Arrowhead Mills, Inc.v.Good Health Natural Foods, Inc.

Trademark Trial and Appeal Board

Apr 30, 2004

No. 91118502 (T.T.A.B. Apr. 30, 2004)

Paper No. 20
TJQ
Mailed:4/30/04
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Arrowhead Mills, Inc.
v.
Good Health Natural Foods, Inc.
_____
Opposition No. 91118502
to application Serial No. 75488382
filed on May 20, 1998
_____
David W. Opderbeck of McCarter & English for Arrowhead
Mills, Inc.
Eric D. Paulsrud of Leonard, Street and Deinard for Good
Health Natural Foods, Inc.
______
Before Quinn, Bucher and Holtzman, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application was filed by Good Health Natural Foods,
Inc. to register the mark GARDEN CHIPS (“CHIPS” disclaimed)
for “vegetable-based snack foods.”1
Registration was opposed by Arrowhead Mills, Inc. under
1 Application Serial No. 75488382, filed May 20, 1998, alleging a
bona fide intention to use the mark in commerce. Applicant is
the owner of Registration No. 2,768,509, issued September 20,
2003, for the mark GARDEN STICKS (“STICKS” disclaimed) for
“vegetable-based snack foods.”
THIS DECISION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Opposition No. 91118502
2
Section 2(d) of the Trademark Act on the ground that
applicant’s mark, if applied to applicant’s goods, would so
resemble opposer’s previously used and registered marks, as
to be likely to cause confusion. Opposer pleaded ownership
of the following registered marks: GARDEN GRAINS (“GRAINS”
disclaimed) for “grain based snack food;”2 GARDEN OF EATIN’
and the mark shown below
for “natural food products, namely, corn chips, tortillas
and bread;”3 and the mark shown below
for “bean dip” (in International Class 29) and “natural food
products, namely, corn chips, tortillas, bread and salsa”
(in International Class 30).4
2 Registration No. 2,300,846, issued December 14, 1999.
3 Registration No. 1, 711,976, issued September 1, 1992, renewed,
and Registration No. 1,726,002, issued October 20, 1992, renewal
pending, respectively.
4 Registration No. 1,900,789, issued June 20, 1995; combined
Sections 8 and 15 affidavit filed.
Opposition No. 91118502
3
Applicant, in its answer, denied the salient
allegations in the notice of opposition.
The record consists of the pleadings; the file of the
involved application; trial testimony, with related
exhibits, taken by opposer; portions of a discovery
deposition of applicant’s president and one of the exhibits
introduced therein, and applicant’s answer to one of
opposer’s interrogatories, all made of record by way of
opposer’s notice of reliance; and over 170 third-party
registrations of marks incorporating the term “GARDEN” in
the food industry, all introduced in applicant’s notice of
reliance. Both parties filed briefs. An oral hearing was
not requested.
According to the testimony of Adam Levit, a vice
president of marketing, snack foods division, opposer and
its predecessor have been using the GARDEN OF EATIN’ marks
since 1972, and the mark GARDEN GRAINS since 1998. Sales of
food products under the GARDEN OF EATIN’ marks were $37
million for the last two years, and total $55-$65 million
over the last five years. Sales of snack food products
under the mark GARDEN GRAINS total $350,000 for the last two
years. In the past two years, opposer has spent
approximately $6 million on advertising goods sold under the
GARDEN OF EATIN’ marks, and in excess of $50,000 on
advertising goods sold under the mark GARDEN GRAINS.
Opposition No. 91118502
4
Opposer’s food products are sold throughout the United
States in natural food stores (stores selling natural and
organic products), grocery stores and supermarkets.
Francois Bogrand, applicant’s president, testifying in
a discovery deposition, indicated that applicant intends to
use the mark GARDEN CHIPS in connection with “primarily
potato-based snacks with a small percentage of vegetable.”
Mr. Bogrand agreed that opposer’s food products are sold
through the same channels of trade as applicant’s goods are
intended to be sold, such as natural food stores and grocery
stores.
