Sweet Tree Holdings 1, LLCDownload PDFTrademark Trial and Appeal BoardOct 5, 2017No. 86692334 (T.T.A.B. Oct. 5, 2017) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: October 5, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Sweet Tree Holdings 1, LLC _____ Serial No. 86692334 _____ Michael J. Wasco, Paul Frank & Collins PC, for Sweet Tree Holdings 1, LLC. Tamara Frazier, Trademark Examining Attorney, Law Office 116, Christine Cooper, Managing Attorney. _____ Before Quinn, Wellington, and Larkin, Administrative Trademark Judges. Opinion by Larkin, Administrative Trademark Judge: Sweet Tree Holdings 1, LLC (“Applicant”) seeks registration on the Principal Register of the claimed mark SWEET TREE in standard characters (SWEET disclaimed) for “teas; tea-based beverages; tea-based beverages with maple sweeteners,” in International Class 30.1 The Trademark Examining Attorney has refused registration of the claimed mark under Section 2(d) of the Trademark Act, 15 1 Application Serial No. 86692334 was filed on July 14, 2015 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), on the basis of Applicant’s allegation of a bona fide intention to use the mark in commerce. Serial No. 86692334 - 2 - U.S.C. § 1052(d), on the ground that it so resembles the mark SWEET TREE SUSTAINABLE SWEETENERS in standard characters (SWEET and SUSTAINABLE SWEETENERS disclaimed), shown in Registration No. 3893770 for “honey; natural sweetener; sugar,” in International Class 30,2 as to be likely, when used in connection with Applicant’s goods, to cause confusion, mistake, or deception. When the Examining Attorney made the refusal final, Applicant timely appealed. The appeal has been fully briefed. We affirm the refusal to register. Likelihood of Confusion Analysis Section 2(d) of the Trademark Act prohibits the registration of a mark that so resembles a registered mark as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C. § 1052(d). Our determination of likelihood of confusion under § 2(d) is based upon an analysis of all probative facts in the record that are relevant to the likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). We consider each du Pont factor that is relevant and for which there is record evidence. See, e.g., M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015). In every case under Section 2(d), 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., 2 The cited registration issued on December 21, 2010 and was maintained in February 2016 through the acceptance of the registrant’s declaration of continuing use under Section 8 of the Trademark Act, 15 U.S.C. § 1058. Serial No. 86692334 - 3 - 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”). A. Similarity of the Marks This factor focuses on “‘the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.’” Palm Bay Imps. Inc. v. Veuve Cliquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). “The proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted). As Applicant acknowledges, “‘the proper focus is on the recollection of the average customer, who retains a general rather than a specific impression of the mark.’” 8 TTABVUE 10 (quoting Bass Pro Trademarks, L.L.C. v. Sportsman’s Warehouse Inc., 89 USPQ2d 1844, 1857 (TTAB 2008)). “[L]ikelihood of confusion cannot be predicated on dissection of a mark, that is, on only part of a mark. On the other hand, in articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, Serial No. 86692334 - 4 - provided the ultimate conclusion rests on consideration of the marks in their entireties.” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). The cited mark SWEET TREE SUSTAINABLE SWEETENERS begins with Applicant’s claimed mark SWEET TREE, and “it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered.” Presto Prods. Inc. v. Nice-Pak Prods. Inc., 9 USPQ2d 1895, 1897 (TTAB 1988); see also Palm Bay, 73 USPQ2d at 1692; In re Integrated Embedded, 120 USPQ2d 1504, 1513 (TTAB 2016). This principle applies with particular force to the cited mark because the words SUSTAINABLE SWEETENERS that follow SWEET TREE simply describe the identified goods “honey; natural sweetener; sugar,” and have been disclaimed.3 See, e.g., In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009) (first word BINION’S in mark BINION’S ROADHOUSE was dominant portion of mark where ROADHOUSE was disclaimed). The dominant portion of the cited mark SWEET TREE SUSTAINABLE SWEETENERS is Applicant’s claimed mark SWEET TREE because that is the portion that would “make an impression upon purchasers that 3 Applicant offers a definition of “sustainable” from the MERRIAM-WEBSTER ONLINE DICTIONARY as “of, relating to, or being a method of harvesting or using a resource so that the resource is not depleted or permanently damaged,” 8 TTABVUE 11 (emphasis supplied by Applicant), and cites Section 1208.04 of the Trademark Trial and Appeal Board Manual of Procedure (June 2017) (“TBMP”) for the proposition that the Board may take judicial notice of dictionary definitions. 