F. L. Emmert Co.v.Moorman Mfg. Co.

Trademark Trial and Appeal Board

Nov 30, 2001

No. 91109065 (T.T.A.B. Nov. 30, 2001)

11/30/01

Paper No. 51
Bottorff

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

The F.L. Emmert Company
v.
Moorman Manufacturing Company
_____

Opposition No. 109,065
to application Serial No. 75/210,301
filed on December 9, 1996
_____

Fred S. Lockwood of Cook, Alex, McFarron et al. for The
F.L. Emmert Company.

Michael D. Johns and Lynda E. Roesch of Dinsmore & Shohl
LLP for Moorman Manufacturing Company.
______

Before Simms, Hairston and Bottorff, Administrative
Trademark Judges.

Opinion by Bottorff, Administrative Trademark Judge:

Applicant seeks registration on the Principal
Register of the mark SHOWBOOST (in typed form) for goods
identified in the application as “animal feed,” in Class
31. The application is based on use in commerce under
Trademark Act Section 1(a), 15 U.S.C. §1051(a), and
November 25, 1996 is alleged as the date of first use of
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Opposition No. 109,065
2
the mark and the date of first use of the mark in
commerce.
Opposer filed a timely notice of opposition to
registration of applicant’s mark, alleging priority of
use and likelihood of confusion under Trademark Act
Section 2(d), 15 U.S.C. §1052(d), as the ground of
opposition. Specifically, opposer alleges that it is the
owner of an incontestable registration of the mark SHOW
BLOOM! (stylized) for “protein and vitamin conditioner
and supplement in livestock, including horses,” in Class
5;1 that it is the prior user (since April 1983) of the
mark SHOW BLOOM for such goods; and that applicant’s
mark, as applied to applicant’s goods, so resembles
opposer’s mark as to be likely to cause confusion, to
cause mistake, or to deceive.

1 Registration No. 1,385,725, issued March 11, 1986. Opposer
did not properly make this registration of record in accordance
with the provisions of Trademark Rule 2.122(d), 37 CFR
§2.122(d). Applicant, however, in its brief, has treated the
registration as being properly of record, having asserted that
the likelihood of confusion issue in this case is “as between
Applicant’s mark SHOWBOOST as sought to be registered in typed
generic form and Opposer’s show bloom! as used as a trademark
and as shown in its registration No. 1,385,725 dated March 11,
1986 and as used in trade literature in the form Show Bloom.”
(Applicant’s Brief at 1.) In view thereof, we too shall treat
opposer’s pleaded Registration No. 1,385,725 as being of record,
and shall give it full effect. See Local Trademarks Inc. v.
Handy Boys Inc., 16 USPQ2d 1156 (TTAB 1990); TBMP §703.02(a).
Opposition No. 109,065
3
Applicant filed an answer by which it denied the
allegations of the notice of opposition which are
essential to opposer’s Section 2(d) claim.
The evidence of record consists of: the testimony
deposition of opposer’s president A. Lawrence Muzzo and
the exhibits thereto; certain documents produced by
applicant in discovery and submitted as evidence by
opposer pursuant to the parties’ stipulation; opposer’s
notices of reliance on certain dictionary definitions and
on certain of applicant’s interrogatory answers; the
complete transcripts of (and exhibits to) the discovery
depositions of applicant’s product manager James Benz and
its marketing manager David Kleiboeker, made of record
pursuant to the parties’ stipulation; the testimony
deposition of applicant’s product manager James Benz and
the exhibits thereto2; applicant’s notice of reliance on
certain of opposer’s interrogatory answers; and opposer’s

2 Opposer has moved to strike Exhibit 2 to the testimony
deposition of Mr. Benz. That exhibit, a list of applicant’s
marks, was offered by applicant for the purpose of establishing
applicant’s use of various other “BOOST” marks, a fact which
goes to the issue of applicant’s intent in adopting the
SHOWBOOST mark at issue here. However, we find that applicant’s
use of such other “BOOST” marks also has been established by
other of applicant’s testimony and documentary evidence, and
that Exhibit 2 therefore is merely cumulative. In view thereof,
and because we find that the exhibit carries little significant
probative weight in any event, we deem the motion to strike to
be essentially moot. Our decision herein would be the same
regardless of whether we consider the exhibit or not.
Opposition No. 109,065
4
rebuttal testimony deposition of its third-party witness
Roger Kline, Ph.D., and the exhibits thereto.
Opposer and applicant filed main briefs on the case,
and opposer filed a reply brief.3 An oral hearing was
originally requested and scheduled, but later was
canceled pursuant to the parties’ stipulation.
Applicant has conceded opposer’s standing to bring
this opposition proceeding, as well as opposer’s Section
2(d) priority.4 (Applicant’s brief at 1.) Thus, the
issue to be determined in this case is whether a
likelihood of confusion exists. Our likelihood of
confusion determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that
are relevant to the likelihood of confusion factors set
forth in In re E.I. du Pont de Nemours and Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). Based on the evidence of
record with respect to these factors, we find as follows.

