Arandanos Selectos S.A. de C.V.

Trademark Trial and Appeal Board

Oct 24, 2016

No. 86366636 (T.T.A.B. Oct. 24, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: October 24, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Arandanos Selectos S.A. de C.V.
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Serial No. 86359947
Serial No. 86366636
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Arandanos Selectos S.A. de C.V., pro se.
Khanh M. Le, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
_____

Before Bergsman, Wolfson and Heasley,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Arandanos Selectos S.A. de C.V. (“Applicant”) seeks registration on the Principal
Register of the mark BLOOM FARMS (in standard characters) 1 and BLOOM FARMS
and design,2 shown below, both for “raw fruits, namely, strawberries, cranberries,
blackberries, grapes, berries, cherries and raspberries,” in Class 31.

1 Application Serial No. 86366636 was filed on August 14, 2014, under Section 1(b) of the
Trademark Act, based upon Applicant’s allegation of a bona fide intention to use the mark in
commerce.
2 Application Serial No. 86359947 was filed on August 7, 2007, under Section 1(b) of the
Trademark Act, based upon Applicant’s allegation of a bona fide intention to use the mark in
commerce.
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In both applications, Applicant disclaimed the exclusive right to use the word
“Farms.”
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s marks so resembles the two registered marks listed below, owned by
different entities, as to be likely to cause confusion:
1. Registration No. 3690147 for the mark BLOOM FRESH and design, shown
below, for “fresh fruits and vegetables,” in Class 31.3

Registrant disclaimed the exclusive right to use the word “Fresh.”
2. Registration No. 4641014 for the mark BLOOM and design, shown below, for,
inter alia, “apple juice beverages,” “fruit beverages,” “fruit drinks and fruit juices,”
and “vegetable juices,” in class 32.4

3 Registered on September 29, 2009; Sections 8 and 15 affidavits accepted and acknowledged.
4 Registered on November 18, 2014. A green leaf extends from the letter “m” in Registrant’s
mark.
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When the refusals were made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the requests for
reconsideration, the appeals were resumed.
I. Preliminary Issues
A. The appeals are consolidated.
We consolidate the appeals because they involve common questions of fact and
law. See In re Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012); TBMP § 1214 (June
2016). The references to the record are to Application Serial No. 86359947 unless
otherwise indicated.
B. Evidentiary issue
In its January 30, 2015 Response to an Office Action, Applicant stated that “there
are 133 BLOOM marks that co-exist in international class 031, … but more
specifically there are three trademarks that coexist with cited registered mark
BLOOM FRESH as bar for registration, that include fruits and/or vegetables in their
goods.” Applicant did not submit a list or copies of the proffered 133 BLOOM marks.
Applicant provided a list of registrations with fresh and/or raw fruits and vegetables
and fruit and/or vegetable juices in their description of goods and inserted excerpts
from the registrations.
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To make registrations of record, copies of the registrations or the complete
electronic version (i.e., complete printouts taken from the electronic database of the
USPTO) must be submitted. In re Ruffin Gaming LLC, 66 USPQ2d 1924, 1925 n.3
(TTAB 2002); In re Volvo Cars of N. Am. Inc., 46 USPQ2d 1455, 1456 n.2 (TTAB
1998); In re Broadway Chicken Inc., 38 USPQ2d 1559, 1561 n.6 (TTAB 1996); In re
Smith & Mehaffey, 31 USPQ2d 1531, 1532 n.3 (TTAB 1994).
If the applicant’s response includes improper evidence of
third-party registrations, the examining attorney must
object to the evidence in the first Office action following the
response. Otherwise the Board may consider the objection
to be waived. See In re Houston, 101 USPQ2d 1534, 1536
(TTAB 2012) (finding that the examining attorney’s failure
to advise applicant of the insufficiency of the list of
registrations when it was proffered during examination
constituted a waiver of any objection to consideration of
that list); In re 1st USA Realty Prof’ls, 84 USPQ2d at 1583
(allowing evidence of a list of third-party registrations
because the examining attorney did not advise applicant of
the insufficiency of the list while there was still time to
correct the mistake); In re Broyhill Furniture Indus., Inc.,
60 USPQ2d 1511, 1513 n.3 (TTAB 2001) (finding
examining attorney’s objection to a listing of third-party
registrations waived because it was not raised in the Office
action immediately following applicant’s response in which
applicant’s reliance on the listing as evidence was
indicated). If the applicant files an appeal, the examining
attorney should continue the objection to the evidence in
his or her appeal brief.
TMEP § 710.03 (April 2016). The Trademark Examining Attorney did not object to
Applicant’s improper submission of third-party registrations. Moreover, the
Trademark Examining Attorney treated the third-party registrations as if they were
of record.
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In view thereof, we consider the specific registrations presented in Applicant’s list
and the specific registrations for which Applicant presented excerpts to be of record
and we will give them whatever probative value they have.5 Applicant’s proffer that
“there are 133 BLOOM marks that co-exist in international class 031” has no
probative value because it is the manner in which the registrants have identified
their goods that is controlling, not the classification, and Applicant did not provide
the goods and/or services. The classification system was established for the
convenience of the Office rather than to indicate that goods in the same class are
necessarily related or that classification in different classes indicates that they are
not related. See National Football League v. Jasper Alliance Corp., 16 USPQ2d 1212,
1216 n.5 (TTAB 1990) (citing In re Leon Shaffer Golnick Advertising, Inc., 185 USPQ
242 n.2 (TTAB 1974)).