8 TTABVUE 11. The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed form or regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). We construe Applicant’s citation of TBMP § 1208.04 as a request that we take judicial notice of the cited definition of “sustainable,” and we grant that request. Serial No. 86692334 - 5 - would be remembered and relied upon to identify the goods . . . .” In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987). Applicant cites In re Shawnee Milling Co., 225 USPQ 747 (TTAB 1985), in arguing that “there is nothing in this case to presume confusion is likely just because the applied-for mark shares some common terms with the Cited Mark.” 8 TTABVUE 10. Shawnee Milling does not aid Applicant. In that case, the common terms between the applicant’s mark GOLDEN CRUST for flour and the cited mark ADOLPH’S GOLD’N CRUST for coating and seasoning were, “at the very least, highly suggestive of a desired result of use of the goods,” such that “the addition of the house mark ‘ADOLPH’S’ to registrant’s mark [was] sufficient to distinguish the marks as a whole . . . .” 225 USPQ at 749. Here, the common term between the marks is the source- identifier SWEET TREE, and the words SUSTAINABLE SWEETENERS appended to SWEET TREE in the cited mark are non-source identifying because, as Applicant acknowledges, they have “inherent significance with respect to the identified goods.” 8 TTABVUE 11. Applicant argues that the marks differ in appearance and sound because: Visually, the terms “sweet tree” are but two of four words and make up only nine of a total of thirty characters in the Cited Mark. When spoken, the two marks are even more dissimilar – the terms “sweet tree” are comparatively insignificant in the Cited Mark because they make up only two of the at least nine syllables that are formed in the phrase “sweet tree sustainable sweeteners.” 8 TTABVUE 11. These differences exist, but they are insufficient “to distinguish the marks as a whole.” Id. Both marks begin with the identical source-identifying words SWEET Serial No. 86692334 - 6 - TREE, and those words are not “comparatively insignificant in the Cited Mark” because the additional non-distinctive words and syllables in the cited mark do not identify the source of the registrant’s goods.4 Applicant also argues that the “structural differences between the marks are also key to the meaning and impression of the Cited Mark on consumers. Inclusion of the words ‘sustainable sweeteners’ cannot be overlooked because these words have additional, inherent significance with respect to the identified goods.” 8 TTABVUE 11. Applicant relies primarily upon In re DGR Assocs. LLC, 2013 WL 3191594, Application Serial No. 85143447 (TTAB June 7, 2013), a non-precedential decision,5 in claiming that “the Cited Mark clearly impresses on the consumer certain, specialized qualities that go to the means of production or manufacture of the identified goods.” 8 TTABVUE 12. DGR also does not aid Applicant. In that case, the Board found that the word DISRUPT in the marks DISRUPT for “organic environmental prophylactic and desiccant powder to prevent growth of microorganisms in food-animal and 4 Moreover, “users of language have a universal habit of shortening full names — from haste or laziness or just economy of words. Examples are: automobile to auto; telephone to phone; necktie to tie; gasoline service station to gas station.” In re Abcor Dev. Corp., 588 F.2d 511, 200 USPQ 215, 219 (CCPA 1978) (Rich, J., concurring). Companies are also “frequently called by shortened names, such as Penney’s for J.C. Penney’s, Sears for Sears and Roebuck (even before it officially changed its name to Sears alone), Ward’s for Montgomery Ward’s, and Bloomies for Bloomingdales.” Anthony’s Pizza & Pasta Int’l Inc. v. Anthony’s Pizza Holding Co., 95 USPQ2d 1271, 1280 (TTAB 2009) (quoting Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333 (TTAB 1992)). If the cited mark is shortened when verbalized to the source-identifying words SWEET TREE, it is identical in sound to Applicant’s mark. 5 Non-precedential decisions “are not binding on the Board, but may be cited for whatever persuasive weight to which they may be entitled.” TBMP § 101.04; see In re Fiat Grp. Mktg. & Corp. Commc’ns S.p.A., 109 USPQ2d 1593, 1596 n.6 (TTAB 2014). Serial No. 86692334 - 7 - companion-animal production facilities” and DISRUPT MICRO-FLAKE for insecticides and pesticides took on a different meaning in the latter mark, where it “suggest[ed] the method by which registrant’s goods inhibit insect infestations (by disrupting their mating patterns).” 