GloryBee Natural Sweeteners, Inc., dba GloryBee Foods, Inc.v.Elijah F. Kelly and Arlette K. Bright

Trademark Trial and Appeal Board

Nov 30, 2020

91243216 (T.T.A.B. Nov. 30, 2020)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: November 30, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

GloryBee Natural Sweeteners, Inc. d/b/a GloryBee Foods, Inc.

v.

Elijah F. Kelly and Arlette K. Bright
_____

Opposition No. 91243216
_____

Ian D. Gates of Dascenzo Intellectual Property Law PC,
for GloryBee Foods, Inc.
Bruce F. Bright of Ayers Jenkins Gordy & Almand PA,
for Elijah F. Kelly and Arlette K. Bright.
_____

Before Cataldo, English, and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicants, Elijah F. Kelly and Arlette K. Bright, filed an application to register
the mark SAVE THE BAYBEES (in standard characters) on the Principal Register
for “honey” in International Class 30 (“the Application”).1

1 Application Serial No. 87743178, filed January 4, 2018 under Section 1(b) of the Trademark
Act, based on an alleged bona fide intent to use the mark in commerce.
Opposition No. 91243216
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Opposer GloryBee Natural Sweetners, Inc. d/b/a GloryBee Foods, Inc., has
opposed registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),
on the ground of priority and likelihood of confusion with Opposer’s previously used
and registered marks: (1) SAVE THE BEE (in standard characters)2 for “breakfast
cereals; ice cream; honey; flavored honey; bread,” in International 30; “beer” in
International Class 32; and “promoting public awareness of environmental matters;
promoting public awareness of declining bee populations; and promoting public
awareness of honey bee colony collapse disorder,” in International Class 35; and (2)
SAVE THE BEE and design (shown below)3 for “honey; flavored honey,” in
International Class 30; and “promoting public awareness of environmental matters;
promoting public awareness of declining bee populations; promoting public
awareness of honey bee colony collapse disorder,” in International Class 35:

Applicants denied the salient allegations in their answer to the notice of
opposition. This case is fully briefed. For the reasons that follow, we sustain the
opposition.

2 Registration No. 5195355; registered May 2, 2017.
3 Registration No. 4695164; registered March 3, 2015.
Opposition No. 91243216
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I. Preliminary Issue
The notice of opposition identifies the opposer in this proceeding as GloryBee
Foods, Inc., an Oregon corporation.4 However, the notice of opposition also indicates
that “‘GloryBee, Foods, Inc.’ is a registered Assumed Business Name of GloryBee
Natural Sweeteners, Inc. and thus GloryBee Foods, Inc. and GloryBee Natural
Sweeteners, Inc. are one and the same entity.”5
Beginning in March 2019, and continuing thereafter, Opposer was identified in
case captions for this proceeding by both Opposer and Applicants as “GloryBee
Natural Sweetners, Inc. d/b/a GloryBee Foods, Inc.”6 Additionally, in May 2020, the
parties stipulated to the introduction into evidence showing that GloryBee Foods, Inc.
is a registered Assumed Business name of GloryBee Natual Sweeteners, Inc.7
In view of the foregoing, we find that GloryBee Natural Sweetners, Inc. d/b/a
GloryBee Foods, Inc. is the proper party-opposer to this proceeding, and that the
parties expressly consented to amend the caption of this opposition accordingly. See
Fed. R. Civ. P. 15(b); Wet Seal, Inc. v. FD Mgmt., Inc., 82 USPQ2d 1629, 1633 (TTAB
2007). The pleadings are deemed amended as such.

4 1 TTABVUE 1, 4 (Cover page, ¶ 1). Citations to the record and briefs in this opinion are to
the publicly available documents on TTABVUE, the Board's electronic docketing system. The
number preceding “TTABVUE” corresponds to the docket entry number, and the number(s)
following “TTABVUE” refers to the page number(s) of the downloadable .pdf version of that
particular docket entry.
5 Id. at 2 (¶ 2).
6 See 10, 12-13, 15-20 TTABVUE.
7 17 TTABVUE 2, 13-15.
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II. The Record
The record includes the pleadings; the file of the opposed application pursuant to
Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1); Opposer’s notice of reliance on
Applicants’ responses to certain interrogatories and requests for admission;8 copies
of information regarding Opposer’s SAVE THE BEE registrations from the USPTO’s
electronic database showing the current status and Opposer’s ownership of the
registrations;9 a copy of the renewal of Opposer’s assumed business name registration
of GLORYBEE FOODS, INC. in Oregon;10 and Applicants’ notice of reliance on the
testimony affidavit of Applicant Elijah Kelly with exhibits.11
III. Entitlement to a Statutory Cause of Action12
Entitlement to a statutory cause of action is a threshold issue in every inter partes
case. See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370,

