A & J Cheese Co., Inc.

Trademark Trial and Appeal Board

May 24, 2001

No. 75596082 (T.T.A.B. May. 24, 2001)

5/24/01
Paper No. 9
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re A & J Cheese Company, Inc.
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Serial No. 75/596,082
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Lena A. Basile of Sheldon & Mak, Inc. for A & J Cheese
Company, Inc.
Rebecca Gilbert, Trademark Examining Attorney, Law Office
113 (Meryl Hershkowitz, Managing Attorney).
_______
Before Seeherman, Quinn and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
A & J Cheese Company, Inc. (applicant) has filed an
application to register the mark A & J CHEESE CO. and
design, as shown below, for services ultimately identified
as “merchandise packaging, wholesale stores and
distributorship services, all in the field of and featuring
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/596,082
2
food products, namely cheese and cheese products” in
International Class 35.1:
The Examining Attorney has refused to register
applicant’s mark under Section 2(d) of the Trademark Act
because of the registration of the mark shown below for
“wholesale agricultural products, namely, fresh fruits and
vegetables” in International Class 31.2
The mark consists of the letters A & J and representations
of apples and grapes, which are disclaimed. It is lined
for the colors yellow, red and green.
1 Serial No. 75/596,082 filed on November 27, 1998, alleging a
date of first use of April 1993 and a date of first use in
commerce of April 1995.
2 Registration No. 1,738,555 issued December 8, 1992. Section 8
and 15 affidavits have been accepted or acknowledged.
Ser No. 75/596,082
3
After the Examining Attorney made the refusal final,
this appeal followed. Both applicant and the Examining
Attorney filed briefs. An oral hearing was not requested.
We reverse.
The Examining Attorney argues that:
The term A & J is the dominant feature and focal point
of each of the marks. Moreover, in each of the marks
A & J is set at a nearly identical top to bottom angle
and appears in highly similar fonts. Accordingly, the
commercial impressions conveyed by the two marks are
highly similar.
Examining Attorney’s Appeal Brief, p. 4.
The Examining Attorney also argues that the goods and
services are highly related. She relies on ten third-party
registrations to show that many companies have adopted the
same mark in connection with their cheese products and
fruits and vegetables. She also points out that
applicant’s specimens show that it sells canned fruits and
vegetables. Because the Examining Attorney believed that
the dominant feature of the marks were identical and the
goods were related, she maintained the refusal to register.
Applicant argues that the marks are strikingly
different. In addition to the common feature, “A & J,”
applicant’s mark includes the words “Cheese Co.” and a
wreath design. The registrant’s mark contains no
additional wording, but it has a three-color fruit design.
Ser No. 75/596,082
4
While applicant admits that the goods are both food
products, it maintains that cheese and fruits and
vegetables are sold in different stores or in different
sections of supermarkets, and the goods are, therefore,
dissimilar.3
In a case involving a refusal under Section 2(d), we
analyze the facts as they relate to the relevant factors
set out in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 1361, 177 USPQ 563, 567 (CCPA 1973). In considering
the evidence of record on these factors, we must keep in
mind that “[t]he 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.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
The first question we address is whether applicant’s
and registrant’s marks, when compared in their entireties,
are similar in sound, appearance or meaning such that they
create similar overall commercial impressions.
Regarding the marks, we find that their overall
commercial impression is dissimilar. The only point of
3 With its Appeal Brief, applicant, for the first time, attaches
copies of trademark registrations to support its arguments. The
Examining Attorney has objected to this untimely evidence, and we
will not consider it. 37 CFR 2.142(d).
Ser No. 75/596,082
5
commonality is the letters “A & J.” Visually, the marks
are very different, with the designs playing a significant
role in each mark.
While we assume that the letters in registrant’s mark are
more prominently displayed in actual use, they do not
dominate the mark as words and letters often do.
Even if the marks were similar, the goods and services
are not closely related. To determine whether the goods
are related, we look to the identification of goods and
services in the application and registration. In re Dixie
Restaurants, 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir.
1997). We start with the principle that there is no per se
rule that all or virtually all food products are related.
Martin’s Famous Pastry, 221 USPQ 364, 365 (TTAB 1984),
aff’d, 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Second, the goods in this case are not simply cheese and
fresh fruit, which would be expected to be sold to retail
consumers in grocery stores. Applicant is seeking
registration of its mark for merchandise packaging,
Ser No. 75/596,082
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wholesale stores and distributorship services, all in the
field of and featuring food products, namely cheese and
cheese products. Registrant’s goods, on the other hand,
are wholesale agricultural products, namely, fresh fruits
and vegetables, and therefore, they would not be purchased
by the public at large.
To show the relatedness of these goods and services,
the Examining Attorney submitted copies of ten third-party
registrations. None of these registrations shows that
wholesale agricultural products, namely, fresh fruits and
vegetables and merchandise packaging, wholesale stores, and
distributorship services in the field of cheese and cheese
products emanate from the same source. Even concerning the
general question of whether cheese and fresh fruits and
vegetables would be expected to come from the same source,
the evidence is not persuasive. Three of the registrations
are essentially duplicates of other referenced
registrations, with minor variations in the marks (Reg.
Nos. 2,290,812/2,180,085; 2,262,556/2,262,555; and
1,500,088/1,500,087). Of the seven remaining non-duplicate
registrations, one is for a grocery store (Reg. No.
914,871) and two are for house marks (Reg. No. 1,500,088
and 2,092,512). The fact that cheese and vegetables are
listed in these registrations along with such items as
Ser No. 75/596,082
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laundry detergent, cutlery, and book matches does not
demonstrate the relatedness of the applicant’s and
registrant’s goods and services.
Another registration (Reg. No. 2,117,836) involves a
retail shop selling trays of fresh pasta, fresh sauce,
cheeses, dry goods, canned vegetables, and packaged
vegetables. One is for a restaurant (Reg. No. 2,290,812)
and another (Reg. No. 2,147,518) involves wholesale
distributorship services including, inter alia, cheese and
breaded vegetable products, namely, onion rings and
peppers.
In addition, applicant’s catalog, which identifies
certain non-cheese items that applicant is selling, does
not establish that wholesale fruits and vegetables are
related to applicant’s services.
With this evidence, we would have little basis to
conclude, even if this were the issue, that cheese and
fresh fruits and vegetables would be expected to come from
the same source. In this case, we are mindful that the
goods and services are not simply cheese and fruits and
vegetables, but rather wholesale agricultural products,
namely, fresh fruits and vegetables and merchandise
packaging, wholesale stores and distributorship services
involving cheese and cheese products. Thus, we do not have
Ser No. 75/596,082
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ordinary consumers making impulse purchases in a grocery
store. Instead, purchasers of applicant’s cheese-related
merchandise packaging, wholesale store and distributorship
services and registrant’s wholesale fruits and vegetables
would likely be more careful, and even sophisticated,
purchasers. This factor would make the likelihood of
confusion more remote. In re Mars, Inc., 741 F.2d 395, 222
USPQ 938 (Fed. Cir. 1984) (No likelihood of confusion when
the marks for the identical word CANYON were used on candy
bars and fresh citrus fruits). Here, where the goods and
services are distinct and the marks are not legally
identical, we conclude that there is no likelihood of
confusion.
Decision: The refusal to register is reversed.