7-Eleven, Inc.v.HEB Grocery Company, LP

Trademark Trial and Appeal Board

Jan 8, 2007

No. 91162178 (T.T.A.B. Jan. 8, 2007)

Mailed:
January 8, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

7-Eleven, Inc.
v.
HEB Grocery Company, LP
_____

Opposition No. 91162178
to application Serial No. 75800994
filed on September 16, 1999
_____

Diane G. Elder of Foley & Lardner, LLP for 7-Eleven, Inc.

Kirt S. O’Neill of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
for HEB Grocery Company, LP.
______

Before Quinn, Hairston and Kuhlke, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Applicant, HEB Grocery Company, LP, seeks registration
of the mark (in typed form)1 for goods
identified in the application as “frozen entrees consisting

1 Prior to November 2, 2003, standard character drawings were
known as typed drawings and typed drawings that are still pending
after November 2, 2003 are acceptable under the old rules. See
TMEP § 807.03(i).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Opposition No. 91162178
2
primarily of meat, fish, poultry or vegetables” in
International Class 29.2
Opposer, 7-Eleven, Inc., opposed registration of
applicant’s mark, on the grounds that, as applied to
applicant’s frozen entrees, the mark so
resembles opposer’s previously used and registered mark
for drinking water, as to be likely to cause
confusion, to cause mistake, or to deceive under Trademark
Act Section 2(d), 15 U.S.C. §1052(d).
Applicant filed an answer by which it denied the
salient allegations of the notice of opposition.
The evidence of record includes the pleadings; the file
of the opposed application; trial testimony, with related
exhibits, taken by each party; a status and title copy of
opposer’s pleaded Registration No. 1950904, status and title
copies of opposer’s other registrations, copies of opposer’s
trademark applications, copies of third-party registrations
and applicant’s registration, copies of articles from
various printed publications, and applicant’s responses to
discovery requests, all introduced by way of opposer’s
notices of reliance; and copies of applicant’s and third-

2 Serial No. 75800994, filed September 16, 1999 based on a bona
fide intention to use the mark in commerce under Trademark Act
Section 1(b). 15 U.S.C. §1051(b).

Opposition No. 91162178
3
party registrations, made of record by way of applicant’s
notice of reliance.3
Opposer’s pleaded registration is summarized as
follows:
Registration No. 1950904 for the mark

for “drinking water” in International Class 32,
filed December 30, 1994, issued January 23, 1996,
renewed, QUALITY disclaimed.

Because opposer has made its pleaded registration of
record and its claim is not frivolous, opposer has
established its standing to oppose registration of
applicant’s mark, and its priority is not in issue. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842
(Fed. Cir. 2000) and King Candy Co., Inc. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
Our likelihood of confusion determination under Section
2(d) is based on an analysis of all of the probative facts
in evidence that are relevant to the factors set forth in In
re E. I. du Pont de Nemours and Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973). See also, In re Majestic Distilling Co.,
Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
We begin our analysis with the first du Pont factor,
i.e., whether applicant’s mark and