Because opposer has made its pleaded registrations of
record, priority is not an issue in this case with respect
to the mark and goods identified therein. See: King Candy
Co., Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182
USPQ 108 (CCPA 1974). Further, applicant conceded opposer’s
priority. (brief, p. 18). Accordingly, the only issue to
be decided is whether opposer has established that a
likelihood of confusion exists between its pleaded marks and
the mark applicant seeks to register.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence that are relevant
to the factors bearing on the likelihood of confusion issue.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). In any likelihood of confusion
Opposition No. 91118502
5
analysis, two key considerations are the similarities
between the marks and the similarities between the goods.
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976).
With respect to the goods, applicant attempts to
distinguish its “vegetable-based snack foods” from opposer’s
“grain based snack food.” Applicant contends that while the
products may all fall into the broad category of snack
foods, corn-based snack foods and potato-based snack foods
are distinct product lines, differing in formula and
category. Applicant asserts that a consumer seeking to buy
a corn-based tortilla chip would not mistakenly buy a potato
chip, and vice versa.
It is well established that the goods of the parties
need not be similar or competitive, or even move in the same
channels of trade, to support a holding of likelihood of
confusion. It is sufficient that the respective goods are
related in some manner, and/or that the conditions and
activities surrounding the marketing of the goods are such
that they would or could be encountered by the same persons
under circumstances that could, because of the similarity of
the marks, give rise to the mistaken belief that they
originate from the same source. See In re International
Telephone & Telephone Corp., 197 USPQ 910, 911 (TTAB 1978).
Opposition No. 91118502
6
Further, the inquiry is whether purchasers are likely to
confuse the source of the goods, not the goods themselves.
We find that, for purposes of comparing the goods in
our likelihood of confusion analysis, opposer’s grain based
snack foods and natural corn chips and applicant’s vegetable
based snack foods are closely related. Both products are
snack foods, albeit different in a basic ingredient.
It is also clear that the products are sold in the same
trade channels to the same classes of purchasers. As the
record demonstrates, opposer’s snack foods are sold in
natural food stores, grocery stores and supermarkets, the
very same stores in which applicant intends to sell its
snack food. Indeed, Mr. Bogrand admitted that the trade
channels for the parties’ snack foods are identical.5
Further, the same classes of consumers would purchase
both types of snack products. These snack foods are
relatively inexpensive items, and often would be purchased
on impulse.
The parties debate the level of sophistication of
purchasers of natural or organic food items. Applicant,
drawing on the testimony of Mr. Levit, asserts that
consumers for natural and organic snack foods are more
health-conscious and sophisticated than are the consumers
5 Applicant, in its brief, admits that the parties market their
goods in the same channels of trade. (brief, p. 27).
Opposition No. 91118502
7
for ordinary snack foods.
It is common knowledge that purchasers today spend more
time looking at food labeling (such as ingredients, grams of
fat and carbohydrates, etc.) in their quest for a healthier
diet. While the purchasing decision may be more informed in
recent years, that does not mean that purchases are made
with a high degree of sophistication. The products involved
herein are inexpensive snack foods, and we find that the
purchasers for these products would exercise nothing more
than ordinary care in making their selections.
That the goods are closely related, that purchasers and
trade channels overlap, and that the snack foods are
inexpensive are factors that weigh in favor of opposer in
our duPont analysis.
The crux of this case, however, turns on a comparison
of the parties’ marks which, as noted above, is another key
issue in likelihood of confusion cases.
Although opposer lumps the pleaded marks together as
its “GARDEN marks,” we find that opposer’s mark GARDEN
GRAINS and opposer’s GARDEN OF EATIN’ marks are different in
significant respects and require separate analysis in
comparing these marks with applicant’s mark GARDEN CHIPS.
We first direct our attention to opposer’s GARDEN OF
EATIN’ marks. The only common element between these marks
of opposer and applicant’s mark GARDEN CHIPS is the presence
Opposition No. 91118502
8
of the term “GARDEN.” When considered in their entireties,
opposer’s GARDEN OF EATIN’ marks and applicant’s mark GARDEN
CHIPS are different in sound, appearance and, most
significantly, in meaning and overall commercial impression.