5 Applicant submitted an excerpt from one pending application. However, third-party
applications have no probative value other than as evidence that the applications were filed.
In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1270 n.8 (TTAB 2009); In re Fiesta Palms
LLC, 85 USPQ2d 1360, 1366 n.7 (TTAB 2007); In re 1st USA Realty Prof’ls Inc., 84 USPQ2d
1581, 1583 (TTAB 2007); In re Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1049 n.4 (TTAB
2002).
Applicant also submitted excerpts from two cancelled registrations (Registration No. 3727042
for the mark BLOOM ENERGY and design was cancelled July 29, 2016 and Registration No.
3403221 for the mark COME BACK AND SEE WHAT BLOOMS was cancelled on October
31, 2014). However, an expired or cancelled registration does not affect the strength of an
existing registration. Lebanon Seaboard Corp. v. R&R Turf Supply Inc., 101 USPQ2d 1826,
1832 n.13 (TTABV 2012) (citing Action Temporary Services Inc. v. Labor Force Inc., 870 F.2d
1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989) (“a cancelled registration does not provide
constructive notice of anything.”).
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II. 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) (“DuPont”) (cited in B&B Hardware, Inc. v. Hargis Ind.,
Inc., __U.S. __, 135 S.Ct.1293, 113 USPQ2d 2045, 2049 (2015)). See also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each DuPont factor that is relevant and for which there is evidence of
record. See M2 Software, Inc. v. M2 Communications, Inc., 450 F.3d 1378, 78 USPQ2d
1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. and H.J. Heinz Company v. GFA
Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each
factor for which we have evidence, we focus our analysis on those factors we find to
be relevant.”). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods. See In re
Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); 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.”). See also
In re i.am.symbolic, LLC, 116 USPQ2d 1406, 1409 (TTAB 2015).
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A. Application Serial No. 86366636 for the mark BLOOM FARMS in
standard character form vs. Registration No. 3690147 for the
mark BLOOM FRESH and design.
1. Similarity or dissimilarity and nature of the goods and
established, likely-to-continue channels of trade.
Applicant is seeking to register its BLOOM FARMS mark for “raw fruits, namely,
strawberries, cranberries, blackberries, grapes, berries, cherries and raspberries”
and Registrant’s BLOOM FRESH mark is registered for “fresh fruits and vegetables.”
The word “raw” is defined, inter alia, as “being in a natural condition; not
processed or refined” and “fresh.”6
The word “fresh” is defined, inter alia, as “not preserved by being frozen, canned,
etc.” and “raw.”7
Thus, raw and fresh fruits and vegetables are synonyms, and the goods are in part
identical. Under this DuPont factor, the Trademark Examining Attorney need not
prove, and we need not find, similarity as to each and every product listed in the
description of goods. It is sufficient for a refusal based on likelihood of confusion that
relatedness is established for any item encompassed by the identification of goods in
a particular class in the application. Tuxedo Monopoly, Inc. v. General Mills Fun
Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, 116