3 Opposer’s motion, filed February 7, 2006, to substitute trial
exhibit labels is granted.
Opposition No. 91162178
4
opposer's mark are similar or dissimilar when
compared in their entireties in terms of appearance, sound,
connotation and commercial impression. We make this
determination in accordance with the following principles.
The test, under this du Pont factor, is not whether the
marks can be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently
similar in terms of their overall commercial impressions
that confusion as to the source of the goods offered under
the respective marks is likely to result. The focus is on
the recollection of the average purchaser, who normally
retains a general rather than a specific impression of
trademarks. See Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975).
We find that due to its visual prominence, the dominant
and distinguishing portion of opposer’s mark is the phrase
CLASSIC SELECTION which is essentially identical in sound,
appearance, connotation and commercial impression to
applicant’s CLASSIC SELECTIONS mark. The only difference is
the pluralization of the word SELECTIONS in applicant’s mark
and we do not find this to be a significant difference. See
Wilson v. Delauney, 245 F.2d 877, 114 USPQ 339, 341 (CCPA
1957). The fact that marks differ in appearance and sound
to the extent that one is the plural form of the other “does
Opposition No. 91162178
5
not amount to a material difference” in the marks. In re
Belgrade Shoe, 411 F.2d 1352, 162 USPQ 227, 227 (CCPA 1969);
and In re Pix of America, Inc., 225 USPQ 691, 692 (TTAB
1985) (the fact that one mark is in plural form is “almost
totally insignificant in terms of the likelihood of
confusion of purchasers.”).
Further, while we are mindful that the respective marks
must be considered in their entireties and that any
descriptive or other disclaimed matter therein cannot be
ignored, our principal reviewing court has indicated that,
in articulating reasons for reaching a conclusion on the
issue of likelihood 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, provided
[that] the ultimate conclusion rests on consideration of the
marks in their entireties.” In re National Data Corp., 753
F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). According to
the court, “[t]hat a particular feature is descriptive [or
otherwise lacking in distinctiveness]...with respect to the
involved goods or services is one commonly accepted
rationale for giving less weight to a portion of a mark...”
Id. Here, the word “QUALITY” in opposer’s mark has been
disclaimed as descriptive and, as such, is less significant
than the dominant and distinguishing phrase CLASSIC
SELECTION when the mark is considered as a whole. See In re
Opposition No. 91162178
6
Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001)
(disclaimed matter is often “less significant in creating
the marks’ commercial impression.”).4 In addition, the term
“QUALITY” appears in the mark in a much smaller size font,
which adds to the subordinate nature of the term in the
mark. Thus, while opposer’s mark includes additional
matter, consisting of the laudatory word “QUALITY” and the
design element of a banner and a rectangular outline,
overall the marks at issue are similar in sound, appearance,
connotation and commercial impression. Moreover, although
opposer’s mark depicts the identical wording with one word
on top of the other, applicant’s mark in typed form could
appear in any reasonable form of stylization and, in fact,
as shown by the evidence of record is presented in such a
format.
As to connotation, citing to the deposition of Robert
Kailing, one of applicant’s Business Unit Directors,
applicant argues as follows:
The term CLASSIC SELECTIONS on [applicant’s]
frozen food products means that the goods consist
of a variety or assortment of “classic” foods –
food items that consumers are familiar with – that

4 Applicant argues that the case In re Sunmarks, Inc., 32 USPQ2d
1470 (TTAB 1994) supports its position that the word QUALITY
should not be given less weight in this analysis, because QUALITY
is not generic as was the case with LUBE in the Sunmarks case and
QUALITY is “close in meaning to ULTRA, the term that the Board
gave the most weight to in the cited case.” Br. p. 10.
Applicant’s argument is not persuasive; we must look at the
relative prominence of the various elements of the marks before
us, and the relative importance of various elements of marks in
other cases is not relevant.
Opposition No. 91162178
7
are selected for a meal. [citing to Kailing Dep.
pp. 57-58]. Specifically, CLASSIC is “intended to
relay the meaning of something that is time
tested, and that you’re familiar with, and
comfortable with, and is important to you, and is
of high quality” [citing to Kailing Dep. p. 79]
and SELECTIONS is intended to convey the variety
of classic entrees that are available for
selection as a meal. [citing to Kailing Dep. p.
58].
The frozen entrees that are actually sold
under the mark CLASSIC SELECTIONS support this
interpretation. HEB’s CLASSIC SELECTIONS brand
includes classic food items such as lasagna,
chicken fettuccini alfredo, beef tips, macaroni
and cheese, pizza, and pork chops. These are all
classic food items because they are familiar to
consumers and remind them of their pasts...
While it is unclear what the terms CLASSIC
and SELECTION mean when they are used on bottled
water, it is clear that consumers will not
interpret [opposer’s] mark to mean that it sells
an assortment of time-tested, and familiar water.

