USPQ2d 1169, 1171-72 (TTAB 1987). In saying this, however,
we also are aware that meats and vegetables have long been
held to be related in the context of a likelihood of
confusion analysis. See, e.g., Independent Grocers
Alliance Distributing Co. v. Potter-McCune Co.,404 F.2d
622, 160 USPQ 46 (CCPA 1968)[fresh meat and canned
vegetables related]; and In re Armour and Co., 180 USPQ 351
(TTAB 1973)[frozen vegetables and frozen meats related].
Further, the Board and its primary reviewing court have
previously found likelihood of confusion in cases, such as
this one, involving substantially similar marks and food
products which, though distinctly different, are
Opposition No. 91155512
14
nevertheless related in that they are sold to the same
classes of purchasers through the same types of stores for
conjoint use. See, e.g., In re Martin’s Famous Pastry
Shoppe, Inc., 221 USPQ 364 (TTAB 1984), aff’d, 748 F.2d
1565, 223 USPQ 1289 (Fed. Cir. 1984)[MARTIN’S for cheese v.
MARTIN’S for wheat bran and honey bread]; In re Colonial
Stores, Inc., 216 USPQ 793 (TTAB 1982), aff’d in
unpublished opinion, Appeal No. 82-612 (Fed. Cir. March 7,
1983)[COUNTRY PRIDE for prepared meat products, namely,
sausage, bacon, smoked meats, ham, and lard v. COUNTRY
PRIDE for bread]; and In re Patrick Cudahy (Wisconsin)
Inc., 206 USPQ 1030 (TTAB 1979)[ANDERSEN’S for canned soups
v. ANDERSEN’S and design for ham].
Applicant’s goods and opposer’s goods are also
complementary and subject to impulse purchase. Ms. Elliott
testified that meat and vegetables are often purchased
together during the course of a single shopping trip, and
consumed together during meals. (Elliott dep., pp. 16-17).
Finally, Ms. Elliot testified that both meat and vegetables
are inexpensive items often purchased by consumers on
impulse. (Id.). Where products are inexpensive and likely
to be purchased on impulse, purchasers are held to a lesser
standard of purchasing care and, thus, are considered more
likely to be confused as to the source of the goods. Recot
Opposition No. 91155512
15
Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899
(Fed. Cir. 2000).
Applicant’s argument that consumers of organic foods
are more likely to exercise greater caution and discretion
when purchasing organic foods like opposer’s is not
persuasive. By their inherent nature, the parties’ goods
are relatively inexpensive and purchasers are therefore
likely to exercise nothing more than ordinary care in
making their purchasing decisions. In any event,
applicant’s argument is not supported by any evidence.
The goods of applicant and opposer also move in the
same channels of trade. Ms. Elliot has testified that
opposer sells its products to grocery distributors, organic
food distributors and food service distributors, as well as
directly to large retail chain stores and on the Internet.
(Elliott dep., pp. 6-7). Opposer’s products have been sold
in grocery stores, independent health food stores, and
health food co-ops.
Applicant’s goods are set forth in its application
without restriction. Where the application describes the
goods broadly and there are no limitations as to their
nature, type, channels of trade or classes of purchasers,
it is presumed that the application encompasses all goods
of the type described, that they move in all normal
Opposition No. 91155512
16
channels of trade, and that they are available to all
potential customers. See In re Melville Corp., 18 USPQ2d
1386, 1388 (TTAB 1991). Thus, applicant’s goods are
presumed to encompass organically grown vegetables. Here,
customary trade channels for pre-cut, ready-to-serve
vegetables would include grocery distributors and retail
grocery stores, as well as organic food stores. These
trade channels are the same channels through which
opposer’s goods move.
Furthermore, according to Ms. Elliott, consumers may
encounter both vegetables and frozen meat and poultry in
physical proximity in the same retail store. As shown by
the evidence of record, opposer’s goods are organic in
nature and such goods, as in the case of opposer’s meats,
may be marketed in physical proximity to vegetables. As
Ms. Elliott testified:
In a grocery store you typically have an organic
section to the grocery store that may be half of
one aisle, and you have meats and vegetables and
canned products all in one aisle. Our [products]
would be in a freezer section, and, depending on
whether there was a frozen vegetable or fresh
vegetable, it would either be next to our product
as a frozen vegetable in the organic freezer
door, or it would be in the fresh section right
next to the organic frozen section.

(Elliott dep., p. 16). Applicant has offered no testimony
to the contrary.
Opposition No. 91155512
17
Here, it is clear from the evidence of record that
applicant’s goods and opposer’s goods are staple food
products, which may be sold through the same trade channels
to the same consumers, and they may be used together in the
preparation of meals. These findings under the second,
third and fourth du Pont factors all weigh heavily in
opposer’s favor in our likelihood of confusion analysis.
Given these findings, we see no need to consider opposer’s
arguments involving its intention to expand its product
line into vegetables, and whether this expansion is
natural.
Two other du Pont factors mentioned by applicant
require quick comment. The absence of actual confusion is
irrelevant to our analysis. There is no evidence that
applicant’s mark has ever been used; thus, the opportunity
for confusion to have occurred in the marketplace may be
nonexistent. Further, applicant’s argument that it adopted
its mark in good faith is unavailing. Good faith adoption
does not necessarily mean that confusion is not likely.
See J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d
1460, 18 USPQ2d 1889 (Fed. Cir. 1991); Hydra Mac, Inc. v.
Mack Trucks, Inc., 507 F.2d 1399, 184 USPQ 351 (CCPA 1975);
and Greyhound Corp. v. Both Worlds Inc., 6 USPQ2d 1635
(TTAB 1988).
Opposition No. 91155512
18
We conclude that the evidence of record as it pertains
to the relevant du Pont factors supports a finding of
likelihood of confusion between the involved marks, and
registration of applicant’s mark is therefore barred under
Section 2(d) of the Trademark Act.
To the extent that any of applicant’s points raise a
doubt about our conclusion on likelihood of confusion,
doubt on the issue of likelihood of confusion is resolved
in favor of the prior user and against the newcomer.
Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768 (TTAB
1992).
Decision: The opposition is sustained and registration
to applicant is refused.