Opposer’s GARDEN OF EATIN’ marks evoke images of the Garden
of Eden, a natural place untouched by man’s chemicals. The
design features shown in opposer’s Registration No.
1,726,002 reinforce this image. The design shows what might
be seen as a pictorial representation of the Garden of Eden,
including a path winding through trees. Lest there be any
doubt, the apple at the front of the design makes it clear
about the Garden of Eden connotation of the mark as a whole.
Mr. Levit acknowledged that “certainly the biblical term
Garden of Eden does come to mind when you put those three
words next to each other.” (Levit dep., p. 28). This
connotation is not even vaguely suggested by applicant’s
mark; rather, applicant’s mark suggests that its snack food
chips are fresh or natural. Simply put, the unitary phrase
GARDEN OF EATIN’ creates an entirely different commercial
impression than the one created by GARDEN CHIPS. The
significant differences in meaning and overall commercial
impression between opposer’s GARDEN OF EATIN’ marks and
applicant’s mark clearly outweigh the commonality of the
term “GARDEN” in the marks (see discussion, infra, regarding
use of the term “garden” in the food industry).
Opposition No. 91118502
9
We next turn to compare applicant’s mark GARDEN CHIPS
with opposer’s mark GARDEN GRAINS. When it comes to this
mark, the issue of likelihood of confusion is not so clear.
Once again, the marks share the common, highly suggestive
element “GARDEN,” but this time the marks are also similarly
constructed, with the common element being followed by a
highly descriptive/generic term which has been disclaimed.
Of particular significance when comparing these marks
is the evidence of over 170 third-party registrations of
marks which include the term “GARDEN” covering food
products. The registrations cover a wide range of food
items, some of which are identified as “processed.” Of the
over 170 registrations, the Board has identified five
registrations which specifically cover snack foods.6
Applicant contends that the mere existence of the term
“GARDEN” in its mark cannot be the basis for finding
likelihood of confusion herein.
Third-party registrations, without evidence of actual
use, are of very limited value in the determination of the
question of likelihood of confusion. Nevertheless, third-
party registrations are entitled to some weight when they
are offered to show the sense in which a term, word, prefix
6 Registration No. 2,492,412 for the mark HADLEY DATE GARDENS;
Registration No. 2,156,948 for the mark SUN GARDEN; Registration
No. 1,507,387 for GARDEN PATCH; Registration No. 1,890,044 for
FOOD GARDEN; and Registration No. 1,739,179 for HARRY’S GARDEN.
Opposition No. 91118502
10
or other feature of a mark is used in ordinary parlance.
They may show that a particular term has descriptive or
suggestive significance as applied to certain goods. Stated
somewhat differently, third-party registrations are entitled
to weight to show the meaning of a mark in the same way that
dictionaries are used. Tektronix, Inc. v. Daktronics, Inc.,
534 F.2d 915, 189 USPQ 693 (CCPA 1976); General Mill Inc. v.
Health Valley Foods, 24 USPQ2d 1270 (TTAB 1992); and United
Foods Inc. v. J.R. Simplot Co., 4 USPQ2d 1172 (TTAB 1987).
In this case, with or without the third-party
registrations, it is clear that the term “GARDEN,” as used
in connection with food items, including snack foods, is a
highly suggestive term indicating that the food item is
fresh or natural, and comes from the garden. The existence
of these numerous third-party registrations in the food
field for marks which include “GARDEN” as a portion thereof
supports this conclusion and the registrations are entitled
to some weight for that purpose.
While opposer’s mark GARDEN GRAINS and applicant’s mark
GARDEN CHIPS both suggest that the snack foods are natural
or garden fresh, we do not view the common “GARDEN” element
as sufficient to warrant a finding of likelihood of
confusion. This is so because, in this case, the common
element “GARDEN” is a highly suggestive term which has been
adopted by others as part of their mark in the food field.