6 The American Heritage Dictionary of the English Language (ahdictionary.com).
The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014), aff’d 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v. Metronome
Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010).
7 Merriam-Webster Dictionary (merriam-webster.com).
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USPQ2d at 1409; Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB
2014); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584,
1588 n.1 (TTAB 2011), judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB
2014); Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1397 (TTAB 2007).
Applicant argues that “Registrant’s webpage … displays the products sold under
it’s [sic] trademark, and no ‘berries’ are sold under BLOOM FRESH.”8 However, we
must consider the goods as they are described in the application and registration.
Octocom Sys., Inc. v. Houston Computers Servs. 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”). See also 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”). We may not look to extrinsic evidence about
Registrant’s actual goods. Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d
1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); In re Dixie Rests., Inc., 105 F.3d 1405,
41 USPQ2d 1531, 1534-1535 (Fed. Cir. 1997); Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000).

8 Applicant’s Brief, p. 10 (7 TTABVUE 11).
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Because the goods described in the application and the cited registration are in
part identical, we must presume that the channels of trade and classes of purchasers
are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.
2012) (legally identical goods are presumed to travel in same channels of trade to
same class of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ
721, 723 (CCPA 1968) (where there are legally identical goods, the channels of trade
and classes of purchasers are considered to be the same); United Global Media Grp.,
Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); American Lebanese Syrian
Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022, 1028
(TTAB 2011).
2. The strength of the mark in the cited registration.
Applicant argues that BLOOM FRESH is a weak mark entitled to only a narrow
scope of protection or exclusivity of use. To support its contention, Applicant
submitted excerpts from three live third-party registrations set forth in the table
below:9

9 November 25, 2014 Office Action. Applicant also asserts that its application for the mark
BLOOM VALLEY for “fresh fruit; unprocessed fruits, namely, strawberries, cranberries,
blackberries, grapes, berries, cherries and raspberries; unprocessed fruit” (Serial No.
86553874) “has now been allowed registration.” Applicant’s Brief, pp. 2 and 9 (7 TTABVUE
3 and 10). Setting aside the fact that the BLOOM VALLEY application was not made of
record and, therefore, cannot be considered, it is well settled that prior decisions and actions
by other examining attorneys in registering other marks have little evidentiary value and
are not binding upon the Trademark Trial and Appeal Board. See In re Midwest Gaming &
Entm’t LLC, 106 USPQ2d 1163, 1165 n.3 (TTAB 2013) (citing In re Nett Designs, Inc., 236
F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (the Board must assess each application
on the record of public perception in that application and there is little persuasive value in
other registrations)). Each case must be decided on its own facts. See AMF Inc. v. Am. Leisure
Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); In re Binion, 93 USPQ2d 1531,
1536 (TTAB 2009).
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Mark Reg. No. Goods

Shrooms ‘n Bloom 4658869 Fresh mushrooms

BOUNTIFUL BLOOMS 3932211 Seeds for planting, namely, flower seeds,
herb seeds, fruit seeds and vegetable seeds;
live plants, namely, fruit plants, vegetable
plants, flowering plants and herbs; plant
and flower bulbs

4641014 apple juice beverages, fruit beverages, fruit
drinks and fruit juices, and vegetable
juices

