Crave, Inc.

Trademark Trial and Appeal Board

Sep 24, 2008

No. 78865900 (T.T.A.B. Sep. 24, 2008)

Mailed: September 24, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Crave, Inc.
________

Serial No. 78865900
_______

Daniel S. Polley of Daniel S. Polley, P.A. for Crave, Inc.

Nakia D. Henry, Trademark Examining Attorney, Law Office
111 (Craig D. Taylor, Managing Attorney).
_______

Before Rogers, Bergsman and Wellington, Administrative
Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Crave, Inc., applicant herein, seeks registration on
the Principal Register of the mark CRAVE (in standard
character form) for services ultimately identified in the
application as “design of product packaging and product
labels for others” in International Class 42.1

1 Serial No. 78865900, filed on April 20, 2006. The application
is based on use in commerce under Trademark Act Section 1(a), 15
U.S.C. §1051(a), and contains an allegation that the mark was
first used anywhere and in commerce on March 31, 2006.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 78865900
2
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. § 1052(d), on the ground that applicant’s
mark is likely to cause confusion with the registered mark
CRĀV for “promoting the sale of goods and services of
others through promotional contests via print media and
electronic media, namely, internet, television, radio and
telephone” in International Class 35.2
Both applicant and the examining attorney filed
briefs.
As a preliminary matter, we note that in applicant’s
request for reconsideration, filed November 19, 2007,
applicant amended the services recited in Class 42 to read
as they currently read and to delete services recited in
Class 35. Nevertheless, the examining attorney, in her
brief, requests that “applicant’s previously claimed
services be deemed abandoned.” Brief, (unnumbered) p. 9.
Specifically, she states that applicant limited its appeal
to the services identified above, but “has not deleted the
remaining services from the application that also pose a
likelihood of confusion.” Id. Applicant did not file a

2 Registration No. 3142459, issued on September 12, 2006. A
description of the mark states “[t]he mark is presented without
any claim as to special form.”

Ser. No. 78865900
3
reply brief or otherwise respond to the examining
attorney’s request. To the extent the examining attorney’s
request for a finding of abandonment is focused on the
Class 35 services, the request is moot, as they have been
deleted by applicant. Similarly, to the extent the request
seeks a finding of abandonment as to the services deleted
from Class 42, the request also is moot.
We now turn to the likelihood of confusion refusal.
Our likelihood of confusion 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 (the du Pont factors). See
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003); In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
Under the first du Pont factor, we look to determine
the similarity or dissimilarity of the marks when viewed in
their entireties in terms of appearance, sound, connotation
and overall commercial impression. Palm Bay Imports, Inc.,
73 USPQ2d at 1692. The test, under the first du Pont
Ser. No. 78865900
4
factor, 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 terms of their
overall commercial impression that confusion as to the
source of the services 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 and service
marks. See Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106 (TTAB 1975). In this case, the average purchasers
would be people running companies that require packaging or
label design and promotional contests to sell their
products or services.
The marks at issue are essentially identical.
Applicant’s mark is CRAVE and the cited registered mark
is CRĀV. In terms of appearance, the only differences
between the two marks are applicant’s addition of the
letter “E” at the end and omission of the horizontal
line directly above the letter “A”. As to the latter
difference, the examining attorney contends that the
horizontal line is a macron, a pronunciation symbol, and
denotes that that the letter “A” is to be pronounced as
a long vowel. As such, the examining attorney asserts
that the two marks are “phonetic equivalents and are
Ser. No. 78865900
5
similar sounding.” Brief, (unnumbered) p. 5.
Applicant, on the other hand, argues, without any
supporting evidence, that the horizontal line “has the
effect of leading one to believe that word [registrant’s
mark] is a foreign word” and “[g]iven that such
pronunciation is typically associated with a foreign
language, consumers viewing Registrant’s mark most
likely will be unfamiliar with such pronunciation,
causing consumers to hesitate and think about
Registrant’s mark to determine how to correctly
pronounce it.” Brief, p. 3.
We agree with the examining attorney that the
registered mark will most likely be viewed and
understood by consumers as containing a long vowel
symbol. We disagree with applicant’s contention that
the pronunciation symbol will not be recognized by
consumers; indeed, anyone who has looked up words in a
dictionary will have encountered this symbol above a
vowel and understands that it indicates that the vowel
is pronounced as a long vowel. Even if one does not
know that the symbol is called a “macron”, the
significance of such a ubiquitous symbol will not be
lost on the consumer. In this regard, we take judicial
Ser. No. 78865900
6
notice of the dictionary definition entry of applicant’s
mark3:
Main Entry:
CRAVE
Pronunciation:
\ˈkrāv\
Function:
verb
Inflected Form(s):
craved; crav·ing
Etymology:
Middle English, from Old English crafian; akin to
Old Norse krefja to crave, demand
Date:
before 12th century
transitive verb1: to ask for earnestly : BEG , DEMAND
2 a: to want greatly : NEED
b: to yearn for intransitive verb: to have a strong or inward
desire