8 15 TTABVUE.
9 17 TTABVUE 5-12 (Stipulation for Introduction of Opposer’s Registrations and Assumed
Business Name, Exhibits A-B); 21 TTABVUE (Board order accepting stipulation). See
Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d).
10 Id. at 13-15 (Exhibit C).
11 16 TTABVUE 43-103. Applicants also submitted a number of other documents with their
notice of reliance, including their own complete answers and responses (including
supplemental answers and responses) to all of Opposer’s interrogatories, requests for
admissions, and requests for production of documents (including documents provided with
those responses). For a number of reasons, those documents are not properly of record. See
e.g., Trademark Rules 2.120(k)(5), 37 C.F.R. § 2.120(k)(5), and TRADEMARK TRIAL AND
APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 704.08(c). In any event, the issue is moot
since Applicants do not rely on that evidence with respect to any of Opposer’s arguments at
issue in this proceeding.
12 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change in
nomenclature, our prior decisions and those of the Federal Circuit interpreting Section 13
and 14 remain equally applicable.
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2020 USPQ2d 10837, *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 109 USPQ2d 2061, 2067 n.4 (2014)). A party in the
position of plaintiff may oppose registration of a mark where such opposition is within
its zone of interests and damage is proximately caused by registration of the mark.
Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, * 6-7 (Fed. Cir.
2020). “Proof of [entitlement to a statutory cause of action] in a Board opposition is a
low threshold, intended only to ensure that the plaintiff has a real interest in the
matter, and is not a mere intermeddler.” Syngenta Crop Protection Inc. v. Bio-Chek
LLC, 90 USPQ2d 1112, 1117 n.8 (TTAB 2009) (citing Ritchie v. Simpson, 170 F.3d
1092, 50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999)).
Opposer made of record its registrations for its SAVE THE BEE marks pursuant
to Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1), by filing a stipulation between
the parties wherein they agreed to the introduction of attached printouts of
information for those registrations from the USPTO's electronic databases showing
the current status and Opposer’s ownership of the registrations.13 The registrations
show that opposition of the mark is within Opposer’s zone of interests and that
damage would be proximately caused by registration of the mark. Thus, Opposer has
established an entitlement to a statutory cause of action. See, e.g., Cunningham v.
Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000) (plaintiff’s
two prior registrations suffice to establish plaintiff’s direct commercial interest and

13 17 TTABVUE 5-12 (Stipulation for Introduction of Opposer’s Registrations and Assumed
Business Name, Exhibits A-B).
Opposition No. 91243216
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its entitlement to a statutory cause of action); N.Y. Yankees P’ship v. IET Prods. &
Servs., Inc., 114 USPQ2d 1497, 1501 (TTAB 2015).
IV. Likelihood of Confusion
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), prohibits the registration of a
mark that
[c]onsists of or comprises a mark which so resembles a
mark registered in the Patent and Trademark Office, or a
mark or trade name previously used in the United States
by another and not abandoned, as to be likely, when used
on or in connection with the goods of the applicant, to cause
confusion, or to cause mistake, or to deceive.

To prevail on its Section 2(d) claim, Opposer must prove by a preponderance of the
evidence that it has priority in the use of its marks and that Applicants’ use of their
mark is likely to cause confusion, mistake, or deception as to the source or
sponsorship of the goods and services identified in the application. Cunningham, 55
USPQ2d at 1844 (plaintiff must prove priority and likelihood of confusion by a
preponderance of the evidence); Hydro-Dynamics, Inc. v. George Putnam & Co., 811
F.2d 1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987) (same).
Our analysis is based on all of the probative evidence of record. In re E. I. DuPont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). In
making our determination, we consider each DuPont factor for which there is
evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160,
1162-63 (Fed. Cir. 2019). Varying weights may be assigned to each DuPont factor
depending on the evidence presented. See Citigroup Inc. v. Capital City Bank Grp.
Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992
Opposition No. 91243216
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F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various evidentiary factors
may play more or less weighty roles in any particular determination”). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the goods and services. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (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.”).
Because Opposer’s pleaded registrations are of record and Applicants have not
counterclaimed to cancel them, priority is not at issue with respect to the marks and
goods and services identified in those registrations. Mini Melts, Inc. v. Reckitt
Benckiser LLC, 118 USPQ2d 1464, 1469 (TTAB 2016) (citing King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974)).14
We focus our analysis on Opposer’s pleaded Registration No. 5195355 for the mark
SAVE THE BEE in standard characters (“the Registration”) for, inter alia, “honey,”
which is most similar to Applicants’ mark for in part identical goods. If we do not find

