Applied Biosciences Corp.

Trademark Trial and Appeal Board

May 22, 2001

No. 75411268 (T.T.A.B. May. 22, 2001)

5/22/01
Paper No. 9
TEH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Applied Biosciences Corporation
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Serial No. 75/411,268
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James E. Clevenger for Applied Biosciences Corporation.
Barney L. Charlon, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
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Before Simms, Cissel and Holtzman, Administrative Trademark
Judges.
Opinion by Holtzman, Administrative Trademark Judge:
An application has been filed by Applied Biosciences
Corporation to register the mark EARTH PLUS for "fertilizer and
soil activator for agricultural use."1
The Trademark Examining Attorney has refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant's mark, when used in connection with applicant's goods,
1 Application Serial No. 75/411,268, filed December 29, 1997; alleging
dates of first use on April 14, 1997. The word "EARTH" has been
disclaimed.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/411,268
2
so resembles the following registered mark for "chemicals-namely,
fertilizers and soil conditioners" as to be likely to cause
confusion.2
When the refusal was made final, applicant appealed. Briefs
have been filed. An oral hearing was not requested.
In any likelihood of confusion analysis, we look to the
factors set forth in In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973), giving particular attention
to the factors most relevant to the case at hand, including the
similarity of the marks and the relatedness of the goods or
services. See In re Azteca Restaurant Enterprises Inc., 50
USPQ2d 1209 (TTAB 1999) and In re L.C. Licensing Inc., 49 USPQ2d
1379 (TTAB 1998).
The Examining Attorney argues that applicant's goods
(fertilizer) and registrant's goods (chemical fertilizer) are
"virtually identical" (Office action no. 1, p. 2.) and as such
must be deemed to travel in the same channels of trade to the
same classes of purchasers.
2 Registration No. 1,251,959; issued September 27, 1983; combined
Sections 8 & 15 affidavit filed.
Ser. No. 75/411,268
3
Applicant, on the other hand, states that the goods sold
under its mark are not chemicals, but instead are "a liquid
organic compound comprising seaweed, humic acid and hydrolized
proteins," and moreover that the composition of the goods is
clearly stated on the containers for the goods. While admitting
that "the goods are related, in that they ...are both used as
fertilizer..." applicant maintains that, given the different
composition of the two products, the goods are not "virtually
identical."
First, it is not necessary that the goods be identical or
even competitive to support a finding of likelihood of confusion.
The question is not whether purchasers can differentiate the
goods themselves, but rather whether purchasers are likely to
confuse the source of the goods. See Helene Curtis Industries
Inc. v. Suave Shoe Corp., 13 USPQ2d 1618 (TTAB 1989). Thus, it
is sufficient if the respective goods are related in some manner
and/or that the conditions surrounding their marketing are such
that they would be encountered by the same persons under
circumstances that could, because of the similarity of the marks
used thereon, give rise to the mistaken belief that they emanate
from or are associated with, the same source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
In this case, however, since registrant's chemical
fertilizers are fully encompassed by applicant's broadly
Ser. No. 75/411,268
4
described fertilizers for agricultural use, the goods must be
considered legally identical, directly competitive products.
Applicant's attempt to distinguish its fertilizers from those of
registrant based on the different compositions of the products is
unavailing.3 As the Examining Attorney points out, the question
of likelihood of confusion is determined on the basis of the
goods as identified in the application and registration without
restrictions on the goods that are not reflected therein. See J
& J Snack Foods Corp. v. McDonald's Corp., 932 F.2d 1460, 1464,
18 USPQ2d 1889, 1892 (Fed. Cir. 1991) and Saks & Co. v. Snack
Food Association, 12 USPQ2d 1833 (TTAB 1989). While registrant's
goods, as identified, are restricted to chemical fertilizers,
there is no such restriction in the application as to the nature
or composition of applicant's fertilizers. In the absence of any
such restrictions in the application, it must be presumed that
applicant's goods encompass fertilizers of all types, including
3 Applicant states in its brief that "[a]s noted [in] the applicant's
amendment filed in response to the first Office Action, applicant's
goods are a liquid organic compound comprising seaweed, humic acid and
hydrolozed proteins." (Emphasis added). We take the word "amendment"
in that statement to refer, generally, to applicant's response to the
Office action since at no time during the prosecution of this case did