Br. pp. 8-9.
Opposer in response argues that applicant’s “primary
basis for its position is that one of its business personnel
testified what ‘CLASSIC’ and ‘SELECTIONS’ individually were
intended to mean by applicant with respect to its products”
but “this self-serving testimony is insufficient to
establish what is conveyed to consumers by applicant’s use
of the combination of the two word term CLASSIC SELECTIONS”
and “regardless of applicant’s supposed intent, there is no
basis for concluding that consumers will understand
applicant’s mark to have any meaning other than that of the
English language term CLASSIC followed by SELECTIONS. In
other words, the same meaning as opposer’s mark.” Br. p. 4.
Opposition No. 91162178
8
While it may be that certain consumers will grasp
applicant’s intended effect when purchasing their macaroni
and cheese, it is not clear from this record that that is
actually the case and there is nothing in the record to
discount the possibility that applicant’s intended
connotation may be lost on at least some consumers. In such
circumstances, the connotation of the parties’ marks would
be identical.
Thus, we find that the similarities in the sound,
appearance, connotation and overall commercial impressions
of the parties’ marks outweigh their differences.
In arguing that no likelihood of confusion would result
by the concurrent use of these marks applicant contends that
the CLASSIC SELECTION portion of opposer’s mark is weak and
should be accorded very narrow protection. In support of
this argument applicant submitted examples of third-party
use and registrations of the terms CLASSIC, CLASSICS,
CLASSICO, SELECT, SELECTS, and SELECTIONS, in connection
with a variety of food items (the examples of use include
soup, cereal, sauces, spices, bread mix, frozen entrees,
sodas, olive oil, snack bars, cocoa, chocolate bars,
guacamole mix, cheese, sliced meats, pet food, cookie dough,
canned seafood; the registrations include mineral and
aerated waters, frozen prepared foods, bottled water, etc.)
Opposition No. 91162178
9
The existence of widespread third-party use under the
du Pont factors may serve to indicate the weakness of a term
in the context of its source identifying significance. Palm
Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir.
2005). In addition, the existence of a term in several
third-party registrations may indicate that a term has a
descriptive or suggestive significance which could minimize
its impact when the mark is viewed in its entirety. AMF
Inc. v. American League Products, Inc., 474 F.2d 1403, 1406,
177 USPQ 268, 269-70 (CCPA 1973). As opposer points out,
there are many duplicative examples in the record (e.g., the
Campbell Select soups), very few examples of the word
SELECTION(S), and most of the examples are for food products
other than the ones in issue here; all of which lessens the
probative value of the evidence. That being said, we cannot
disagree that the phrase CLASSIC SELECTION is composed of
commonly used terms on food and beverage products and that
individually these terms may have a suggestive meaning and,
thus, are weak. We take judicial notice of the following
dictionary definitions of CLASSIC and SELECTION:5
CLASSIC: adj. 1. c. Having lasting significance or
worth; enduring. e. Of a well-known type; typical
f. Formal, refined, and restrained in style;

5 University of Notre Dame du Lac v. J.C. Gourmet Food Imports
Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
Opposition No. 91162178
10
SELECTION: n. 1. a. The act or an instance of
selecting or the fact of having been selected. B.
One that is selected. 2. A carefully chosen or
representative collection of people or things.

The American Heritage Dictionary of the English Language
(4th ed. 2000).
Thus, the phrase CLASSIC SELECTION consists of a term,
CLASSIC, that has a laudatory attribute, and a term,
SELECTION, that indicates a product to be selected or a
“representative collection” of offerings. Therefore, even
when used together CLASSIC SELECTION is not a strong,
arbitrary mark, but rather is clearly in the category of
laudatory/suggestive.
However, there is no evidence of the terms used
together beginning with the word CLASSIC. Moreover,
although opposer’s evidence does not support a finding that
its mark is well known, there is nothing in the record to
rebut opposer’s evidence of substantial sales under its mark
during a period of over 12 years.6 Therefore, although the
individual terms may be weak in connection with food and
beverage products generally, in view of the third-party uses
and suggestive meanings, we find that the differences in the
parties’ marks are not sufficient to avoid a likelihood of