14 Applicants, twice in this proceeding, attempted to file a counterclaim for cancellation of
Opposer’s registrations on the ground of lack of distinctiveness, which the Board denied on
procedural grounds. 8 TTABVUE (Counterclaim for Cancellation); 12 TTABVUE (Motion for
Leave to File Counterclaim for Cancellation); 14 TTABVUE (Board order). Applicants argue
that “[t]here is no proof anywhere in the record that Opposer has engaged in any commercial
or other activities, using its ‘SAVE THE BEE’ mark in the Eastern United States.” 19
TTABVUE 4 (Applicants’ Brief). While an applicant normally must show that it has used the
mark in commerce before it is entitled to registration, an opposer does not need to show use
in interstate commerce before it can establish priority. First Niagara Ins. Brokers Inc. v. First
Niagara Fin. Grp. Inc., 476 F.3d 867, 81 USPQ2d 1375, 1378 (Fed. Cir. 2007); Bourns, Inc. v.
Int’l Resistance Co., 341 F.2d 146,144 USPQ 424, 425 (CCPA 1965) (“It is not necessary under
15 U.S.C. 1063 for an opposer to aver and prove use of the mark in interstate commerce”).
Opposition No. 91243216
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confusion likely between that registered mark and Applicants’ mark, we would also
not find confusion likely between Opposer’s other registered mark and Applicants’
mark. In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
A. Similarity of the Goods, Trade Channels, and Purchasing Conditions

The second DuPont factor considers the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration”; the third DuPont
factor considers the “similarity or dissimilarity of established, likely-to-continue
trade channels”; and the third DuPont factor considers the “conditions under which
and buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated
purchasing.” DuPont, 177 USPQ at 567.
The identification of goods in both the Registration and the Application identify
“honey.” Accordingly, the parties’ goods are identical in part. As such, we must
presume that those goods travel through the same channels of trade to the same or
overlapping classes of purchasers. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127
USPQ2d 1797, 1801 (Fed. Cir. 2018); In re Information Builders Inc., 2020 USPQ2d
10444, *3 (TTAB 2020) (citing In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ
721, 723 (CCPA 1968)).
Moreover, because there are no price limitations on Opposer’s or Applicants’ honey
(a common, edible nectar), we must presume that the honey will be sold at all price
points and include low-cost honey. See In re i.am.symbolic, LLC, 116 USPQ2d 1406,
1413 (TTAB 2015), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017). Indeed,
such goods may be subject to impulse purchases. Recot Inc. v. Becton, 214 F.3d 1322,
Opposition No. 91243216
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54 USPQ2d 1894, 1899 (Fed. Cir. 2000) (“When products are relatively low-priced and
subject to impulse buying, the risk of likelihood of confusion is increased because
purchasers of such products are held to a lesser standard of purchasing care.”);
Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 223 USPQ 1281,
1282 (Fed. Cir. 1984).
The second, third, and fourth DuPont factors weigh heavily in favor of finding
likelihood of confusion.
B. The Similarity or Dissimilarity of the Marks