[Merriam-Webster's Collegiate® Dictionary, Eleventh
Edition.]

This dictionary definition demonstrates the use of the
macron over the letter “A” for pronunciation purposes,
indicating that the word is to be pronounced with a
“long A” vowel sound. With this in mind, we find it
perfectly reasonable that the two marks would likewise

3 The Board may take judicial notice of dictionary definitions.
See University of Notre Dame du Lac v. J.C. Gourmet Food Imports
Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983).
Ser. No. 78865900
7
be pronounced in the same manner. Indeed, the
registered mark almost appears to be a pronunciation
entry for applicant’s mark, CRAVE.
In terms of connotation, the marks are also
identical. Again, keeping in mind the defined meaning
of applicant’s mark, we find that applicant’s mark, as
applied to applicant’s services, may serve to suggest
that a product package designed by applicant will entice
consumers “to want badly” or “crave” whatever goods are
contained in the package. Likewise, registrant’s mark,
CRĀV, may have the same suggestive connotation because
it will be perceived as the phonetic equivalent of the
word “crave” thus suggesting too that registrant’s
promotional services will lead consumers to “crave” the
goods being promoted.
Viewing the marks in their entireties, we find that
they are virtually identical and likely to cause
confusion when used in connection with respective
related services (discussed below). Applicant’s
addition of the letter “e” and omission of the macron
above the letter “a” have little effect when trying to
distinguish between the two marks; these slight
differences are outweighed by the marks’ overall
Ser. No. 78865900
8
similarity. The first du Pont factor weighs in favor of
a finding of likelihood of confusion.
Under the second du Pont factor, we look to the
similarity or dissimilarity between applicant’s services,
i.e., “design of product packaging and product labels for
others,” and opposer’s services, i.e., “promoting the sale
of goods and services of others through promotional
contests via print media and electronic media, namely,
internet, television, radio and telephone.” It is helpful
to look at applicant’s prosecution of the application, in
particular with regard to its recited services. In its
use-based application, applicant stated that it “is using
in commerce” its mark “on or in connection with” the
following services (emphasis added):
Business marketing and business advertising consulting
services, namely, corporate branding identity and
development, corporate message identity and
development, brand positioning, product branding,
corporate branding, print advertising, radio
advertising; online advertising; audiovisual
advertising; design of business marketing and
advertising materials, design of product packaging and
product labels; creating multimedia presentations for
others to assist in marketing products and services;
creating print, radio, online and audiovisual
advertising for others to assist in marketing products
and services; creating brochures, catalogs, printed
business communications, annual reports for others to
assist in marketing or describing products and
services; development of business promotions and
giveaways; logo design, website design in
International Class 035.

