Clover Leaf Trading Co.

Trademark Trial and Appeal Board

May 16, 2001

No. 75853341 (T.T.A.B. May. 16, 2001)

5/16/01
Paper No. 9
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Clover Leaf Trading Co.
________
Serial No. 75/853,341
_______
Myron Amer of Myron Amer, P.C. for Clover Leaf Trading
Corp.
Elizabeth A. Hughitt, Trademark Examining Attorney, Law
Office 111 (Craig D. Taylor, Managing Attorney).
_______
Before Hanak, Wendel and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
On November 17, 1999, Clover Leaf Trading Corp.
(applicant) filed Trademark Application Serial No.
75/853,341 to register the mark GOLDEN LEAF BRAND and
design with Chinese characters for goods ultimately
identified as “Chinese food products, namely, Chinese style
sausage with turkey and duck liver added” in International
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser. No. 75/853,341
2
Class 29.1 An informal drawing of applicant’s mark is set
out below.
In response to the Examining Attorney’s requirement
for a proper special form drawing, applicant has expressly
agreed to comply with this requirement. Brief at 1-2.2 In
response to the Examining Attorney’s requirement for a
translation of the Chinese characters, applicant translated
those characters as: “always prosperous opportunity.”3
Response dated August 28, 2000. Also, in response to the
Examining Attorney’s requirement, applicant disclaimed the
word “brand,” apart from the mark as shown.
In addition to these requirements, the Examining
Attorney has finally refused registration on the ground
1 The application was based on an allegation of a bona fide
intent to use the mark in commerce.
2 In the event that applicant ultimately prevails in this
application, it must comply with the Examining Attorney’s
requirement for an acceptable drawing before the mark can be
published.
3 In its Appeal Brief (p. 1), applicant agreed to delete the word
“in” that appeared in its translation, which it submitted in the
Reply dated August 28, 2000.
Ser. No. 75/853,341
3
that applicant’s mark, as applied to the goods recited in
the application, so resembles two prior registrations
discussed below for the identified goods as to be likely to
cause confusion, or to cause mistake or to deceive.4 15
U.S.C. § 1052(d). The first registration is for the mark
GOLD LEAF (typed drawing)5 for “frying chicken parts.” The
second registration is for the mark GOLD LEAF and design6
for “roasting chickens, and frying chicken parts including
split breasts with ribs and abdominal fat attached, breasts
with ribs and abdominal fat attached, legs, drumsticks,
thighs, wings, backs and necks, gizzards and hearts, wing
parts, breast fillets, and backs,” shown below.7
4 Applicant originally identified its goods as “Chinese food
products.” Because of this broad identification of goods, in her
first Office action, the Examining Attorney cited the two
registrations discussed above and the following three additional
registrations against applicant’s mark: (1) Registration No.
2,098,775 consisting of Chinese characters translated as “golden
leaf slim tea” or “golden leaf diet tea” for herbal tea; (2)
Registration No. 1,818,071 for the mark GOLDEN LEAF for various
bread and pastry products sold frozen through institutional
channels, and (3) Registration No. 1,451,077 for the mark GOLD
LEAF for fruit-based pie fillings. When applicant limited its
identification of goods to “Chinese food products, namely,
Chinese style sausage with turkey and duck liver added,” the
Examiner Attorney withdrew these three registrations.
5 Registration No. 998,276, issued November 12, 1974; first
renewal.
6 Registration No. 1,226,077, issued February 1, 1983; Section 8
affidavit accepted and Section 15 affidavit acknowledged.
7 The drawing for Registration No. 1,226,077 shown here is from a
hard copy of the registration, which shows the mark more clearly.
The drawing is lined for the color gold and color is claimed as a
feature of the mark.
Ser. No. 75/853,341
4
Both registrations are owned by the same party, Tyson
Foods, Inc.8 After the Examining Attorney made the refusal
final, applicant appealed. Both the Examining Attorney and
applicant have filed briefs. An oral hearing was not
requested.
The Examining Attorney argues that while the terms
GOLD LEAF and GOLDEN LEAF BRAND are not identical, they
create the same impression, i.e., a gold-colored leaf.