The first DuPont factor considers the “similarities or dissimilarities of the marks
in their entireties as to appearance, sound, connotation and commercial impression.”
DuPont, 177 USPQ at 567. “Similarity in any one of these elements may be sufficient
to find the marks confusingly similar.” In re Inn at St. John’s, 126 USPQ2d 1742,
1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d
mem., 777 Fed. Appx. 516 (Fed. Cir. 2019)).
The test is not whether the marks can be distinguished in a side-by-side
comparison, but rather whether their overall commercial impressions are so similar
that confusion as to the source of the goods and services offered under the respective
marks is likely to result. See Cai v. Diamond Hong, Inc., 127 USPQ2d at 1801 (citing
Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012)). Our focus is on the recollection of the average purchaser, who normally
retains a general rather than a specific impression of trademarks. See Inter IKEA
Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); Neutrogena Corp. v.
Opposition No. 91243216
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Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687, 688 (CCPA 1969) (many consumers
“may have but dim recollections from having previously seen or heard one or the other
of the involved marks.”).
Opposer argues that Applicants’ SAVE THE BAYBEES mark is “nearly identical”
in appearance, sound, connotation, and commercial impression to Opposer’s SAVE
THE BEE marks.15 Specifically, Opposer contends that Applicants have merely
added a geographical term—BAY—to the word BEE in Opposer’s mark and
pluralized it by adding an “s,” which “does not create a distinct commercial
impression, but rather is suggestive of a narrower, more specific commercial
impression fully encompassed within the commercial impression of Opposer’s SAVE
THE BEE Marks.”16 In support, Opposer points to Applicants’ admission that “the
term ‘BAYBEES’ as used in [Applicants’] mark means bees existing, cultivated, kept,
populating hives, used for pollination, farmed, or brought to the Eastern Shore (of
Maryland, Delaware, and Virginia) and Chesapeake Bay region, including the coastal
bays within that region.”17
Applicants, while denying any similarity between the marks, agree that SAVE
THE BAYBEES “connotes cultivation and growth of the honey bee population on the
Eastern Shore of Maryland, Delaware, and Virginia (which includes the Chesapeake
Bay and coastal bays in that region).”18

15 18 TTABVUE 9 (Opposer’s Brief).
16 Id. at 10-11.
17 Id. at 7; 15 TTABVUE 12 (Opposer’s Notice of Reliance, Exhibit 3).
18 19 TTABVUE 3, 8 (Applicants’ Brief).
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We agree with Opposer that the parties’ marks are confusingly similar.
Applicants’ mark fully incorporates the wording in Opposer’s SAVE THE BEE mark
and merely adds the common geographically descriptive term BAY to the mark.
Likelihood of confusion is not necessarily avoided between otherwise confusingly
similar marks merely by adding a term that is descriptive or suggestive of the named
goods or services. See e.g., In re Corning Glass Works, 229 USPQ 65, 66 (TTAB 1985)
(holding CONFIRM for a buffered solution equilibrated to yield predetermined
dissolved gas values in a blood-gas analyzer, and CONFIRMCELLS for diagnostic
blood reagents for laboratory use, likely to cause confusion, noting that the relevant
consumers would view the “CELLS” portion of CONFIRMCELLS as merely
descriptive); In re Energy Images, Inc., 227 USPQ 572, 573 (TTAB 1985) (holding
SMART-SCAN (stylized) for optical line recognition and digitizing processors, and
SMART for telemetry systems and remote-data gathering and control systems, likely
to cause confusion, noting that, because of the descriptive significance of the term
“SCAN,” it would be the portion of applicant’s mark that consumers would least likely
rely upon to distinguish applicant’s goods).
Moreover, the pluralization of Applicants’ mark is insignificant and does not
change the overall impression of the mark. Wilson v. Delaunay, 245 F.2d 877, 114
USPQ 339, 341 (CCPA 1957) (there is no material difference, in a trademark sense,
between singular and plural forms of a word).
The first DuPont factor weighs in favor of finding a likelihood of confusion.
Opposition No. 91243216
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C. Strength of Opposer’s Mark
The fifth DuPont considers the “fame” or strength of Opposer’s mark, while the
sixth DuPont factor considers the number and nature of similar marks in use for
similar goods. DuPont, 177 USPQ at 567.
Applicants argue that Opposer’s mark is both commercially and conceptually
weak.19 In support of this contention, Applicants provided (a) printouts of the first
twenty-five pages of Google search results for the term “Save the Bee” out of 1,720,000
results; (b) printouts of the first twenty-five pages of Google search results for the
term “Save the Bees” out of 4,810,000 results; and (c) printouts of the first five pages
of a Google search for the term “‘Save the Bee’ and ‘Glory Bee’” out of 5,000 results.20
Applicants argue that this evidence “demonstrates clearly how widely the phrases
‘save the bee’ and/or ‘save the bees’ are used globally by a host of consumer goods
companies and organizations,” and that “use of ‘Save the Bees’ by others—which is
much more similar to Opposer’s mark than ‘Save the BayBees’—is far and wide.”21
In reply, Opposer argues that the evidence has “limited probative value” because
“Applicants fail to identify with particularity how any of the entries from the fifty-
eight pages of Internet search results … somehow weaken Opposer’s SAVE THE BEE
Marks.”22 In addition, “several of the entries in Applicants’ evidence actually relate