Ser. No. 78865900
9
Applicant responded to the first Office Action’s
requirement for a more definite recitation of services by
amending its recitation to the following (emphasis added):
Business marketing and business advertising consulting
services, namely, corporate branding identity and
development, corporate message identity and
development, brand positioning, product branding,
corporate branding, print advertising, radio
advertising; online advertising; audiovisual
advertising; design of business marketing and
advertising materials, design of product packaging and
product labels; creating multimedia presentations for
others to assist in marketing products and services;
creating print, radio, online and audiovisual
advertising for others to assist in marketing products
and services; creating brochures, catalogs, printed
business communications, annual reports for others to
assist in marketing or describing products and
services; development of business promotions and
giveaways; logo design, website design in
International Class 035; and

Design of product packaging and product labels for
others; creating multimedia presentations for others
to assist in marketing products and services; website
design for others in International Class 42.4

We hasten to make clear that our analysis under the
second du Pont factor, involving the similarity or
dissimarility of the respective services, is limited to
applicant’s services as currently identified in the
application. In other words, our analysis does not involve
a likelihood of confusion between any of the deleted
services and the services in the cited registration.

4 As noted above, in its request for reconsideration, applicant
amended the recitation of services currently before us.
Ser. No. 78865900
10
Nonetheless, we note that on two occasions applicant stated
under oath that it was rendering services in commerce that
are closely related, if not encompassing, the services
recited in the cited registration, and using the applied-
for mark for such services. These statements indicate that
a company, such as applicant, would render or contemplate
rendering, under a single mark, both product packaging and
label design services for others as well as services
applicant described as: design of business marketing and
advertising materials; development of business promotions
and giveaways; print advertising, radio advertising; and
online advertising. Applicant also stated in response to
the first Office Action that it “works with companies in
the design and development of their corporate brands and
identity, advertising material and product packaging and
with brand integration.”
Applicant’s statements in adopting its ultimate
recitation of services are somewhat contradictory to its
arguments made later in the request for reconsideration and
brief. Specifically, applicant later argues that its
product label and packaging design services “have nothing
to do with advertising or promoting broadly, and are even
further remote to [registrant’s services], namely,
promotional contests.” Brief, p. 3. Because the
Ser. No. 78865900
11
respective services are “completely unrelated and
different,” applicant contends that “companies
specializing in product packaging and product label design
are not known for providing promotional contest services.”
Id., p. 4.
The evidence submitted by the examining attorney also
shows a relationship between applicant’s product and label
design services for others with the cited registrant’s
promotional services for others’ goods and services.
Specifically, she attached Internet evidence that includes
printouts from online articles and websites of third
parties. For example, we note in the article “Are
Promotional Contests Affecting Children and Youth,” the
proliferation of promotional contests targeting children is
attributed to “their spending power, purchasing influence
and malleability with respect to branding.”5 The article
also shows that “branding campaigns” may be “kicked off”
with a promotional contest. Connecting promotional
contests to “branding” services is relevant because
applicant describes itself, in its specimen of record, as a

5 “Are Promotional Contests Affecting Children and Youth” (Tim
Pelton, Katharina Paxman and Leslee F. Pelton, June 4, 2005).
Printouts retrieved from
www.youth.society.uv.ca/resources/documents/promo-contest-yh-cys-
june6.pdf, and attached to Office action dated May 19, 2007.
Ser. No. 78865900
12
“brand identify and packaging design firm for food and
beverage companies.”
In addition, the printouts from the “American
Sweepstakes & Promotion Co” (ASPC) website also demonstrate
a relationship between promoting the goods and/or services
of others through contests and “creative design” services
for others.6 As the examining attorney noted, the website
indicates that ASPC renders promotional services for
other’s goods and/or services and also provides “a la
carte” business services that include “creative design”
services. We agree with the examining attorney that, in
the context of, and in conjunction with, promotional
contests, this could include product packaging or label
design services.
The examining attorney also submitted several third-
party registrations to show that the respective services
may emanate from a common source.7 Although such