Evidence of extensive registration and use of a term by others can be “powerful”
evidence of weakness. See Jack Wolfskin Ausrustung Fur Draussen GmbH & Co.
KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136
(Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115
USPQ2d 1671, 1674 (Fed. Cir. 2015). But Applicant offers only excerpts from three
live, third-party registrations. By comparison, in Juice Generation, there were at
least twenty-six relevant third party uses and registrations of record, see 115
USPQ2d at 1672 n.1, and in Jack Wolfskin, there were at least fourteen, 116 USPQ2d
at 1136 n.2.
Moreover, Applicant proffered no evidence regarding the extent of such third-
party use. The probative value of third-party trademarks, as they affect the
commercial strength or weakness of a cited registration, depends entirely upon their
usage. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005), quoting Scarves by Vera, Inc. v.
Todo Imports, Ltd., 544 F.2d 1167, 192 USPQ 289, 294 (2d Cir. 1976) (“The
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significance of third-party trademarks depends wholly upon their usage. Defendant
introduced no evidence that these trademarks were actually used by third parties,
that they were well promoted or that they were recognized by consumers.”). As the
Court of Appeals for the Federal Circuit has previously recognized, where the “record
includes no evidence about the extent of [third-party] uses … [t]he probative value of
this evidence is thus minimal.” Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333,
57 USPQ2d 1557, 1561 (Fed. Cir. 2001) (emphasis added). “[T]he purpose of a
defendant introducing third party uses is to show that customers have become so
conditioned by a plethora of such similar marks that customers ‘have been educated
to distinguish between different [such] marks on the bases of minute distinctions.’”
Veuve Clicquot Ponsardin, 73 USPQ2d at 1694. In this case, the evidence does not
rise to the level of demonstrating that the third-party use was so widespread as to
“condition” the consuming public.
3. The similarity or dissimilarity of the marks.
We now turn to the DuPont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. E. I. du Pont De Nemours, 177 USPQ at 567. In a
particular case, “two marks may be found to be confusingly similar if there are
sufficient similarities in terms of sound or visual appearance or connotation.”
Kabushiki Kaisha Hattori Seiko v. Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB
1991), aff’d mem., 979 F.2d 216 (Fed. Cir. 1992) (citation omitted). See also Eveready
Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009) (quoting Krim-
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Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is
sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”)).
In comparing the marks, we are mindful that where, as here, the goods are in part
identical, the degree of similarity necessary to find likelihood of confusion need not
be as great as where there is a recognizable disparity between the goods. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enterprises Inc. v. Rind, 85 USPQ2d
1104, 1108 (TTAB 2007); Schering-Plough HealthCare Products Inc. v. Ing-Jing
Huang, 84 USPQ2d 1323, 1325 (TTAB 2007).
“The proper test is not a side-by-side comparison of the marks, but instead
‘whether the marks are sufficiently similar in terms of their commercial impression’
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc., 101 USPQ2d at 1721. See also San Fernando
Electric Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3
(CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). The proper focus is on the
recollection of the average customer, who retains a general rather than specific
impression of the marks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d
1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438
(TTAB 2012); Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335,
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344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975). Since the goods at issue are fresh and raw fruits and vegetables, the average
customer is an ordinary consumer.
Applicant’s mark is BLOOM FARMS, in standard character form, and the
registered mark is BLOOM FRESH and design shown below:

In the case of marks consisting of words and a design, the words are normally
accorded greater weight because the words are likely to make an impression upon
purchasers, would be remembered by them, and would be used by them to request
the goods. See In re Viterra Inc., 101 USPQ2d at 1908 (citing CBS Inc. v. Morrow, 708
F. 2d 1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir 1983)); Sweats Fashions Inc. v.
Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987); Giant
Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed. Cir. 1983);
Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1431 (TTAB
2013) (citing In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999)).
There is nothing improper in stating that, for rational reasons, more or less weight
has been given to a particular feature of a mark, provided the ultimate conclusion
rests on a consideration of the marks in their entireties. In re National Data Corp.,
753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
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With respect to the mark in the cited registration – BLOOM FRESH and design
– the word “Fresh” is descriptive of “fresh fruits and vegetables” describing the nature
and quality of the fruits and vegetables and Registrant has disclaimed the exclusive
right to use the word “Fresh.” Disclaimed, descriptive matter may have less
significance in likelihood of confusion determinations. See Cunningham v. Laser Golf
Corp., 55 USPQ2d at 1846(“Regarding descriptive terms, this court has noted that
the ‘descriptive component of a mark may be given little weight in reaching a
conclusion on the likelihood of confusion.’”) (quoting In re National Data Corp., 753
F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Rests. Inc., 105 F.3d 1405,
41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d
1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the
mark’s commercial impression”).
The Trademark Examining Attorney also contends that the word “Farms” in
Applicant’s mark BLOOM FARMS is descriptive because “it describes the place
where fruits are grown,” and it has been disclaimed.10 Applicant did not challenge the
Trademark Examining Attorney’s contention that “Farms” is merely descriptive; it
noted that the Trademark Examining Attorney “assigns it diminished value.”11
Because an applicant may voluntarily disclaim matter and because there is no
evidence in the record as to why Applicant disclaimed “Farm” when it filed its
application, we cannot assume that “Farms” is descriptive. See Section 6(a) of the