19 19 TTABVUE 9 (Applicants’ Brief).
20 16 TTABVUE 46-103 (Testimony affidavit of Elijah Kelly, Exhibits A-C).
21 19 TTABVUE 9 (Applicants’ Brief).
22 20 TTABVUE 4 (Opposer’s Rebuttal Brief).
Opposition No. 91243216
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to Opposer’s own use.”23 Further, “nearly all of the remaining results from Applicants’
evidence do not establish third-party use of the SAVE THE BEE mark or the SAVE
THE BEES mark as a trademark for actual goods, let alone for honey or similar
goods.” Opposer therefore concludes that “Applicants have failed to establish that
Opposer’s SAVE THE BEE Marks are weak and entitled to less than the normal scope
of protection to which inherently distinctive marks are entitled.”24
We agree that the Google search results provided by Applicants have limited
probative value. See, e.g., In re Int’l Business Machines Corp., 81 USPQ2d 1677, 1679
n. 3 (TTAB 2006) (listings of search results from Google database of limited probative
value because the excerpts are extremely truncated). Nonetheless, we have
considered the listings for they what they shows on their face, i.e., that consumers
(including U.S. consumers)25 have been widely exposed to the term SAVE THE
BEE(S) in connection with bee conservation efforts. Rocket Trademarks Pty Ltd., 98
USPQ2d 1066, 1072 (TTAB 2011) (internet printouts “on their face, show that the
public may have been exposed to those internet websites and therefore may be aware
of the advertisements contained therein”).
That said, “[t]he inherent or conceptual strength of Opposer’s [SAVE THE BEE
marks] is not seriously at issue.” New Era Cap Co. v. Pro Era LLC, 2020 USPQ2d
10596, *10 (TTAB 2020). Opposer’s mark SAVE THE BEE for “honey” and other food

23 Id.
24 Id. at 5.
25 We consider only those listings that appear to be from U.S. websites.
Opposition No. 91243216
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goods, as well as services including “promoting public awareness of declining bee
populations” is “inherently distinctive as evidenced by its registration on the
Principal Register without a claim of acquired distinctiveness under Section 2(f) of
the Trademark Act.” Id. (citing Tea Bd. of India v. Republic of Tea, Inc., 80 USPQ2d
1881, 1889 (TTAB 2006)). Moreover, even if SAVE THE BEE is highly suggestive of
services related to bee conservation efforts, that is not the issue. Rather, the issue is
the strength of Opposer’s mark with regard to honey, which is identified by both
parties’ marks. Applicants have presented no evidence, nor have Applicants argued,
that SAVE THE BEE is weak in relation to honey. As such, we must assume that it
is at most suggestive of the goods and services identified in the cited registration and
should be accorded the scope of protection to which inherently distinctive marks are
entitled. See Maytag Co. v. Luskin’s, Inc., 228 USPQ 747, 750 (TTAB 1986).
The fifth and sixth DuPont factors are neutral in our analysis.
D. Absence of Actual Confusion
Referring to the eighth DuPont factor, which considers “the length of time during
and conditions under which there has been concurrent use without evidence of actual
confusion,” In re Guild Mortg. Co., 129 USPQ2d at 1162 (quoting DuPont, 177 USPQ
at 567), Applicants contend that “[t]here is no proof, at all, of any actual confusion.”26
The “absence of any reported instances of actual confusion would be meaningful only
if the record indicated appreciable and continuous use by [Applicants] of [their] mark
for a significant period of time in the same markets as those served by [Opposer]

26 19 TTABVUE 9 (Applicants’ Brief).
Opposition No. 91243216
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under its marks.” Gillette Can. Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB
1992). However, the record is devoid of any evidence of any use by Applicants, whose
application is based on an intent to use. The eighth DuPont factor is neutral in our
analysis.
V. Conclusion
In sum, we find that the first, second, third, and fourth DuPont factors weigh in
favor of likelihood of confusion (the first three, heavily), and the fifth, sixth and eighth
DuPont factors are neutral.
Decision: The opposition is sustained and registration to Applicants is refused.