2013 WL 3191594, at * 3, 10 TTABVUE 5. This gave the cited mark a “specialized meaning” that was “absent in applicant’s mark.” Id. Applicant argues that the “term ‘sweet,’ as found by itself in the applied-for mark, at best suggests qualities, like taste or flavoring, for the identified goods” but “fails to inject into the minds of consumers a type or level of specialization that is comparable with the Cited Mark, which includes the term ‘sustainable sweeteners,’ for use in connection with the identified goods.” 8 TTABVUE 12. The words common to the marks here are SWEET TREE, however, not SWEET alone, and the words “sustainable sweeteners” in the cited mark do not cause the term SWEET TREE to take on a different meaning when it appears in the cited mark. We do not disagree with Applicant that the words SUSTAINABLE SWEETENERS may cause the cited mark to connote “environmental consciousness in preparation of the product[s]” associated with the mark, 17 TTABVUE 6, but those words cannot and do not identify the source of those products.6 Because the shared term SWEET TREE identifies the source of the goods for which both marks are used, the marks are essentially identical in connotation and commercial impression, and we agree with 6 Because the words SUSTAINABLE SWEETENERS at the end of the cited mark are incapable of identifying source, we reject Applicant’s claim that “consumers are more likely to focus on the terms SUSTAINABLE SWEETENER, which arguably form the commercial impression of Registrant’s mark.” 17 TTABVUE 7. Serial No. 86692334 - 8 - the Examining Attorney that “the registrant’s additional descriptive wording ‘SUSTAINABLE SWEETENERS’ would likely be perceived as an extension and/or a new product” in the registrant’s line of goods. 10 TTABVUE 7. The cited mark contains the entirety of Applicant’s mark, and the additional non- distinctive matter in the cited mark is insufficient to differentiate it from Applicant’s mark. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). The similarity of the marks in connotation and commercial impression is the most significant means of comparison here, M.C.I. Foods Inc. v. Bunte, 96 USPQ2d 1544, 1550-51 (TTAB 2010), particularly given that the record shows no third-party use or registration of other SWEET- or TREE- formative marks for the subject goods that might dilute the distinctiveness of the shared term SWEET TREE. Cf. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671 (Fed. Cir. 2015). The nearly-identical meaning of the marks arising from the shared first term SWEET TREE outweighs the minor differences in their appearance and sound arising from the additional words in the cited marks. The marks are quite similar when considered in their entireties, and this du Pont factor supports a finding of a likelihood of confusion. B. Similarity of the Goods Our determination of the similarity of the goods is based upon the identifications of goods in the application and in the cited registration. Stone Lion, 110 USPQ2d at Serial No. 86692334 - 9 - 1162; Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). The goods do not have to be identical or even competitive for confusion to be likely because the relevant issue is not whether consumers would confuse the goods per se, but rather whether they would confuse their source. In re Davia, 110 USPQ2d 1810, 1818 (TTAB 2014). “The goods need only be sufficiently related that consumers would be likely to assume, upon encountering the goods under similar marks, that the goods originate from, are sponsored or authorized by, or are otherwise connected to the same source.” Id. at 1815 (citing Coach, 101 USPQ2d at 1722). The refusal to register may be affirmed as to the entirety of Class 30 in the application if there is a likelihood of confusion as to any of the identified goods in the class. See, e.g., Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). The Examining Attorney’s position on this du Pont factor is that where evidence shows that the goods at issue have complementary uses, and thus are often used together or otherwise purchased by the same purchasers for the same or related purposes, such goods have generally been found to be sufficiently related such that confusion would be likely if they are marketed under the same or similar marks. 10 TTABVUE 9. The Examining Attorney argues that “teas and honey are often used in combination” and that the record shows “how tea/tea-based beverages and sweeteners such as honey and sugar are often used together or otherwise purchased by the same purchasers for the same or related purposes.” 