Ridgefield Farm LLC

Trademark Trial and Appeal Board

Feb 25, 2011

No. 77758560 (T.T.A.B. Feb. 25, 2011)

Mailed:
February 25, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ridgefield Farm LLC
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Serial No. 77758560
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Terrell W. Mills of Wyche, Burgess, Freeman & Parham, P.A., for
Ridgefield Farm LLC.

Rudy R. Singleton, Trademark Examining Attorney, Law Office 102
(Karen M. Strzyz, Managing Attorney).
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Before Holtzman, Mermelstein, and Ritchie, Administrative
Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Ridgefield Farm LLC (“applicant”) filed an application to
register the mark shown below for goods identified as “beef,”

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77758560
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in International Class 29. 1
The Trademark Examining Attorney refused registration of
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 so
resembles the registered mark RAISED RIGHT,2 in standard
character form, for “poultry, meat and game,” in International
Class 29, that when used on or in connection with applicant’s
identified goods, it is likely to cause confusion or mistake or
to deceive.
Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney filed
briefs, and applicant filed a reply brief. For the reasons
discussed herein, the Board affirms the refusal to register.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
likelihood of confusion. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d

1 Serial No. 77758560, filed June 12, 2009, pursuant to Section 1(b) of
the Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to
use in commerce, and disclaiming the exclusive right to use the terms
“BEEF” and “REAL BEEF,” apart from the mark as shown. The application
includes the following description: “The mark consists of a brown bull
in profile facing left. Underneath the bull are the words ‘Brasstown
Beef’ in gold letters. Under those words are 5 gold stars. In a
circle around the bull and words are the words “REAL BEEF RAISED RIGHT
AROUND HERE’ in black letters.”
2 Registration No. 3075982, issued April 4, 2006, alleging dates of
first use and first use in commerce on January 9, 2001.
Serial No. 77758560
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1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between
the marks and the similarities between the goods or services.
See 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”).
The Goods and Channels of Trade

Applicant’s identification of goods identifies “beef,”
which is subsumed in the “meat” identified in the cited
registration. Accordingly, the goods are legally identical.
Applicant does not dispute this point.
Because the goods described in the application and the
cited registration are identical, we must presume that the
channels of trade and classes of purchasers are the same. See
Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (“Given
the in-part identical and in-part related nature of the parties’
goods, and the lack of any restrictions in the identifications
thereof as to trade channels and purchasers, these clothing
items could be offered and sold to the same classes of
purchasers through the same channels of trade”); In re Smith and
Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods
are legally identical, they must be presumed to travel in the
same channels of trade, and be sold to the same class of
Serial No. 77758560
4
purchasers”). Additionally, there is nothing in the recital of
goods in either the cited registration or the application that
limits either registrant’s or applicant’s channels of trade.
See In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992)
(because there are no limitations as to channels of trade or
classes of purchasers in either the application or the cited
registration, it is presumed that the registration and the
application 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). In other words, there is
nothing that prevents the applicant’s “beef” from being sold in
the same channels of trade and to the same classes of consumers
that purchase registrant’s “meat.” Accordingly, we find that
these du Pont factors weigh heavily in favor of finding a
likelihood of consumer confusion.
The Marks
Preliminarily, we note that the more similar the goods at
issue, the less similar the marks need to be for the Board to
find a likelihood of confusion. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir.
1992). We consider and compare the appearance, sound,
connotation and commercial impression of the marks in their
entireties. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed.
Cir. 2005).
In comparing the marks, we are mindful that the test is not
whether the marks can be distinguished when subjected to a side-
Serial No. 77758560
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by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial
impression so that confusion as to the source of the goods
and/or services offered under the respective marks is likely to
result. San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff'd unpublished, No. 92-1086 (Fed. Cir. June 5,
1992). The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression
of the marks. Winnebago Industries, Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106, 108 (TTAB 1975).
The mark in the cited registration consists solely of the
words “RAISED RIGHT,” in standard character form. Registrant's
mark “RAISED RIGHT” is incorporated in full in applicant’s mark.
The phrase, “REAL BEEF • RAISED RIGHT • AROUND HERE” in sight
and sound is several syllables/words longer than the mark in the
cited registration. However, the term “RAISED RIGHT,” set off
by raised dots, is a visually significant part of applicant's
mark and it creates an impression apart from the other wording.
Furthermore, the term “RAISED RIGHT” is significant in creating
the commercial impression of applicant's mark as a whole. It is
displayed prominently in the top portion of applicant's mark
directly above the image of a cow, and it gives the same
connotation and commercial impression as registrant' mark, both
Serial No. 77758560
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suggesting beef (or meat) from cattle that have been raised in
the right manner.
We recognize that this is not the entirety of applicant’s
mark, and indeed is balanced by the term “Brasstown Beef,”
appearing prominently in the mark under the image of a cow. The
image of the cow, and the appearance of the word “Beef” do not
change the connotation or commercial impression of the mark as
being offered for “beef” products however. See In re National
Data Corp., 224 USPQ 749, 751 (Fed. Cir. 1985) (“[T]here is
nothing improper in stating that, for rational reasons, more or
less weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on consideration of the
marks in their entireties.”); CBS Inc. v. Morrow, 708 F.2d 1579,
1581-82 (Fed. Cir. 1983); In re Dakin’s Miniatures Inc., 59
UPSQ2d 1593, 1596 (TTAB 2001); In re Appetito Provisions Co.,
Inc., 3 USPQ2d 1553, 1554 (TTAB 1987).
On the balance, we find the dissimilarities of the marks to
be outweighed by their similarities. Certainly, although
applicant’s mark includes the term “Brasstown,” it also contains
the term “RAISED RIGHT,” prominently displayed in the mark.
Accordingly, we find this du Pont factor to also weigh in favor
of finding a likelihood of consumer confusion.
Consumer Sophistication
We take note that “beef,” as identified in the application,
and “meat,” as identified in the cited registration are staple,
relatively inexpensive items that may be subject to impulse
purchases. As our primary reviewing court has noted,
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“purchasers of such products have long been held to a lesser
standard of purchasing care.” In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir.
1984). Accordingly, this weighs in favor of finding a
likelihood of consumer confusion.
Conclusion
In summary, we have carefully considered all of the
evidence and arguments of record relevant to the pertinent du
Pont likelihood of confusion factors. As our precedent
dictates, we resolve doubt in favor of the prior registrant.
Id; See also In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6
USPQ2d 1025 (Fed. Cir. 1988). We conclude that with legally
identical goods travelling in the same channels of trade, and
similar marks with similar connotations, being marketed to
ordinary purchasers who may be expected to exercise no more than
ordinary care in purchasing staple items, there is a likelihood
of confusion between applicant’s mark for which it seeks
registration for “beef,” and the registered mark RAISED RIGHT
for “meat.”
Decision: The refusal to register is affirmed.