6 Opposer’s evidence consisting of excerpts from trade journals
that include references to its mark is of little probative value
as to the strength of opposer’s mark in the consumer’s mind.
Further, while opposer has enjoyed substantial sales over a
period of twelve years, these sales alone do not support a
Opposition No. 91162178
11
confusion when used on sufficiently related goods, where the
terms are similarly combined as they are in this case, and
there is no evidence of use of the combined terms. However,
we do not accord opposer’s mark the broad scope of
protection that would be given to a stronger, more arbitrary
mark.
We turn next to the second, third and fourth du Pont
factors, i.e., the similarities between opposer's and
applicant's goods, and the similarities between opposer's
and applicant's trade channels and classes of purchasers of
these goods. We must make our determinations under these
factors based on the goods as they are recited in the
application and registration, respectively. See In re
Elbaum, 211 USPQ 639 (TTAB 1981).
The goods need not be identical or directly competitive
in order for there to be a likelihood of confusion. Rather,
the respective goods need only be related in some manner or
the conditions surrounding their marketing be such that they
could be encountered by the same purchasers under
circumstances that could give rise to the mistaken belief
that the goods come from a common source. In re Martin's
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984).

finding that opposer’s mark is strong and deserving of broad
protection.
Opposition No. 91162178
12
Opposer’s Registration No. 1950904 is for “drinking
water.” Applicant’s goods are “frozen food entrees
consisting primarily of meat, fish, poultry or vegetables.”
These goods are obviously different in character; opposer’s
goods are a non-perishable beverage and applicant’s goods
are perishable frozen food items. The differences in the
goods are also reflected in how they are managed in the
retail food industry, specifically, they are separated into
different categories of goods and handled by different
personnel in view of the different functionality of the
goods and consumer’s shopping habits. See Douglas Woodward
(opposer’s Director of Package Beverage and Ice Cream) Dep.
pp. 5, 47; Kailing Dep. pp. 7, 47-48; and Kurt Schumacher
(opposer’s National Category Manager for dairy, frozen and
refrigerated products) Dep. pp. 40-42.
Opposer argues that they are related in that they are
complementary because they can be consumed together and are
both in the category of “convenience products.” Further,
opposer argues that the many examples of third-party use and
third-party registrations of frozen food and drinking water
under the same mark support a finding that consumers are
accustomed to purchasing drinking water and frozen foods
under the same mark and this relationship is further
strengthened by the close proximity of the parties’ goods in
stores and grocery store advertisements. Finally, opposer
Opposition No. 91162178
13
argues that frozen food entrees are within its zone of
expansion.
Opposer’s proposition that products that can be
consumed at the same time and are “convenience products” are
related is far too broad of an analysis upon which to
determine consumer perception. The facts of this case are
distinguished from In re Martin’s Famous Pastry Shoppe,
Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984),
where bread and cheese were considered complementary
inasmuch as they are often used in combination. While
drinking water may be consumed at the same time a heated
frozen food entree is eaten, it is not used in combination
with the entree in the same way bread and cheese are used
together to complement each other.
Third-party registrations may have some probative value
to the extent that they serve to suggest that the goods
listed therein are of the kinds which may emanate from a
single source. See In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993). However, all but three of
the third-party uses and registrations presented in this
record are store brands7 and thus are of little probative

7 Applicant provided the following testimony regarding “store
brands”:
Q. And tell us what’s meant by store brand or private
label.
A. It is a brand which is [sic] a retailer develops
to serve primarily three purposes in the business
motto. One of them is they – the product provides
Opposition No. 91162178
14
value inasmuch as, in addition to drinking water and frozen
entrees, they include a wide variety of goods, including,
for example, marshmallows, minced garlic, lemon juice,
rubber household gloves, baby shampoo, coffee filters, push
pins, canned seafood and carbonated soft drinks. See, e.g.,
Tr. Ex. Nos. 189, 20, and 19. These uses and registrations
cover a broad array of goods, many of which are wholly
unrelated, and, therefore, no conclusion can be drawn as to
the relationship between the goods in issue in this case.
See In re Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467, 1470
n. 6 (TTAB 1988) (“two of the four registrations which were
based on use were issued to Saks & Company and to Knott’s
Berry Farm, owners of a large department store and an
amusement or theme center, respectively, where a wide
variety of goods and services are sold”). As argued by
applicant “[b]ecause nearly every type of product sold in
modern grocery stores has a store brand alternative
available for purchase” giving such evidence probative value
would in effect create “a per se rule that all goods

