Cool Tropics

Trademark Trial and Appeal Board

Jun 3, 2011

No. 76691918 (T.T.A.B. Jun. 3, 2011)

Mailed: June 3, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Cool Tropics
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Serial No. 76691918
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Myron Amer of Myron Amer, P.C., for Cool Tropics.

Janice Kim, Trademark Examining Attorney, Law Office 103 (Michael
Hamilton, Managing Attorney).
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Before Holtzman, Wellington and Ritchie, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

Cool Tropics (applicant) has appealed from the final refusal
of the trademark examining attorney to register the standard
character mark RIPS for goods ultimately identified as "fruit
juice, and not including alcoholic beverages" in Class 32.1

1 Serial No. 76691918, filed August 8, 2008. We note that applicant
did not reference a statutory basis for filing the application and that
the USPTO's TARR database indicates that "no filing basis has been
claimed." However, we believe it is sufficiently clear that applicant
is seeking registration based on use of the mark in commerce under
Section 1(a) of the Trademark Act. Applicant avers in the application
that it "has adopted, and is using" the mark and the application was
accompanied by a specimen of use. The problem is that applicant did
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 76691918
2
The examining attorney has refused registration under
Section 2(d) of the Trademark Act on the basis of Registration
No. 3764328 for mark RIPS in standard characters for "liquor and
liqueur beverages, namely, frozen ready-to drink [sic] alcoholic
beverages of fruit" in Class 33.2
Both applicant and the examining attorney have filed briefs,
and applicant filed a reply brief.
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 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 or dissimilarities between
the marks and the similarities or dissimilarities between the
goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
Applicant's mark RIPS is identical to the mark RIPS in the
cited registration.3 The fact that the respective marks are

not provide dates of use for the mark as required by Trademark Rule
2.32 and 2.34(a)(1), and the examining attorney never addressed this
deficiency. Accordingly, if applicant should ultimately prevail in an
appeal from this appeal, the application will be remanded to
the examining attorney to make the requirement for verified dates of
use and also to ensure that the USPTO records are corrected to reflect
the filing basis.
2 Issued March 23, 2010.
3 Applicant, for the first time with its reply brief, submitted a copy
of the packaging specimen from the registration file in an attempt to
show that the marks differ in connotation. This evidence is untimely
Serial No. 76691918
3
identical "weighs heavily against applicant." In re Martin's
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290
(Fed. Cir. 1984).
We turn then to a consideration of the goods, and a
determination of whether the respective goods are sufficiently
related and/or the circumstances surrounding the marketing of the
goods are such that purchasers encountering them would, in view
of the similarity of the marks, mistakenly believe that the goods
emanate from the same source. See Monsanto Co. v. Enviro-Chem
Corp., 199 USPQ 590 (TTAB 1978); In re International Telephone &
Telegraph Corp., 197 USPQ 910 (TTAB 1978).
In making this determination, we keep in mind that where the
marks are identical, as they are here, it is only necessary that
there be a viable relationship between the goods in order to
support a holding of likelihood of confusion. See In re
Concordia International Forwarding Corp., 222 USPQ 355 (TTAB
1983).
In this case, however, there is more than a viable
relationship between the respective goods. Applicant's "fruit
juice" and registrant's "frozen ready-to-drink alcoholic

and will not be considered. See Trademark Rule 2.142(d). Nor will we
consider applicant's unsupported arguments which are based on this
untimely evidence. In any event, the connotation of RIPS is the same
in both marks.
Serial No. 76691918
4
beverages of fruit" are, on their face, inherently related,
complementary goods.
The identifications alone are sufficient to demonstrate the
relatedness of these goods. Moreover, the complementary nature
of these products is also shown by the Wikipedia entry for "Drink
Mixer" submitted by the examining attorney, which states that
fruit juices are common additions to alcoholic beverages. The
examining attorney also submitted a number of use-based, third-
party registrations each covering non-alcoholic fruit beverages
such as juice, on the one hand, and alcoholic beverages,
including those that contain mixers such as fruit juice or fruit
drinks, on the other. A few such examples are shown below.
Reg. No. 3066213 (AMERICAN BULL and design) lists
"fruit-flavored drinks" as well as "alcoholic
beverages, namely, ... fruit flavored,...drinks
containing vodka";