10 TTABVUE 9. We agree. The record shows the relatedness of teas and honey in several ways. We can take judicial notice that tea and honey are commonly consumed together, and the record Serial No. 86692334 - 10 - reflects “[s]uch complementary use[, which] has long been recognized as a relevant consideration in determining a likelihood of confusion.” In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1290 (Fed. Cir. 1984) (bread and cheese found to be related based in part upon conjoint use); see also Gen. Mills Inc. v. Fage Dairy Proc. Indus. SA, 100 USPQ2d 1584, 1598 (TTAB 2011) (evidence of consumption of yogurt and cereal together “clearly supports the complementary and competitive relationship” between those goods); In re Vienna Sausage Mfg. Co., 230 USPQ 799, 800 (TTAB 1986) (sausage and cheese found to be related due in part to conjoint use). The record contains evidence of the sale of honey specifically intended for use with tea: Serial No. 86692334 - 11 - September 15, 2015 Office Action at 18-20, 38. This “Tea Honey” is touted as “a perfect addition to make your cup of tea a little sweeter” and as being “formulated to create this subtle honey that will not overpower but complement tea.” The record also contains evidence of the sale of tea accompanied by honey and of the sale of honey-flavored tea: April 12, 2016 Office Action at 46-51. Serial No. 86692334 - 12 - September 15, 2015 Office Action at 40. April 12, 2016 Office Action at 33. Serial No. 86692334 - 13 - April 12, 2016 Office Action at 43. April 12, 2016 Office Action at 52. Second, the record shows “that a consumer would be likely to encounter one product while purchasing the other.” Davia, 110 USPQ2d at 1816. We reproduce Serial No. 86692334 - 14 - below webpages from the record that show (1) sellers of tea offering various forms of honey for consumption with tea, and (2) a seller of honey offering various forms of tea for consumption with honey: September 15, 2015 Office Action at 49. Serial No. 86692334 - 15 - April 12, 2016 Office Action at 14. April 12, 2016 Office Action at 11. April 12, 2016 Office Action at 2. This webpage offers “our estate-grown, loose leaf teas” that “are sourced to pair with our honeys and steeped in flavor and tradition.” Serial No. 86692334 - 16 - Finally, the record contains examples (in addition to the one shown immediately above) of tea and honey being sold under the same mark: Serial No. 86692334 - 17 - April 12, 2016 Office Action at 19, 21. Serial No. 86692334 - 18 - April 12, 2016 Office Action at 23, 25. Serial No. 86692334 - 19 - April 12, 2016 Office Action at 28-29. Applicant acknowledges that this evidence is probative of the complementary purchase and use of tea and honey, 8 TTABVUE 14-15, but argues that it “does not convincingly support the notion that the goods at issue are related enough that confusion is likely for these different marks.” 8 TTABVUE 14 (emphasis in original).7 Applicant offers two primary reasons why:8 (1) the evidence “fails to show any of the goods of [sic] the applied-for mark (namely, tea) sold in concert with goods having ‘sustainable’ qualities and characteristics as would be identified by the Cited Mark (namely, honey, natural sweeteners, or sugar),” and (2) “noticeably absent from the Office’s evidence are any third-party registrations that might backstop the assertion that ‘sustainable’ goods would emanate from the same, single source as the goods in [sic] the applied-for mark.” 8 TTABVUE 15. These arguments are unpersuasive. 7 Applicant argues that “a higher showing of relatedness in the goods is necessary in order to support a finding of a likelihood of confusion” because “the marks are clearly not identical and convey different commercial impressions when viewed in their entireties.” 8 TTABVUE 13. We have found above that the marks are quite similar, and “the greater the degree of similarity between applicant’s mark and the cited registered mark, the lesser the degree of similarity between the applicant’s goods or services and the registrant’s goods or services that is required to support a finding of likelihood of confusion.” In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001). 8 Applicant also argues generally that the Internet evidence fails to “connect the applicant’s goods with those listed in the registration,” 8 TTABVUE 15, again citing the non-precedential DGR decision. DGR again has no persuasive weight here because it did not involve household items like tea and honey, but rather “organic environmental prophylactic and desiccant powder to prevent growth of microorganisms in food-animal and companion-animal production facilities,” and “insecticides and pesticides for domestic and agricultural use impregnated with insect pheromones, attractants, repellants, and other active ingredients either alone or in combination, formulated in polymer laminates in micro-flake form suitable for aerial or ground spray application to control pest insects through disruption of mating, repellency, toxicity, or other effect, or a combination thereof.” The Board found that the Internet evidence in that case failed to show that those highly-specialized goods were related. Serial No. 86692334 - 20 - As noted above, Applicant cites a dictionary definition of the word “sustainable,” but does not show that the honeys displayed in the record are not produced using “a method of harvesting or using a resource so that the resource is not depleted or permanently damaged.” In any event, the Examining Attorney correctly notes that “the registrant’s goods are not identified as or limited to ‘sustainable’ honey, natural sweetener, and sugar.” 