Noting the differences between applicant’s mark and the
cited registrations, the Examining Attorney’s position is
that the additional word “brand,” the Chinese characters,
and the shamrock design do not change the commercial
impression. Under her analysis, “consumers would clearly
call for the parties’ products as GOLDEN LEAF (the
applicant) and GOLD LEAF (the registrant)”, and that the
8 In its Reply Brief, applicant points out that the printouts of
the registrations in the file show different parties as owners of
the registrations. However, in the assignment records of the
Office, Tyson Foods, Inc is listed as the owner of both
registrations. See Reel and Frame Nos. 1815/0624, 0860/0671,
0860/0655, and 0582/0931 for Registration Nos. 998,276 and
1,226,077. Also, Registration No. 1,226,077 claims ownership of
Registration No. 998,276.
Ser. No. 75/853,341
5
other elements would not serve as source indicators. Brief
at 7.
In addition, the Examining Attorney argues that both
applicant’s and registrant’s goods are meat products that
often emanate from the same source. She introduced several
registrations showing registration of the same mark for
both sausage and chicken. While applicant’s goods are
Chinese style sausage, the Examining Attorney also observed
that registrant’s goods are not limited to a particular
type of chicken and registrant must be presumed to be
marketing all types of chicken, including Chinese style
stir-fry.
Finally, the Examining Attorney argues that the
withdrawn registrations are distinguishable because they
involve products (pie filling, breads, and herbal tea) that
are significantly distinct from applicant’s goods as
ultimately identified.
On the other hand, applicant argues that the Examining
Attorney failed to appreciate the “addition thereto of the
ending ‘EN’ to the word ‘Gold’ and the third word ‘BRAND,’
that warrants concluding that there would be cognitive
factors leading away from any likelihood of public
confusion.” Brief at 3. In addition, applicant argues
that the differences between Chinese style sausage and
Ser. No. 75/853,341
6
frying chicken parts and roasting chickens are more than
enough to obviate confusion. Finally, applicant maintains
that the differences between the goods in the withdrawn
registrations and applicant’s goods are of the same nature
as that of the differences between applicant’s goods and
the currently cited registrations and logic dictates that
there is no confusion in the marketplace.
We have considered the arguments of the Examining
Attorney and applicant and the evidence of record. We
conclude that the refusal to register under Section 2(d) is
well taken, and we affirm the Examining Attorney’s refusal.
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
Ser. No. 75/853,341
7
create a similar overall commercial impressions. The test
is not whether the marks can be distinguished in a side-by-
side comparison, but whether they are sufficiently similar
in their overall commercial impression so that confusion as
to the source of the goods marketed under the respective
marks is likely to result. In this analysis, “there is
nothing improper in stating that, for rational reasons,
more or less weight has been given to a particular feature
of the 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).
In this case, applicant’s mark consists of the words
GOLDEN LEAF BRAND with a shamrock design and Chinese
characters translated as “always prosperous opportunity.”
Registrant’s marks consist of the typed words GOLD LEAF and
the mark GOLD LEAF with a leaf design. Applicant correctly
points out that the registered marks do not have the “en”
at the end of “gold,” or the disclaimed term “brand.”
However, we do not find these differences in the marks
create different overall commercial impressions. We agree
with the Examining Attorney that the terms “gold leaf” and
“golden leaf” create the same impression: a gold-colored
leaf. The disclaimed word “brand” is of little trademark
Ser. No. 75/853,341
8
significance. Jacob Frost Packing Co. v. C.W. Antrim &
Sons, 118 F.2d 576, 49 USPQ 64, 66 (CCPA 1941) (“Brand” is
“by itself, obviously incapable of trademark
significance”); Kraft, Inc. v. Country Club Food
Industries, 230 USPQ 549, 551 (TTAB 1986) (“The term
“BRAND” is virtually without trademark significance”); In
re Thomas H. Wilson, ___ USPQ2d ___, ___, Application No.
75/285,881 (TTAB January 19, 2001) (“BRAND is devoid of
source-indicating significance”).