better profitability than the national brand does.
That’s one of them. The second one would be unique
items that are proprietary to a particular retailer,
provide loyalty because you can only get it at that
store. And then kind of the third leg of the stool
would be that it allows you to have a retail that is
lower than the national brand or lower than someone
you compete with who doesn’t have that item.
Q. Is that often called value pricing?
A. In the tier for – in the tier of products that’s
designed to be lower retail, that’s – value pricing is
a good way to describe it.
Opposition No. 91162178
15
available in modern supermarkets are related.” Br. p. 16.
While opposer and applicant are both retail stores and there
are examples in the record of their own store brands used on
a variety of goods, including frozen food and drinking
water, this does not transform the probative value of the
third-party uses or alter our analysis; we must determine if
consumers would believe that goods as diverse as drinking
water and frozen food entrees would emanate from a single
source. We further note that the record shows that store
brands are sold only in the brand owner’s stores or
affiliated stores. Opposer’s registration and the subject
application, however, are not so limited and are more in the
nature of a “national brand,” a brand sold in unaffiliated
stores, thus the third-party uses and registrations of store
brands do not serve to resolve the question of whether
consumers would believe that a purveyor of drinking water
also sells frozen food entrees.
As to the three examples of national brands, two do not
show use on frozen entrees (Dannon for drinking water and
yogurt and ODWALLA for drinking water and snack bars) and
the third, NESTLE, is of little probative value inasmuch as,
while NESTLE is used as the primary mark on the drinking
water, the use of NESTLE on the frozen entree is secondary,
appearing on the side of the packaging with the primary mark

Kailing Dep. pp. 13-14.
Opposition No. 91162178
16
STOUFFER’S displayed prominently on the front. In fact,
opposer’s corporate representative Kurt Schumacher testified
that he was not aware of any national brand that is used on
both frozen entrees and bottled water. Schumacher Dep. pp.
62-63.
As to opposer’s zone of expansion argument, the
doctrine of natural expansion was clearly set out in Mason
Engineering and Design Corporation v. Mateson Chemical
Corporation, 225 USPQ 956, 962 (TTAB 1985), as follows
(footnotes omitted):
Under the doctrine of natural expansion, the
first user of a mark in connection with particular
goods or services possesses superior rights in the
mark not only as against subsequent users of the
same or similar mark for the same or similar goods
or services, but also as against subsequent users
of the same or similar mark for any goods or
services which purchasers might reasonably expect
to emanate from it in the normal expansion of its
business under the mark. See the May Department
Stores Co. v. Prince, 200 USPQ 803 (TTAB 1978).
This is so whether or not the first user of the
mark has actually expanded its use of its mark,
after the commencement of the subsequent user’s
use, to goods or services which are the same as or
closely related to those of the subsequent user.
See Sheller-Glob Co. v. Scott Paper Co., 204 USPQ
329 (TTAB 1979). The application of the doctrine
is strictly limited to those cases where the
expansion, whether actual or potential, is
“natural,” that is, where the goods or services of
the subsequent user on the one hand and the goods
or services as to which the first user has prior
use, on the other, are of such nature that
purchasers would generally expect them to emanate
from the same source. See J. Wiss & Sons Co. v.
The W.E. Bassett Co., 462 F2d 567, 174 USPQ 331
(CCPA 1972). The reason for the limitation is
that the prior user of a mark on particular goods
or services cannot extend its use of the mark to
Opposition No. 91162178
17
distinctly different goods or services if the
result could be a conflict with valuable
intervening rights established by another through
extensive use and/or registration of the same or
similar mark for the same or closely related goods
or services in the new sphere of trade.
[citations omitted] Among the factors to be
considered in determining whether an expansion,
either actual or potential, is natural are: (1)
whether the second area of business (that is, the
subsequent user’s area of business, into which the
first user has or potentially may expand) is a
distinct departure from the first area of business
(of the prior user), thereby requiring a new
technology or know-how, or whether it is merely an
extension of the technology involved in the first
area of business; (2) the nature and purpose of
the goods or services in each area; (3) whether
the channels of trade and classes of customers for
the two areas of business are the same, so that
the goodwill established by the prior user in its
first area of business would carry over into the
second area; and (4) whether other companies have
expanded from one area to the other. See Central
Soya Co., Inc. v. North American Plant Breeders,
212 USPQ 37 (TTAB 1981), and Porta-Tool, Inc. v.
DND Corp., 196 USPQ 643 (TTAB 1977). Finally, the
determination of whether an expansion is or would
be natural must be made on the basis of the
circumstances prevailing at the time when the
subsequent user first began to do business under
its mark, i.e., what was “natural” in the relevant
trade at that time. See Viking Boat Co., Inc. v.
Viking Camper Supply, Inc., 191 USPQ 297 (TTAB
1976).