Opposition No. 91118502
11
Further, the marks GARDEN GRAINS and GARDEN CHIPS look and
sound different. We find these marks to be extremely weak
and highly suggestive. See: Sure-Fit Products Co. v.
Saltzson Drapery Co., 117 USPQ 295 (CCPA 1958) [no
likelihood of confusion between RITE-FIT and SURE-FIT for
slip covers--“Assuming arguendo that the marks RITE-FIT and
SURE-FIT are similar in meaning, we are of the opinion that
they are so distinct in sound and appearance as to overcome
such similarity in meaning.”]; Burns Philip Food Inc. v.
Modern Products Inc., 24 USPQ2d 1157 (TTAB 1992), aff’d, 28
USPQ2d 1687 (Fed. Cir. 1993)(unpublished) [confusion is
unlikely between SPICE GARDEN and SPICE ISLANDS, both for
spices]; and United Foods Inc. v. J.R. Simplot Co., supra
[no likelihood of confusion between QUICK ‘N CRISPY
(“CRISPY” disclaimed) for frozen vegetables and QUICK ‘N
CHEESY (“CHEESY” disclaimed), QUICK ‘N BUTTERY (“BUTTERY”
disclaimed) and QUICK ‘N SAUCY (“SAUCY” disclaimed) for
frozen vegetables]. Given the highly suggestive nature of
the common element “GARDEN,” the addition of the term
“CHIPS” to applicant’s mark is sufficient to distinguish it
from any and all of opposer’s marks, including the mark
GARDEN GRAINS, notwithstanding the fact that the
distinguishing portions of the marks, “GRAINS” and “CHIPS,”
have been disclaimed. Sure-Fit Products Co. v. Saltzson
Drapery Co., supra at 297 [“It seems both logical and
Opposition No. 91118502
12
obvious to us that where a party chooses a trademark which
is inherently weak, he will not enjoy the wide latitude of
protection afforded the owners of strong trademarks. Where
a party uses a weak mark, his competitors may come closer to
his mark than would be the case with a strong mark without
violating his rights. The essence of all we have said is
that in the former case there is not the possibility of
confusion that exists in the latter case.”].
In considering the third-party registrations, we note
that evidence of fame may outweigh the registration
evidence. In discussing its mark, opposer asserts that its
“GARDEN Marks have gained wide recognition through extensive
use throughout the United States for many years....the only
conclusion that can be drawn from [the record] is that
Opposer’s GARDEN Marks are extremely well-known and command
a high degree of recognition among purchasers of snack
foods.” (Brief, pp. 17-18).
With respect to its GARDEN OF EATIN’ marks, we
recognize that use dates back to 1972; that over the last
five years, sales under the marks totaled between $55
million and $65 million; and that advertising expenditures
during the same period have been between $9 million and $10
million. As to the mark GARDEN GRAINS, first use occurred
four years ago; sales under this mark in the last two years
Opposition No. 91118502
13
total approximately $350,000; and advertising expenditures
in the last two years have been $350,000.
Although the record demonstrates that opposer has
enjoyed success with its products, the sales and advertising
figures, standing alone, fall short in establishing fame of
the marks as contemplated by that duPont factor. This is
surely the case with opposer’s mark GARDEN GRAINS under
which extent of use, sales and advertising have been far
less. There is no evidence regarding market share, brand
awareness or any other evidence shedding light on the
effects of the sales and advertising on the perceptions of
the purchasing public. Compare: Recot Inc. v. M.C. Becton,
214 F.3d 1322, 54 USPQ2d 1894 (Fed. Cir. 2000); and Kenner
Parker Toys, Inc. v. Rose Art Industries, Inc., 963 F.2d
350, 22 USPQ2d 1453 (Fed. Cir. 1992).
In view of the above, we conclude that opposer’s GARDEN
OF EATIN’ marks and GARDEN GRAINS mark, when considered in
their entireties, do not so resemble applicant’s GARDEN
CHIPS mark as to result in likelihood of confusion when used
in connection with snack foods.
Decision: The opposition is dismissed.