10 TTABVUE 12 (emphasis supplied by the Examining Attorney). Absent such a limitation, “it is presumed that in scope the identification of goods encompasses not only all the goods of the nature and type described therein, but that the identified goods are offered in all channels of trade that would be normal therefor, and that they would be purchased by all potential buyers thereof.” In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006). The registrant thus must be deemed to be selling all of the various forms of honey shown in the record (whether “sustainable” or not) under the registered mark.9 The absence of third-party registrations covering both tea and honey does not assist Applicant on the record here. Such registrations are, after all, simply a form of indirect evidence from which the Board may infer that the same marks are used for different goods. As the Board explained in In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993), Although third-party registrations are not evidence that the marks shown therein are in commercial use, or that the 9 Applicant suggests at one point in its main brief that the registrant is not even selling the goods identified in the registration or using the registered mark. 8 TTABVUE 8-9. These claims constitute a collateral attack on the cited registration, see generally TBMP § 1207.01(d)(iv), which we must disregard in view of the statutory presumptions accorded a subsisting Principal Register registration under § 7(b) of the Trademark Act. In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997). Serial No. 86692334 - 21 - public is familiar with them, nevertheless third-party registrations which individually cover a number of different items and which are based on use in commerce may have some probative value to the extent that they serve to suggest that the listed goods and/or services are of a type which may emanate from a single source. As shown above, the record contains direct evidence that tea and honey are the type of goods that may emanate from a single source under the same brand or house mark. Indirect evidence in the form of third-party registrations is not needed to “backstop” this direct evidence.10 The record shows that tea and honey are commonly used and sold together, and that they may emanate from the same source. This du Pont factor supports a finding of a likelihood of confusion. C. Similarity of Trade Channels The third du Pont factor considers “[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” Stone Lion, 110 USPQ2d at 1061. In considering this factor, we must “focus on the application and registration[] rather than on real- world conditions, because ‘the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application.’” Id. 10 Applicant cites another non-precedential case, In re Apollo Colors, Inc., 2005 WL 1787221, Application Serial No. 75942300 (TTAB July 7, 2005), in support of its argument regarding the absence of third-party registrations. 8 TTABVUE 15. Apollo Colors has no persuasive weight because it involved “color pigments for use in the graphic arts industry” and “dye stuffs and their intermediates, pigments and mordants for use in the manufacture of textile, leather and paper.” Id. at *1, 14 TTABVUE 1. The Board rejected both Internet evidence and third-party registrations in finding that those goods “are not ordinary consumer goods that might be displayed and sold together in the same retail stores; rather, they are highly specialized goods sold to sophisticated purchasers who are engaged in very different businesses.” Id. at *6. Tea and honey are ordinary consumer goods and the record shows that they are displayed and sold together to members of the general public. Serial No. 86692334 - 22 - at 1162 (quoting Octocom, 16 USPQ2d at 1787). Because there are no limitations or restrictions on the channels of trade for the goods identified as “teas” and “honey,” we must determine likelihood of confusion “‘on the basis of all normal and usual channels of trade and methods of distribution’” for those goods. In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1749 (Fed. Cir. 2017) (quoting SquirtCo. v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983)). The Examining Attorney argues, and Applicant does not dispute,11 that the record “illustrates that tea and tea-based beverages often emanate from and/or travel in the same channels of trade as sweeteners such as sugar and honey.” 10 TTABVUE 10. The record shows that the ordinary channels of trade for tea and honey include, at the very least, online specialty retailers, and their brick-and-mortar world stores.12 Teas are also sold through supermarkets and grocery stores, Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 223 USPQ 1281, 1282 (Fed. Cir. 1984), and we can infer, from the evidence of the sale of tea and honey together on the Internet, that honey is similarly sold in such outlets. Because the channels of trade for the subject goods overlap at least in part, this du Pont factor supports a finding of a likelihood of confusion. 