applicant request any such amendment to the identification of goods.
Ser. No. 75/411,268
5
chemical fertilizers.4 Similarly, since there are no
restrictions in the registration as to use, channels of trade or
classes of customers for registrant's fertilizers, it is
reasonable to assume that registrant's fertilizers are used for
all purposes including agricultural purposes and that the trade
channels and classes of purchasers for the respective goods are
the same.
We agree with applicant that the overlapping customers for
the respective goods would be relatively careful and
knowledgeable purchasers. However, even knowledgeable buyers of
commercial goods are not immune from source confusion,
particularly under circumstances where identical goods are sold
to those purchasers under similar marks. See, e.g., Weiss
Associates Inc. v. HRL Associates Inc., 902 F.2d 1547, 14 USPQ2d
1840 (Fed. Cir. 1990).
Thus we turn our attention to the marks, keeping in mind
that when marks would appear on identical or closely related
goods, the degree of similarity between the marks necessary to
support a finding of likely confusion declines. Century 21 Real
4 In any event, the Examining Attorney has submitted a number of third-
party registrations which show, in each instance, a mark which is
registered for both organic and inorganic fertilizers. This evidence
tends to show that purchasers would expect fertilizers such as those of
applicant and registrant to emanate from the same source. See, e.g.,
In re Albert Trostel & Sons Co., supra at 1785-86. Thus, even taking
into account the different compositions of the products, they would
nonetheless be considered closely related.
Ser. No. 75/411,268
6
Estate v. Century Life, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir.
1992).
We find that applicant's mark EARTH PLUS and registrant's
stylized mark EARTHLIFE PLUS are similar in sound, appearance and
meaning. Applicant's mark incorporates two significant elements
of the registered mark, the words EARTH and PLUS, and those words
appear in applicant's mark in the same sequence as registrant's
mark. As applicant points out, there are differences in the two
marks. The one-syllable word LIFE appears in the middle of EARTH
and PLUS in registrant's mark and registrant's mark is depicted
in a slightly stylized form.
However, bearing in mind that the comparison of the marks is
not made on a side-by-side basis and that recall of purchasers is
often hazy and imperfect, these differences are not so
significant as to eliminate the likelihood of confusion.
The stylization of registrant's mark results only in a
modest visual difference in the marks which, if it is remembered
at all, is clearly not sufficient to distinguish one mark from
another. In addition, applicant's mark, presented in typed form,
is not restricted to any particular style of lettering, and thus
may be used by applicant in the same stylization used by
registrant. See Squirtco v. Tomy corporation, 697 F.2d 1038, 216
USPQ 937 (Fed. Cir. 1983).
Ser. No. 75/411,268
7
Moreover, it has been held that the addition of another word
to one of two otherwise similar marks will not necessarily serve
to avoid a likelihood of confusion, particularly where additional
word does not significantly change the meaning the terms convey.
See, e.g., Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d
1735 (TTAB 1991), affirmed in unpublished opinion, Appeal No. 92-
1086 (Fed. Cir. June 5, 1992); In re Christian Dior, S.A., 225
USPQ 533 (TTAB 1985) and In re Cosvetic Laboratories, Inc., 202
USPQ 842 (TTAB 1979). The combined term EARTHLIFE, particularly
when considered in the context of fertilizers, only slightly
alters the meaning conveyed by the word EARTH alone, the latter
term suggesting the soil itself and the former suggesting a
related concept of giving life to the soil. Purchasers familiar
with applicant's EARTH PLUS, upon seeing registrant's mark
EARTHLIFE PLUS on virtually identical goods, are likely to be
confused inasmuch as both marks have a similar connotation.
Finally, we note that while EARTHLIFE PLUS may be suggestive
of the identified goods, there is no evidence of third-party
registrations or uses of similar marks in the relevant market or
any other evidence in the record to support applicant's claim
that registrant's mark is weak and entitled to only a narrow
scope of protection.
We conclude that applicant's mark EARTH PLUS for fertilizers
for agricultural use is likely to cause confusion with
Ser. No. 75/411,268
8
registrant's similar mark EARTHLIFE PLUS in stylized form for
essentially identical goods.5
Decision: The refusal to register is affirmed.
5 We note that applicant has relied on the facts of a number of
different cases to support its position that the marks herein are not
likely to cause confusion. While those cases may provide some guidance
in determining whether a particular designation is registrable, they
are not factually analogous to the present case and, thus, do not
require us to find that the present mark is registrable.