10 Trademark Examining Attorney’s Brief (unnumbered pages 5-6) (9 TTABVUE 6-7).
11 Applicant’s Brief, p. 4 (7 TTABVUE 5).
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Trademark Act, 15 U.S.C. § 1056(a). Disclaimed matter cannot be ignored in the
likelihood of confusion analysis. See Giant Food, 218 USPQ at 385 (“disclaimers are
not helpful in preventing likelihood of confusion in the mind of the consumer, because
he is unaware of their existence.”). Nevertheless, we note that other third-party
registrants disclaimed the exclusive right to use the word “Farm” and that five of the
third-party websites the Trademark Examining Attorney submitted to show that raw
fruits and vegetables are related to fruit and vegetable juices include the word
“Farm.” Even if the word “Farm” is not merely descriptive, it is highly suggestive. See
the discussion infra.
The significance of the word “Bloom” as the dominant element of both marks is
reinforced by its location as the first part of the mark. See Veuve Clicquot Ponsardin,
73 USPQ2d at 1692 (“Veuve” is the most prominent part of the mark VEUVE
CLICQUOT because “veuve” is the first word in the mark and the first word to appear
on the label); Century 21 Real Estate, 23 USPQ2d at 1700 (upon encountering the
marks, consumers will first notice the identical lead word); Presto Products Inc. v.
Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part
of a mark which is most likely to be impressed upon the mind of a purchaser and
remembered”).
Because Applicant’s mark is in standard character form, it is not limited to any
particular depiction. The rights associated with a mark in standard characters reside
in the wording, and not in any particular display. Thus, Applicant is entitled to all
depictions of its standard character mark regardless of the font style, size, or color.
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Applicant’s mark could at any time in the future be displayed in a manner similar to
Registrant’s mark. In re Viterra Inc., 101 USPQ2d at 1909-11; Citigroup Inc. v.
Capital City Bank Group, Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir.
2011); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983)
(rejecting argument that a mark in standard character format (typed) is distinct from
a mark in a logo format; “[b]y presenting its mark in a typed drawing, a difference
cannot legally be asserted by that party” (emphasis in original)); In re RSI Systems,
LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy Products Corp., 8
USPQ2d 2012, 2015 (TTAB 1988).
While the words “Farms” and “Fresh” are different, we find that they do not carry
enough of an impact for us to alter our finding that the word “Bloom” is the dominant
portion of both marks when viewed in their entireties. Because of the strength of the
word “Bloom” and the identity of the goods and trade channels, consumers
encountering BLOOM FARMS and BLOOM FRESH and design may mistakenly
believe that BLOOM FRESH is the fresh fruit division or line of BLOOM FARMS
fruits and vegetables. Therefore, we find that the marks are more similar than
dissimilar in terms of their appearance, sound, connotation and commercial
impression.
4. Balancing the factors.
Because the marks are similar, the goods are in part identical and there is a
presumption that the goods move in the same channels of trade for sale to the same
ordinary consumers, we find that Applicant’s mark BLOOM FARMS for “raw fruits,
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namely, strawberries, cranberries, blackberries, grapes, berries, cherries and
raspberries” is likely to cause confusion with the registered mark for “fresh
fruits and vegetables.”
B. Application Serial No. 86359947 for the mark BLOOM FARMS and
design vs. Registration No. 3690147 for the mark BLOOM FRESH and design.

The only difference between the records in the appeals for BLOOM FARMS in
standard character form and BLOOM FARMS and design applications is the marks.
1. The similarity or dissimilarity of the marks.
Applicant’s mark BLOOM FARMS and design mark and the mark in the cited
registration BLOOM FRESH and design are shown below:

Keeping in mind that a side-by-side comparison of the marks is not the proper test
and the proper focus is on the recollection of the average customer, who retains a
general rather than specific impression of the marks, we find that the marks are
similar in appearance because the word “Bloom” is displayed over the words “Farms”
and “Fresh” in both marks and both marks feature a plant to the side of the words: a
stylized piece of fruit in the BLOOM FARMS mark and a leaf design in the BLOOM
FRESH mark.
As previously discussed, when marks consist of words and a design, the words are
normally accorded greater weight because the words are likely to make an impression
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upon purchasers, would be remembered by them, and would be used by them to
request the goods. Thus, the names BLOOM FARMS and BLOOM FRESH are
dominant parts of both marks. Moreover, the word “Bloom” is most significant part
of the marks BLOOM FARMS and BLOOM FRESH because the word “Bloom” is
displayed above the word “Farms” and “Fresh” so as to be pronounced “Bloom Farms”
and “Bloom Fresh.”
Thus, for the same reasons that we found BLOOM FARMS in standard character
form similar to Registrant’s BLOOM FRESH and design mark, we find that BLOOM
FARMS and design mark and the BLOOM FRESH and design mark to be more
similar than dissimilar in terms of appearance, sound, connotation and commercial
impression.
2. Balancing the factors.
Because the marks are similar, the goods are in part identical and there is a
presumption that the goods move in the same channels of trade for sale to the same
ordinary consumers, we find that Applicant’s mark for “raw fruits,
namely, strawberries, cranberries, blackberries, grapes, berries, cherries and
raspberries” is likely to cause confusion with the registered mark for
“fresh fruits and vegetables.”
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C. Application Serial No. 86366636 for the mark BLOOM FARMS in
standard character form vs. Registration No. 4641014 for the mark
BLOOM and design.
1. Similarity or dissimilarity and nature of the goods and
established, likely-to-continue channels of trade.
Applicant is seeking to register its mark to identify and distinguish “raw fruits,
namely, strawberries, cranberries, blackberries, grapes, berries, cherries and
raspberries.” The most relevant goods in the description of goods for the mark in the
cited registration are “apple juice beverages,” “fruit beverages,” “fruit drinks and fruit
juices,” and “vegetable juices.”
The Trademark Examining Attorney has submitted five use-based, third-party
registrations for products listed in both the application and registration at issue.12
Third-party registrations that individually cover a number of different services that
are based on use in commerce may have some probative value to the extent that they
serve to suggest that the listed services are of a type which may emanate from the
same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786; In re
Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The
registrations are listed below:13
Mark Reg. No. Goods

ORGANIC VALLEY
FAMILY FARMS
3103376 Fresh vegetables; fresh fruits; fruit juices

SUNDIA 3131175 Fresh fruits; fruit juice

12 November 25, 2014 Office Action.
13 We have not included the entire description of goods for each registration. We have listed
only the goods relevant to this decision as arguably encompassing the goods at issue.
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Mark Reg. No. Goods

WINDER FARMS 4341045 Fresh fruit and vegetables; fruit drinks
and fruit juices

RAW FOODIE 4607402 Fresh fruit and vegetables; raw fruits and
vegetables; fruit juice; vegetable juices

LYCOBERRY 4611482 Fresh fruit; fruit beverages

In addition, the Trademark Examining Attorney submitted excerpts from the
third-party websites listed below advertising the sale of fresh fruit and vegetables
and fruit and vegetable juices and drinks under the same mark:14
1. Cherry Lawn Farm Market (cherrylawnfarm.com);
2. Gizdich Ranch (gizdich-ranch.com);
3. Del Monte (freshdelmonte.com);
4. Dole (dole.com);
5. Sunkist (sunkist.com);
6. Baugher’s Fruit Market (baughers.com);
7. Kauffman’s Fruit Farm & Market (Kauffmansfruitfarm.com);
8. Hidden Valley Fruit Farm Country Store (hiddenvalleyfruitfarm.com);
9. Blackman Homestead Farm (blackmanhomesteadfarm.com); and
10. Phillips Farms (phillipsfarms.com).
Evidence of sales of both Applicant’s goods and the goods in the cited registration
on the websites for Cherry Lawn Farm Market, Gizdich Ranch, Baugher’s Fruit
Market, Kauffman’s Fruit Farm & Market, Hidden Valley Fruit Farm Country Store