6 Printouts retrieved from www.american-sweeps.com, attached to
Office action dated January 11, 2008.
7 Applicant objected to the examining attorney’s reliance on two
of the third party registrations (Reg. Nos. 3081102 and 3114397)
because they do not have use in commerce dates. The objection is
sustained and the registrations have not been considered. As we
have held many times before, registrations without use in
commerce dates are not indicative of a common source in the
United States of the goods or services identified therein and
have no probative value. See, e.g., In re Mucky Duck Mustard Co.
Inc., 6 USPQ2d 1467, 1470, n. 6 (TTAB 1988) (third-party
registrations which are based upon foreign registrations “are not
even necessarily evidence of a serious intent to use the marks
Ser. No. 78865900
13
registrations are not evidence that the marks shown therein
are in use or that the public is familiar with them, they
nonetheless have probative value to the extent that they
may serve to suggest that the services listed therein are
of a kind which may emanate from a single source under a
single mark. See In re Albert Trostel & Sons Co., 29
USPQ2d 1783 (TTAB 1993). Registration No. 2810421 (for the
mark SERCHLITE) indicates that the same source provides
both promotional services for others via contests as well
as “creating brand identity for others.” Registration No.
2800018 (for the mark EL VOCEADOR) also identifies services
that include promoting the goods and services of others
through a variety of methods, including contests, as well
as providing “branding campaigns for others.” Again,
although applicant has limited its services to product
packaging and label design services for others, the
specimen of record indicates that applicant’s services are
compatible with, and include, creating “brand identity” for
others.
Upon consideration of all of the evidence, we find
that there is, at the very least, a viable relationship

shown therein in the United States on all of the listed goods and
services, and they have very little, if any, persuasive value on
the point for which they were offered.”).

Ser. No. 78865900
14
between registrant’s promotional services and applicant’s
product label and packaging design services. It is also
certainly foreseeable that the same services may be
integrated into one project for the same consumer. For
example, someone designing a promotional contest for a
client who produces goods (of any type) might easily settle
on a promotion that urges prospective consumers of those
goods to "look for specially marked labels or packages,”
designating goods involved in the promotion; this would
therefore entail incorporating specifically designed labels
or packages for the promotion.
Accordingly, we find that the second du Pont factor
weighs in favor of a finding of likelihood of confusion.
Because there are no limitations as to channels of
trade or classes of purchasers in either the application or
the registration, it is presumed that the registration and
the application encompass all of the services of the type
described in the description of services, that the services
so identified move in all channels of trade normal for
those services, and that the services are available to all
classes of purchasers for the listed services. See In re
Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). In this
case, the same consumers may need applicant’s packaging
design services, as well as the registrant’s promotional
Ser. No. 78865900
15
services. Accordingly, we find that the channels or trade
and classes of consumers may be the same.
Finally, applicant argues that it “has never heard or
run across Registrant in the marketplace or at industry
shows or events and has never experience (sic) a single
instance of consumer confusion between the respective
marks, despite both being in commerce and located in
Florida for approximately two years.” Brief, p. 6. In an
ex parte case, as we have here, the absence of actual
confusion is hardly unusual and seldom is a significant
factor in finding that there is no likelihood of confusion.
In particular, we have no evidence here as to extent of
either applicant’s or the registrant’s use of the
respective marks, and therefore we cannot determine whether
there has been any significant opportunity for actual
confusion to have occurred. See Majestic Distilling, 65
USPQ2d at 1205 (“The lack of evidence of actual confusion
carries little weight”). Thus, we consider this factor to
be neutral.
For the reasons discussed above, and considering all
of the evidence of record pertaining to the du Pont
factors, we conclude that a likelihood of confusion exists.
Applicant’s mark is essentially identical to the cited
registered mark, and applicant’s services are related to
Ser. No. 78865900
16
the services recited in the cited registration and the
services move in the same channels of trade, to same
classes of consumers.
Decision: The refusal to register is affirmed.