As to the other features of applicant’s mark, we do
not find that the presence of applicant’s Chinese
characters would prevent the words GOLDEN LEAF from being
the dominant part of the mark. For most Americans, the
Chinese characters would be just another feature of the
design because they would not be able to translate the
characters. The addition of Chinese characters, by itself,
does not change the commercial impression of a mark with
English wording. Inasmuch as applicant’s goods are Chinese
style sausage, it would not be unexpected that Chinese
characters would appear with English wording in keeping
with the Chinese theme of the product.
In this case, the marks are similar because
prospective purchasers would use the word portion of the
marks “GOLD LEAF” and “GOLDEN LEAF” to ask for the
Ser. No. 75/853,341
9
products. The marks sound similar, they look similar, and
they have similar meanings. The words GOLD LEAF and GOLDEN
LEAF are not weak or descriptive terms when applied to the
goods, and applicant’s design features do not change the
overall impression of its marks. Therefore, the marks when
compared in their entireties have similar overall
commercial impressions.
The fact that food products are sold under similar
marks hardly establishes that there is a likelihood of
confusion. There is no per se rule that all food products
are related. We must next determine if applicant’s Chinese
style sausage with turkey and duck liver added is related
to registrant’s frying chicken parts and roasting chicken.
We must determine whether there is a likelihood of
confusion based on the identification of goods in the
registration and the application. Paula Payne Products v.
Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA
1973) (“Trademark cases involving the issue of likelihood
of confusion must be decided on the basis of the respective
descriptions of goods”).
In order to support a determination that the goods are
related, it is not necessary that respective goods be
identical or even competitive. If the goods are marketed
in such a way that would lead customers to a mistaken
Ser. No. 75/853,341
10
belief that they originate from or are in some way
associated with the same producer or that there is some
association or connection between the producers of the
respective goods, the goods are related. Recot Inc. v.
M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir.
2000); In re International Telephone & Telegraph Corp., 197
USPQ 910, 911 (TTAB 1978).
Here, both applicant’s and registrant’s products are
meat products. Registrant’s products are poultry parts
(chicken) and applicant’s sausage contains poultry parts
(turkey and duck livers). Consumers familiar with
registrant’s chicken parts who encountered applicant’s
sausage with turkey and duck liver added would likely
believe that these sausages sold under a very similar mark
come from the same source as that of the chicken parts.
The Examining Attorney’s conclusion that registrant’s
chicken and applicant’s sausage are related products is
supported by the third-party registrations that the
Examining Attorney has made of record. Although these
registrations are not evidence that the marks shown in the
registrations are in commercial use or that the public is
familiar with them, they do have some relevance in
suggesting that goods of applicant and registrant may
emanate from the same source. In re Mucky Duck Co., 6
Ser. No. 75/853,341
11
USPQ2d 1367 (TTAB 1988). Here, many of these registrations
suggest that sausage and chicken are marketed under the
same trademarks.9 This evidence reinforces the relatedness
determination of the Examining Attorney.
Finally, when applicant’s identification of goods was
much broader, (Chinese food products), the Examining
Attorney cited three additional registrations for GOLD LEAF
or GOLDEN LEAF. While these registrations were
subsequently withdrawn, applicant maintains that the same
logic that lead to the withdrawal of the three cited
registrations should lead to a conclusion that there is no
likelihood of confusion in this case. We disagree. Bread
and pastries sold frozen in institutional food channels,
fruit-based pie filling, and herbal tea, are significantly
different products from the goods involved here. Both
applicant’s and registrant’s goods are meat products. Both
products are, or contain, poultry. Both products may be
found in the same part of the store, the meat section.
The question is whether the public is likely to reasonably
believe that the products come from the same source when
9 We find the registrations that appear to be restaurants that
are distributing their food products to be less relevant. See
Registration Nos. 2,389,112; 2,389,063; 2,316,050; 2,265,119;
2,363,154; and 2,280,825.
Ser. No. 75/853,341
12
sold under similar marks. Here, the evidence supports the
relatedness of Chinese style sausage with turkey and duck
liver added and roasted and frying chickens.
Decision: The refusal to register is affirmed.