Associated Grocers, Inc.

Trademark Trial and Appeal Board

Jan 13, 2000

No. 75287214 (T.T.A.B. Jan. 13, 2000)

Paper No. 10
GDH/gdh
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 1/13/00
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Associated Grocers, Incorporated
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Serial No. 75/287,214
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Faye L. Tomlinson of Christensen O’Connor Johnson & Kindness PLLC
for Associated Grocers, Incorporated.
Teresa A. Lee, Trademark Examining Attorney, Law Office 111
(Craig Taylor, Managing Attorney).
_______
Before Simms, Cissel and Hohein, Administrative Trademark Judges.
Opinion by Hohein, Administrative Trademark Judge:
An application has been filed by Associated Grocers,
Incorporated to register the mark "CR CONSUMER READY PRODUCTS"
and design, as reproduced below,
Ser. No. 75/287,214
2
for "food products, namely meat" in International Class 29 and
"wholesale distributorships in the field of food products" in
International Class 35.1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to its goods and services, so
resembles the mark "CONSUMER READY," which is registered on the
Supplemental Register for "pork,"2 as to be likely to cause
confusion, mistake or deception.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
Turning first to consideration of the respective goods
and services, applicant admits that while its "broad category of
food products, namely, meat and registrant's particular meat
product, i.e., pork would be considered related," it nevertheless
insists that its wholesale distributorships and the meat products
sold therein would involve sales to "sophisticated and
professional" purchasers rather than to ordinary consumers. In
particular, applicant asserts that because the "relevant
purchasers in Appellant's case are the various grocery store
department buyers," such discriminating purchasers "are held to a
higher standard when determining likelihood of confusion."

1 Ser. No. 75/287,214, filed on May 5, 1997, which alleges a bona fide
intention to use such mark in commerce. The words "CONSUMER READY
PRODUCTS" are disclaimed.
2 Reg. No. 2,064,210, issued on May 20, 1997, which sets forth dates of
first use of November 5, 1993.
Ser. No. 75/287,214
3
Applicant also maintains that, even if the relevant purchasers of
the respective goods and services were to include ordinary
consumers, there would essentially be no likelihood of confusion.
According to applicant:
If the purchaser of registrant’s pork is the
average grocery store customer, then no
confusion exists since Appellant’s purchasers
are sophisticated grocery store department
buyers and there is little overlap and where
there is overlap, the overlap is comprised of
the sophisticated purchasers. If instead
registrant’s goods also travel through
wholesale channels, then the purchasers are
also sophisticated, and in the grocery store
environment are likely to be knowledgeable in
the field of trademarks as well as
knowledgeable in their field of purchase.
The result is that any likelihood of
confusion as to the source of Appellant’s
goods and services and registrant’s goods
remains remote.
We agree with the Examining Attorney, however, that due
to the broad manner in which they are identified, applicant’s
goods and services, on the one hand, and registrant’s products,
on the other, are identical in part (inasmuch as "meat" obviously
encompasses "pork") and are otherwise sufficiently related (since
meat may be distributed through wholesale food product
distributorships) that, if sold under the same or substantially
similar marks, confusion as to their origin would be likely. As
the Examining Attorney correctly points out, it is well settled
that the issue of likelihood of confusion must be determined in
light of the goods and/or services as set forth in the involved
application and cited registration and, in the absence of any
specific limitations therein, on the basis of all normal and