14 November 25, 2014, October 9, 2015, and April 27, 2016 Office Actions.
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Blackman Homestead Farm, and Phillips Farms establishes that these goods are sold
in the same channels of trade to the same classes of customers.
Based on the foregoing, we find that the goods are related and move in the same
channels of trade.
2. The strength of the mark in the cited registration.
In analyzing the strength of the mark in the cited registration, we use the same
table of marks in the previous section but replace the registration at issue with the
mark BLOOM FRESH and design discussed above. This still leaves us with only
three third-party registrations and no evidence regarding the extent of the third-
party use. As noted above, the evidence does not rise to the level of demonstrating
that the third-party use was so widespread as to “condition” the consuming public.
3. The similarity or dissimilarity of the marks.
Applicant’s mark is BLOOM FARMS in standard characters and the registered
mark is BLOOM and design, shown below:

As noted above, the dominant portion is the registered mark is the word “Bloom”
because that is the part of the marks that consumers will remember and use to call
for Registrant’s fruit and vegetable juices and the word “Bloom” is the dominant
portion of Applicant’s mark. The design elements and stylization of the letters in
Registrant’s mark fails to distinguish the mark from Applicant’s mark. Also, because
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the mark BLOOM FARMS is in standard characters, Applicant could display the
mark BLOOM FARMS in a script format similar to the registered mark.
Because the word “Bloom” is inherently distinctive, the suggestive nature of the
word “Farms,” and the relatedness of the goods, consumers may mistakenly believe
that the registered BLOOM mark is a shortened version of BLOOM FARMS. “[U]sers
of language have a universal habit of shortening full names – from haste or laziness
or just economy of words. Examples are: automobile to auto; telephone to phone;
necktie to tie; gasoline service station to gas station.” In re Abcor Development Corp.,
588 F.2d 511, 200 USPQ 215, 219 (CCPA 1978) (J. Rich, concurring).
[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 Bloomies for
Bloomingdales.
Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333 (TTAB 1992).
See also Giant Food, 218 USPQ at 395 (“Although the record does not indicate that
applicant's business is commonly referred to as “Giant”, it does indicate that people
have called it by that name, omitting the word “Hamburgers”. Thus, in a conversation
between two consumers in opposer's area about a place of business called “Giant”,
there likely would be confusion about which “Giant” they were talking about.”); Big
M Inc. v. The United States Shoe Co., 228 USPQ 614, 616 (TTAB 1985) (“we cannot
ignore the propensity of consumers to often shorten trademarks and, in the present
case, this would be accomplished by dropping the “T.H.” in referring to registrant's
stores [T.H. MANDY].”).
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We find that the marks are similar in appearance, sound, connotation and
commercial impression.
4. Balancing the factors.
Because the marks are similar, the goods are related and the goods move in the
same channels of trade for sale to the same ordinary consumers, we find that
Applicant’s mark BLOOM FARMS, in standard characters, for “raw fruits, namely,
strawberries, cranberries, blackberries, grapes, berries, cherries and raspberries” is
likely to cause confusion with the registered mark for “apple juice
beverages,” “fruit beverages,” “fruit drinks and fruit juices,” and “vegetable juices.”
D. Application Serial No. 86359947 for the mark BLOOM FARMS
and design vs. Registration No. 4641014 for the mark BLOOM
and design.
The only difference between the records in the appeals for the BLOOM FARMS in
standard character form and BLOOM FARMS and design applications is the marks.
1. The similarity or dissimilarity of the marks.
Applicant’s mark is BLOOM FARMS and design, shown below:

The registered mark is BLOOM and design, shown below:
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Because the dominant portion of the marks are the word “Bloom,” and because
“Bloom” is an arbitrary term when used in connection with for “apple juice
beverages,” “fruit beverages,” “fruit drinks and fruit juices,” and “vegetable juices,”
we find that the marks are more similar than dissimilar.
2. Balancing the factors.
Because the marks are similar, the goods are related, the goods move in the same
channels of trade to the same ordinary consumers, we find that Applicant’s mark
for “raw fruits, namely, strawberries, cranberries, blackberries, grapes,
berries, cherries and raspberries” is likely to cause confusion with the registered
mark for “apple juice beverages,” “fruit beverages,” “fruit drinks and fruit
juices,” and “vegetable juices.”
Decision: The refusals to register Applicant’s marks are affirmed.