Under these guidelines opposer’s expansion of its use
of another of its marks from ready-to-eat taquitos to frozen
taquitos or its use of the QUALITY CLASSIC SELECTION mark on
other items (soft drinks, processed nuts, cookies, bathroom
tissue, paper napkins and paper towels) does not support a
finding that frozen food entrees would be perceived by
Opposition No. 91162178
18
consumers as falling within the natural zone of expansion of
drinking water.
In view of the above, we cannot say that on this record
frozen food entrees are related to or within the natural
expansion of drinking water in the consumer’s mind.
With regard to the channels of trade and potential
purchasers, because the registration and application are not
limited we presume these goods travel in all ordinary
channels of trade and the record establishes that drinking
water and frozen food entrees are found in the same stores,
including grocery stores and convenience stores. However,
as has long been held, the presence of goods in the same
store does not necessarily lead to the conclusion that
confusion would arise under such conditions. Interstate
Brands Corp. v. Celestial Seasonings Inc., 576 F.2d 926, 198
USPQ 151, 153 (CCPA 1978); Hi-Country Foods Corp. v. Hi
Country Beef Jerky, 4 USPQ2d 1169 (TTAB 1981). As the Court
stated in Federated Foods, Inc. v. Fort Howard Paper
Company, 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976):
A wide variety of products, not only from
different manufacturers within an industry but
also from diverse industries, have been brought
together in the modern supermarket for the
convenience of the customer. The mere existence
of such an environment would not foreclose further
inquiry into the likelihood of confusion arising
from the use of similar marks on any goods so
displayed. [citation omitted] The means of
distribution and sale, although certainly
relevant, are areas of peripheral inquiry. The
fundamental inquiry mandated by §2(d) goes to the
Opposition No. 91162178
19
cumulative effect of differences in the essential
characteristics of the goods and differences in
the marks.

The record shows that frozen foods and drinking water
are sometimes sold in close proximity; however, as applicant
points out, charcoal and anti-freeze are also sold in close
proximity to drinking water and frozen foods in many
convenience stores which is simply due to a matter of
limited space. Moreover, there is also testimony that
unrefrigerated drinking water and frozen foods are
positioned separately in grocery stores because water is not
a perishable item in contrast to frozen food and does not
have to be refrigerated. See Kailing Dep. pp. 49-50. We
find that the marketing conditions do not compel a finding
of likelihood of confusion given the inherent differences
between these goods. In a similar manner, opposer’s
evidence of drinking water and frozen foods depicted on the
same newspaper advertising pages is not compelling given
that candy and laundry detergent are also advertised on the
same pages.
While the consumers of the parties’ respective goods
are the same and these are relatively inexpensive ordinary
consumer items, which would be purchased with a lesser
degree of care, this factor does not outweigh the inherent
differences in the goods.
Opposition No. 91162178
20
Finally, applicant argues that there has been no actual
confusion, however, the evidence does not show whether the
goods here have been sold under the marks in issue in the
parties’ overlapping territories. Moreover, the parties’
respective goods have only been sold in their respective
stores. Thus, we find this factor neutral.
After a careful analysis of the relevant du Pont
factors we conclude that in view of the disparity in the
parties’ goods and the relative weakness of the marks, no
confusion is likely with the contemporaneous use of these
marks on these goods.
Decision: The opposition is dismissed.