11 Applicant does not address this du Pont factor in either of its briefs. 12 We can infer that the goods available on the online retailers’ websites are also available in any such outlets. The Teavana website, for example, displays a link that enables a visitor to “Find a Store” in which to buy the displayed goods. September 15, 2015 Office Action at 49. Serial No. 86692334 - 23 - D. Purchasers and Purchase Conditions The fourth du Pont factor considers the “conditions under which and buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” du Pont, 177 USPQ at 567. We must define the purchasers, and determine their degree of care, by reference to the goods identified in the application and cited registration, not through extrinsic evidence regarding the current nature of the goods. Stone Lion, 110 USPQ2d 1162-63. “Board precedent requires [our] decision to be based ‘on the least sophisticated potential purchasers.’” Id. at 1163 (quoting Gen. Mills, 100 USPQ2d at 1600). Applicant argues that with respect to “tea, the evidence is clear that consumers ‘are becoming more engaged with products as they find delight in the discovery of new and differentiated flavors, ethnic or new cultural offerings and craft selections,’”13 and that with respect to “honey” and “sugar” identified in the cited registration, the “record establishes that potential purchasers of [those] goods . . . are, in fact, deliberate and knowledgeable, enough so to understand the quality and character of goods to meet particular standards and certification.”14 These arguments are unavailing. The “teas” identified in the application, and the “honey” identified in the cited registration, are not limited to any particular types of such goods purchased by 13 8 TTABVUE 16 (quoting “The State of the U.S. Tea Industry 2015 Tea Market Review,” March 15, 2016 Response to Office Action at 15-18). 14 8 TTABVUE 16. Applicant cites a page from what it describes as “the registrants [sic] Web site at http://bigtree farms.com/collection/shop” made of record in Applicant’s March 15, 2016 Response to Office Action at 6-14. Serial No. 86692334 - 24 - knowledgeable or discriminating purchasers. Teas “are relatively inexpensive, comestible goods subject to frequent replacement” and “[p]urchasers of such products have been held to a lesser standard of purchasing care.” Specialty Brands, 223 USPQ at 1282.15 “It is reasonable to assume that ordinary purchasers of tea are not necessarily discriminating or knowledgeable about those products” and “[g]iven the inexpensive nature of many teas . . . ordinary purchasers would not necessarily be likely to exercise the high degree of care necessary to prevent confusion.” Tea Bd. of India v. The Republic of Tea, Inc., 80 USPQ2d 1881, 1897 (TTAB 2006)). Like teas, honeys “are relatively inexpensive items that would tend to be purchased without much care by members of the general public” and “[g]enerally, casual purchasers of low-cost, every-day consumer items exercise less care in their purchasing decisions and are more likely to be confused as to the source of the goods.” Davia, 110 USPQ2d at 1818.16 The least sophisticated potential purchasers of the goods at issue here are likely to exercise little care in purchasing them, and this du Pont factor supports a finding of a likelihood of confusion. Id. 15 Most of the teas and honeys in the record are offered at prices ranging from $10-$20. 16 Applicant cites Tricia Gould Assocs. Ltd. v. Crystal Clear Indus. Inc., 38 USPQ2d 1313, 1315 (TTAB 1995), another non-precedential decision, for the proposition that “the level of purchaser sophistication is important and often dispositive because sophisticated consumers may be expected to exercise greater care.” 8 TTABVUE 15-16. Tricia Gould has no persuasive weight because the goods here are not comparable to the upholstery, furnishing fabrics, wall coverings, and wall paper goods at issue in that case, which the Board characterized as “not the type of products that are purchased casually . . . .” Id. Serial No. 86692334 - 25 - Conclusion All of the relevant du Pont factors support a finding of a likelihood of confusion. The marks are very similar when considered in their entireties, tea and honey are closely-related goods that are sold and used together, the channels of trade and classes of customers overlap at least in part, and the least-sophisticated consumers of tea and honey are likely to exercise relatively little care in purchasing those goods. We find that confusion is likely to arise from the use of Applicant’s claimed mark in connection with the identified goods. Decision: The refusal to register is affirmed. Copy with citationCopy as parenthetical citation