Wente Bros.

Trademark Trial and Appeal Board

Jan 27, 2010

No. 77290346 (T.T.A.B. Jan. 27, 2010)

Mailed:
January 27, 2010
jtw

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Wente Bros.
________

Serial No. 77290346
_______

Edward S. Wright of the Law Offices of Edward S. Wright for
Wente Bros.

James T. Griffin, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
_______

Before Quinn, Hairston and Walsh, Administrative Trademark
Judges.

Opinion by Walsh, Administrative Trademark Judge:

Wente Bros. (applicant) has applied to register the
mark SYRENITY in standard characters on the Principal
Register for goods identified as “wine” in International
Class 33.1

1 Application Serial No. 77290346, filed September 27, 2007,
based on a statement of a bona fide intention to use the mark in
commerce under Trademark Act Section 1(b), 15 U.S.C. § 1051(b).

THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 77290346
2
The Examining Attorney has issued a final refusal
under Trademark Act Section 2(d), 15 U.S.C. 1052(d), on the
grounds that applicant’s mark is likely to be confused with
the mark SEREINITÉ in standard characters in Registration
No. 3408595 for goods identified as “wines” in
International Class 33. The registration issued on April
8, 2008. The registration claims first use of the mark
anywhere and first use of the mark in commerce on May 21,
2007.
Applicant has appealed. Applicant and the Examining
Attorney have filed briefs. We affirm.
Section 2(d) of the Trademark Act precludes
registration of an applicant’s mark “which so resembles a
mark registered in the Patent and Trademark Office… as to
be likely, when used on or in connection with the goods of
the applicant, to cause confusion….” 15 U.S.C. § 1052(d).
The opinion in In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1977) sets forth the
factors to consider in determining likelihood of confusion.
Here, as is often the case, the crucial factors are the
similarity of the marks and the similarity of the goods in
the application and the cited registration. Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976)(“The fundamental inquiry mandated
Serial No. 77290346
3
by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods
and differences in the marks.”).
In this case the goods are identical; applicant has
not argued otherwise. Furthermore, we note that, “the
degree of similarity [between the marks] necessary to
support the conclusion of likely confusion declines” when
the goods are identical. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701
(Fed. Cir. 1992), cert. denied, 506 U.S. 1034 (1992). In
addition, we note that the goods, as identified in both the
application and cited registration, without any
restrictions, necessarily encompass wines at various price
points. Consequently, the goods include relatively
inexpensive wines which may be purchased by the public with
a modest degree of care.
In comparing the marks we must consider the
appearance, sound, connotation and commercial impression of
the marks at issue. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005).
Applicant argues that the marks differ in all
respects, appearance, sound, connotation and commercial
impression. More specifically, applicant argues that there
Serial No. 77290346
4
are obvious differences in appearance based on the
differences in the letters in the respective marks.
Applicant argues further that the cited mark, SEREINITÉ, is
derived from the name of the Serein River which flows
through the Chablis region. Applicant also asserts that
“Serein” would be pronounced “suh-ran’.” Applicant notes
the use of “Chablis” as an appellation applied to wines
from the corresponding region of France. Applicant also
notes that “serien” is a French common noun meaning a “fine
mist or evening dew.”
Applicant bases these assertions on fact sheets
concerning the registrant’s products obtained from the
registrant’s web site and from federal Certificate of Label
Approval documents, both of which applicant made of record.
Applicant argues further that SEREINITÉ is pronounced “suh-
ran’-i-tay’.”
As to its own mark, SYRENITY, applicant argues that it
is “… a combination of the words ‘Syrah’ (a type of red
wine) and ‘serenity’ and it means peace and serenity
through wine.” Applicant’s Brief at 2. Applicant also
asserts, “It is pronounced sa-‘re-natē, similar to
‘serenity’.” Id. Applicant concludes by arguing, “Thus,
in addition to differing both in appearance and sound,
Serial No. 77290346
5
SYRENITY also has an entirely different commercial
impression than SEREINITÉ.” Id.
On the other hand, the Examining Attorney argues, “The
marks of the parties are confusingly similar. Both
SYRENITY and SEREINITÉ are misspellings and phonetic
equivalents of the word ‘serenity.’” Examining Attorney’s
Brief at 3. The Examining Attorney argues further that
there is no correct pronunciation of a trademark and that
it is impossible to predict how the public will pronounce a
particular trademark. The Examining Attorney also argues
that the respective marks will project similar commercial
impressions because they both would be perceived as
equivalents of serenity.
We conclude that the marks are confusingly similar, in
particular, when we consider the facts that the goods of
the parties are identical and that the goods include
relatively inexpensive items purchased by the general
public. While there are differences in appearance between
the marks, there are also similarities, including the same
beginning letters and other common letters. More
importantly, as the Examining Attorney argues, we find it
credible that each would be perceived as a misspelling of
“serenity.” Also, it is axiomatic that there is no correct
Serial No. 77290346
6
pronunciation of a mark. In re Great Lakes Canning, Inc.,
227 USPQ 483, 484 (TTAB 1985).
Also, the specific pronunciations applicant posits for
each of the marks appear to presume use of each only on a
specific type of wine, Chablis and Syrah respectively.
However, neither identification is limited to use of the
mark on a specific type of wine. Therefore, we must
presume that both marks could be used on any type of wine.
Also, as to the cited registration, we cannot consider
extraneous evidence, such as the fact sheets applicant
submitted here, to limit the scope of the goods covered by
the registration. In re Bercut-Vandervoort & Co., 229 USPQ
763 (TTAB 1986).
Accordingly, we conclude that the marks are similar in
appearance and sound.
As to the connotation and commercial impression, we
likewise conclude that the connotation and commercial
impression projected by each of the marks is similar based
on the likely perception of both as a misspelling of
“serenity.”
We find it unlikely that potential purchasers of the
goods would perceive the derivations of the registered mark
applicant suggests. We agree with the Examining Attorney
that it is unlikely that potential purchasers of these
Serial No. 77290346
7
goods would perceive the connection between the mark and
the French river name or common noun embedded in the mark.
Applicant concedes that its own mark would project
“serenity” as a connotation and commercial impression.
Accordingly, we conclude that each of the marks would
project a connotation and commercial impression related to
serenity.
Finally, after considering all evidence and arguments
bearing on the du Pont factors, we conclude that there is a
likelihood of confusion between applicant’s SYRENITY mark
when used in connection with “wine” and the cited SEREINITÉ
mark when used in connection with “wines.”
Decision: We affirm the refusal under Trademark Act
Section 2(d).