Sweet Tree Holdings 1, LLC

Trademark Trial and Appeal Board

Oct 5, 2017

No. 86692334 (T.T.A.B. Oct. 5, 2017)

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.