Ser. No. 75/287,214
4
usual channels of trade and methods of distribution for such
goods and/or services. See, e.g., CBS Inc. v. Morrow, 708 F.2d
1579, 218 USPQ 198, 199 (Fed. Cir. 1983); Squirtco v. Tomy Corp.,
697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983); and Paula
Payne Products Co. v. Johnson Publishing Co., Inc., 473 F.2d 901,
177 USPQ 76, 77 (CCPA 1973). In consequence thereof, and
contrary to applicant’s contentions that its goods and services
are marketed only through wholesale channels of trade while
registrant’s goods are exclusively sold prepackaged directly to
consumers, applicant’s goods and services and registrant’s goods
must be presumed to encompass all goods and services of the types
described. We must also presume that such goods and services
move in all normal channels of trade therefor, including, in the
case of the respective goods, wholesale distributorships in the
field of food products as well as retail grocery stores and
supermarkets, and that the respective goods and services are
available to all potential customers, including wholesalers as
well as ordinary retail consumers. See, e.g., In re Elbaum, 211
USPQ 639, 640 (TTAB 1981).
Turning, therefore, to consideration of the respective
marks, applicant concedes that a mark registered on the
Supplemental Register, as is the case with registrant’s mark, can
"serve as a bar to registration." See, e.g., In re Clorox Co.,
578 F.2d 305, 198 USPQ 337, 339-40 (CCPA 1978). Applicant
insists, however, that "[t]he fact that a mark is registered on
the Supplemental Register is ... strong evidence of the [lack of]
Ser. No. 75/287,214
5
strength of the mark and therefore is critical in determining the
scope of protection afforded to that trademark."
Specifically, applicant argues that, "in the present
situation, registration of registrant’s mark on the Supplemental
Register combined with the fact that Appellant was required to
disclaim the words ’Consumer Ready Products’ in its application
is evidence that the mark CONSUMER READY is descriptive" and thus
the "scope of protection for [such] a descriptive mark is very
narrow." Applicant further contends that, in view thereof, the
addition to its mark of "a prominent design feature that includes
additional letters and a logo" creates a mark which is
distinguishable from registrant’s mark. Viewing the respective
marks in their entireties, applicant asserts that the "bold and
distinctive" design feature of its mark precludes any likelihood
of confusion, given the descriptiveness inherent in the words
"CONSUMER READY" in both registrant’s and applicant’s marks.
We nevertheless are constrained to agree with the
Examining Attorney that contemporaneous use of the respective
marks would be likely to cause confusion as to source or
sponsorship. As the Examining Attorney persuasively points out,
not only do such marks share the identical terminology "CONSUMER
READY," but
the addition of the term "PRODUCTS" in
applicant’s mark does not mitigate the
confusing similarity since [the generic term]
"PRODUCTS" essentially possesses no trademark
value. .... Further, the presence of the
letters "CR" in the proposed mark ... does
not alleviate the confusion between the
marks. Because consumers would readily
perceive such lettering as the acronym for
Ser. No. 75/287,214
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"CONSUMER READY," "CR" would only serve to
highlight the similarity amongst the marks.
Moreover, contrary to applicant’s argument that the design
feature of its mark is "bold and distinctive," the Examining
Attorney has made of record numerous third-party registrations
for marks which include a combination of circular and banner
designs and which are registered for, inter alia, various food
and beverage products. These third-party registrations are
sufficient to establish that marks incorporating such designs
have been commonly adopted and registered by many sellers in the
field of food and beverage products and thus, even when boldly or
prominently displayed as part of those marks, such designs can
scarcely be said to be distinctive in and of themselves.
Instead, as is the case with applicant’s "CR CONSUMER
READY PRODUCTS" and design mark, customers and prospective
purchasers of applicant’s meat products and its wholesale
distributorship services in the field of food products would
regard the circular and banner design feature of such mark as
simply a background or vehicle for the display of the literal
elements of the mark, namely, the wording "CR CONSUMER READY
PRODUCTS". Such wording, which consumers would use when calling
for or asking about applicant’s goods, is substantially identical
in connotation to the words "CONSUMER READY" in registrant’s mark
for its pork, given the fact that in applicant’s mark, the term
"PRODUCTS" is generic and the letters "CR" would be readily
understood as an acronym or initialism for the words "CONSUMER
READY".
Ser. No. 75/287,214
7
In consequence thereof, we find that when considered in
their entireties, applicant’s "CR CONSUMER READY PRODUCTS" and
design mark and registrant’s "CONSUMER READY" mark project the
same basic overall commercial impression. Ordinary consumers,
for example, could readily believe in view thereof that the meat
which they encounter under applicant’s "CR CONSUMER READY
PRODUCTS" and design mark comes from the same source as the pork
which they have seen sold or advertised under registrant’s
"CONSUMER READY" mark. Additionally, even among sophisticated
and discriminating purchasers, such as buyers for retail grocery
stores and supermarkets, it would still be the case that, while
they might notice the differences between the respective marks,
they could still reasonably believe that, for instance,
registrant’s "CONSUMER READY" pork is a private label brand
offered by applicant through its "CR CONSUMER READY" and design
brand of wholesale distributorships for food products, or that
its "CR CONSUMER READY" and design brand meat is simply a
different grade or quality of pork from the same supplier as
registrant’s "CONSUMER READY" pork. Confusion as to origin or
sponsorship, therefore, is likely to occur from simultaneous use
of the respective marks, notwithstanding the descriptiveness of
the terminology "CONSUMER READY".
Decision: The refusal under Section 2(d) is affirmed.
R. L. Simms
R. F. Cissel
Ser. No. 75/287,214
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G. D. Hohein
Administrative Trademark Judges,
Trademark Trial and Appeal Board