Reg. No. 3451773 (THE CHALMATION) lists "non-
alcoholic beverages, namely, fruit cocktails" as well
as well as "prepared alcoholic cocktails";

Reg. No. 3457878 (CLAIR DE FRANCE FRENCH DELIGHTS and
design) lists "fruit juices" as well as "alcoholic
beverages of fruit, ... liqueurs...";

Reg. No. 3737972 (VIP ALL ACCESS) lists "fruit
juices" as well as "alcoholic beverages of fruit" and
"alcoholic fruit cocktail drinks";

Reg. No. 3057119 (design mark) lists "fruit juices"
as well as "prepared alcoholic cocktails containing
fruit";

Serial No. 76691918
5
Reg. No. 3115035 (PRIMER) lists "fruit juices and
fruit drinks" as well as "alcoholic punch, prepared
alcoholic cocktail, vodka..."; and

Reg. No. 3505261 (MOJITO LIBRE) lists "flavored non-
alcoholic beverages containing fruit juice" as well
as "prepared alcoholic cocktails."

Although third-party registrations are not evidence that the
marks shown therein are in commercial use or that the public is
familiar with them, they nevertheless have some probative value
to the extent that they serve to suggest that the goods listed
therein may emanate from a single source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993); and In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467 (TTAB 1988).
Applicant's exclusion of alcoholic beverages in its
identification of goods does nothing to avoid a likelihood of
confusion. The question is not whether applicant in fact
provides alcoholic beverages under the mark RIPS. The question
is whether consumers who encounter both products bearing the
identical mark will believe that the products emanate from a
single source. In view of the complementary nature of the
products, we find that they will.
Applicant argues that alcoholic beverages and non-alcoholic
beverages are marketed to different purchasers in different
channels of trade, noting the age restrictions as well as other
legal limitations placed on the sale of alcoholic beverages to
the public.
Serial No. 76691918
6
These arguments are not persuasive. To begin with, absent
any restriction in the application or registration, we must
presume that the goods move through all the normal trade channels
and that they are sold to all the usual purchasers. See Octocom
Systems Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783 (Fed. Cir. 1990). The adult purchasers who would be
the customers for registrant's alcoholic beverages would also be
prospective purchasers of applicant's fruit juice.
There are no restrictions to the channels of trade, and the
products may well be sold in at least some of the same stores.
Moreover, the fact that the goods may be sold in different
channels of trade is not significant where the goods "may end up
in the same purchaser's hands under conditions where that
purchaser might logically suppose they had a common origin."
Luzier Inc. v. Marlyn Chemical Co., Inc., 442 F.2d 973, 169 USPQ
797, 799 (CCPA 1971). Because of the complementary nature of
fruit juice and frozen alcoholic beverages of fruit, such
conditions exist. Furthermore, the two products may not even be
purchased at the same time. Consumers who had previously
purchased registrant’s RIPS frozen alcoholic beverages with
fruit, upon encountering applicant's fruit juice under the
identical mark RIPS, regardless of where they purchased it, would
naturally assume because of the products' complementary nature,
that they come from or are associated with the same source.
Serial No. 76691918
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We also point out that fruit juice and alcoholic beverages
are ordinary consumer goods that are, or can be, relatively
inexpensive and purchased casually and on impulse. The
purchasers of these relatively low cost, frequently replaceable,
products are likely to be less careful in their purchasing
decisions, and therefore more prone to confusion. See Specialty
Brands, Inc., 748 F.2d 669, 223 USPQ 1281 (Fed. Cir. 1984); and
In re Martin's Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984).
In view of the foregoing, and because identical marks are
used in connection with closely related goods, we find that
confusion is likely.
Decision: The refusal to register under Section 2(d) of the
Trademark Act is affirmed.4

4 As noted previously, if applicant should ultimately prevail in an
appeal from this decision, the application will be remanded to the
examining attorney for appropriate amendment in accordance with our
earlier discussion.