Food Processing Equipment Co.

Trademark Trial and Appeal Board

Jul 22, 2003

No. 75909664re (T.T.A.B. Jul. 22, 2003)

Mailed:
July 22, 2003
Bottorff
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Food Processing Equipment Co.
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Serial No. 75/909,661
Serial No. 75/909,662
Serial No. 75/909,664
Serial No. 75/909,666
Serial No. 75/909,667
Serial No. 75/909,668
Serial No. 75/917,250
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Request for Reconsideration
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Before Cissel, Seeherman and Bottorff, Administrative
Trademark Judges.
Opinion by Bottorff, Administrative Trademark Judge:
Applicant has requested reconsideration of our May 7,
2003 decision affirming the Trademark Examining Attorney’s
final Section 2(d) refusals of registration in the seven
above-captioned applications. We have carefully considered
applicant’s arguments, but we are not persuaded that we
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. Nos. 75/909,661, et al.
2
committed any error in our findings or in our decision.
Accordingly, we deny the request for reconsideration.
Specifically, we stand by our finding that applicant’s
and registrant’s respective goods, and the trade channels
and classes of purchasers therefor, are similar. That
finding was properly based on the evidence of record
showing that the goods identified in applicant’s
applications and registrant’s registration are types of
goods which can be and are marketed by a single source to
the same classes of purchasers. That applicant and
registrant themselves might not currently market their
respective goods to the same specific purchasers is not
dispositive. Our determination is based, and must be
based, on the goods as identified in the application and in
the registration, not on what applicant’s and registrant’s
specific actual marketing practices currently might be.
See, e.g., Canadian Imperial Bank of Commerce, N.A. v.
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir.
1987), and cases cited therein.
In its request for reconsideration, applicant also
contends that we accorded improper weight to counsel’s
statements, made during a colloquy at the oral hearing, to
the effect that Tyson’s Foods might be a purchaser of both
applicant’s and registrant’s types of goods. We disagree.
Ser. Nos. 75/909,661, et al.
3
Our findings regarding the similarity of the goods, trade
channels and classes of purchasers are based on the
evidence in the record showing third-party use and
registration of similar marks for both types of goods, not
on counsel’s statements at the oral hearing. Counsel’s
statements at the oral hearing are not evidence; we regard
them as merely corroborative of our findings regarding the
relatedness of the goods. In these circumstances, we see
no error in our mention of counsel’s statements in our
opinion.
Applicant next argues that we erred when we found that
there is no evidence in the record regarding the cost of
the goods or the sophistication of the purchasers.
Applicant contends that because counsel’s argument on these
points at the oral hearing was not disputed by the
Trademark Examining Attorney, we should deem counsel’s
statements regarding the cost of the goods and the
sophistication of purchasers to be “thus established by the
record below.” We are not persuaded. Counsel’s assertions
and arguments at the oral hearing are not evidence. See
Trademark Rule 2.142(d).
Further with respect to the issue of the
sophistication of purchasers, when we stated in our opinion
that “we cannot conclude on this record that purchasers
Ser. Nos. 75/909,661, et al.
4
would be immune to source confusion resulting from the
relatedness of the respective goods and the strong
similarity of the marks,” we were not suggesting that
“immunity to source confusion,” instead of likelihood of
confusion, is the test under Section 2(d). Rather, we
meant only that there is no basis in the record for
concluding that purchasers who otherwise are likely to be
confused due to the relatedness of the goods and the strong
similarity of the marks would be immunized or protected
from such likely confusion by virtue of their
sophistication. See In re Decombe, 9 USPQ2d 1812 (TTAB
1988); In re Pellerin Milnor Corp., 221 USPQ 558 (TTAB
1983).
In summary, we see no error in our decision. As noted
in our previous opinion, to the extent that any doubts
exist as to the registrability of applicant’s marks, such
doubts must be resolved against applicant. See In re Hyper
Shoppes (Ohio) Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir.
1988); In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d
1565, 223 USPQ 1289 (Fed. Cir. 1984).
Decision on reconsideration: Applicant’s request for
reconsideration is denied. Our decision affirming the
refusals to register stands.