Ladex Corp.

Trademark Trial and Appeal Board

Apr 23, 2001

No. 75310166 (T.T.A.B. Apr. 23, 2001)

4/23/01
Hearing: Paper No. 17
February 14, 2001 AFD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Ladex Corporation
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Serial No. 75/310,166
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George W. Lewis of Jacobson, Price, Holman & Stern, PLLC
for Ladex Corporation.
Susan Leslie DuBois, Trademark Examining Attorney, Law
Office 111 (Craig Taylor, Managing Attorney).
_______
Before Hanak, Rogers and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
On June 17, 1997, Ladex Corporation (applicant) filed
application serial No. 75/310,166 to register the mark
SUNDAY’S BEST for goods ultimately identified as “frozen
shrimp sold through wholesale channels and only to
restaurant and other institutional and commercial buyers”
in International Class 29. The application was based on a
bona fide intent to use the mark in commerce. The
Examining Attorney refused to register the mark under
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser. No. 75/310,166
2
Section 2(d) of the Trademark Act because of prior
Registration No. 1,394,229 for the mark SUNDAY BEST for
“poultry” in International Class 29.1 Both applicant’s and
registrant’s marks are depicted in typed drawings.
After the Examining Attorney made the refusal final,
this appeal followed. Both applicant and the Examining
Attorney filed briefs and, at applicant’s request, an oral
hearing was held.
After considering the arguments of the applicant and
the Examining Attorney, the Examining Attorney’s refusal to
register applicant’s mark for its goods because applicant’s
mark, when used, would create a likelihood that consumers
would be confused, mistaken, or deceived is affirmed.
In cases involving the issue of likelihood of
confusion, we look to the relevant factors set out in In re
E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177
USPQ 563, 567 (CCPA 1973), to determine whether there is a
likelihood of confusion. Not all of the du Pont factors
are applicable in every case. In re Dixie Restaurants, 105
F.3d 1405, 1406, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997).
In this case, the first factor that we consider is
whether the marks are similar. It is obvious, and
1 Issued May 20, 1986. Section 8 and 15 affidavits have been
accepted and acknowledged.
Ser. No. 75/310,166
3
applicant does not contest, that the marks SUNDAY’S BEST
and SUNDAY BEST, both typed drawings, are virtually
identical, except that applicant adds an “’S” to the word
“SUNDAY” in its mark. Applicant does not argue that this
changes the sound, appearance or meaning of the mark.
Second, we now turn to whether applicant’s goods
(frozen shrimp sold through wholesale channels and only to
restaurant and other institutional and commercial buyers)
are related to registrant’s goods (poultry). To determine
whether the goods are related, we must look to the
identification of goods in the application and
registration. Dixie Restaurants, 41 USPQ2d at 1534;
Canadian Imperial Bank of Commerce v. Wells Fargo Bank, 811
F.2d 1490, 1493, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987);
Paula Payne Products v. Johnson Publishing Co., 473 F.2d
901, 177 USPQ 76, 77 (CCPA 1973). Although applicant
limits its identification of goods to frozen shrimp,
registrant’s identification of goods is again not limited,
and we must assume that registrant sells frozen poultry.
The Examining Attorney has made of record numerous
third-party registrations that show that the same sources
supply both poultry and shrimp under the same mark. See In
re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988) (Although third-party registrations “are not evidence
Ser. No. 75/310,166
4
that the marks shown therein are in use on a commercial
scale or that the public is familiar with them, [they] may
have some probative value to the extent that they may serve
to suggest that such goods or services are the type which
may emanate from a single source”). These registrations,
at a minimum, suggest that shrimp and chicken are
distributed under the same mark from the same supplier.
While shrimp and poultry are different products, we have no
reason to disturb the Examining Attorney’s finding that
“these goods are clearly related” and that “it would be
reasonable for purchasers to expect both types of goods to
emanate from one entity under the same trademark.” Brief
at 4-5.
Third, we consider channels of trade for the involved
goods and applicant’s main argument that there are
differences in the channels of trade. “[I]n view of the
amendment to the identification of goods, Applicant’s
products move in restricted channels of trade with the
result that the circumstances of sale would preclude a
likelihood of confusion.” Brief at 3. Applicant correctly
argues that its goods are limited to wholesale purchase by
restaurants and other institutional and commercial buyers
and, thus, applicant distinguishes the circumstances under
which the goods are purchased from those where retail
Ser. No. 75/310,166
5
consumers purchase poultry and shrimp in supermarkets.
However, limiting its goods to wholesale channels of trade
and commercial and institutional purchasers does not mean
that the goods are not related and confusion unlikely.
While applicant has limited its identification of
goods to wholesale channels of trade, registrant’s channels
of trade are not limited by its identification of goods.
Therefore, we must assume that the goods move through all
normal channels of trade for the products. Here, we must
assume that registrant’s poultry moves through wholesale as
well as retail channels of trade and that it would be
purchased by restaurants and other commercial and
institutional buyers. Indeed, we have no reason to assume
that commercial purchasers of frozen shrimp would not also
purchase poultry. Also, the third-party registrations of
record suggest that these products are marketed under the
same mark. The record does not indicate that this would
not be true at the wholesale level.
Fourth, we consider sophistication of purchasers,
another factor on which applicant relies. Even if we
assume that wholesale purchasers of frozen shrimp and
poultry are sophisticated purchasers, these sophisticated
purchasers are likely be confused when virtually identical
marks are used in connection with these related goods.
Ser. No. 75/310,166
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Octocom Systems Inc. v. Houston Computer Services, 918 F.2d
937, 942, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Thus, when a buyer for a restaurant, who is familiar
with the mark SUNDAY BEST for poultry, encounters the mark
SUNDAY’S BEST for frozen shrimp, confusion would be likely.
Decision: The refusal to register is affirmed.