3 On the cover pages of its main brief and its reply brief,
opposer has designated both briefs as “confidential” in their
entireties, stating that each brief “contains information which
is subject to a Stipulated Protective Order in this action.”
The Board notes, however, that there is no protective order of
record in the Board’s proceeding file of this case.

4 In any event, priority is not an issue in this case in view of
the evidence establishing the status and title of opposer’s
pleaded Registration No. 1,385,725 (see supra at footnote 1).
King Candy Co., Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108 (CCPA 1974).
Opposition No. 109,065
5
We find that applicant’s goods as identified in the
application, “animal feed,” encompass and therefore are
legally identical to opposer’s goods as identified in its
registration, “protein and vitamin conditioner and
supplement in livestock, including horses.” Applicant
concedes as much. (Applicant’s brief at 1.) The record
shows that both parties are using their respective marks
on animal feed supplements designed to be added to the
normal feed ration of animals being prepared or fitted
for livestock shows; that such show animals can include
dairy and beef cattle, sheep, goats, swine, horses, and
rabbits; that the feed supplements are designed, inter
alia, to enhance the palatability of the animal’s normal
feed so as to maintain the animal’s appetite and feed
intake in the stressful periods prior to and during
livestock shows, and to enhance the healthy and shiny
appearance of the animal’s coat; and that applicant and
opposer are competitors in the market for show feed
supplements.
We also find that the classes of purchasers and the
trade channels for the parties’ respective goods are
legally identical. Again, applicant concedes such
overlap. (Applicant’s brief at 1.) The record shows

Opposition No. 109,065
6
that the normal classes of purchasers for these goods
include the classes which opposer and applicant
especially target, namely, county fair juniors (young
people involved in showing animals as 4-H or FFA
projects), and professional breeders (purebred
producers). The record also shows that the normal trade
channels for the goods include direct sales from the
manufacturer to the individual livestock producers, sales
through distributors, sales through retail dealers (feed
lots and farm supply dealers, for example, as well as
“farmer-dealers” in more remote areas), catalog and mail
order sales, and sales by “show vendors” at livestock
shows.
The methods by which the goods may be promoted and
marketed include those which the record shows are
utilized by opposer, such as: product brochures
(distributed, e.g., via mass mailings to 4-H and FFA
members, at trade shows, by distributors, or in response
to 800-number telephone requests); magazine
advertisements (in publications and mail order catalogs
directed to persons involved in breeding and/or showing
animals); livestock trade shows (by use of exhibition
booths or other means of personal interaction with
potential purchasers, and by distribution and posting of
Opposition No. 109,065
7
advertising brochures and posters at prominent locations
around the show’s facilities); by retail point-of-sale
displays; and by word-of-mouth advertising among
purchasers.
The next factor we consider is the sophistication of
purchasers and the level of care taken in making the
purchasing decision. The evidence of record shows that
opposer commonly sells its feed supplement in a fifty-
pound bag which retails for $35 to $45.5 A fifty-pound
bag of an animal’s base feed retails for seven to ten
dollars. A typical steer’s daily feed ration would be
ten to twelve pounds of base feed, topped with eight
ounces of the feed supplement. (Muzzo Testimony Depo. at
14-16.) Although it may be true, as opposer argues, that
the cost of opposer’s feed supplement is minimal (i.e.,
less than one dollar) when computed on a per diem basis,
we find that the initial required outlay of $35 to $45 is
sufficiently substantial to preclude a finding that these
goods are an “impulse” purchase.
It appears from the record that at least some of the
prospective purchasers of these goods (e.g., the

5 It appears from the record that opposer also sells its product
in twenty-five pound bags, but the retail price therefor is not
of record. It also appears that applicant’s product is sold at
retail in fifty-pound bags, but the retail price of applicant’s
goods is not readily ascertainable.
Opposition No. 109,065
8
professional breeders and experienced exhibitors) are
knowledgable and sophisticated in their fields.
Applicant’s president presented unrebutted testimony
that, based on his experience, purchasers of these goods
“would be quite discriminating. Show people want to have
a competitive edge since their animals are going to be
entered into competition, and they are usually fairly
careful in the type of product that they use and what
they want to feed that animal.” (Benz Testimony Depo. at
10-11.)6 Furthermore, opposer’s product brochures (such
as opposer’s Exhibit No. 48, from which the following
quotation is taken) include the following statements
which tend to suggest that these purchasers of the
products are knowledgable and careful:

Show Bloom, the nutritionally complete
supplement and conditioner, has been
specifically formulated to meet the needs of
the serious show animal breeder and exhibitor.
For years, dedicated animal farmers, 4-H
members, FFA members, and others have invested
significant time and money in the preparation
of animals of high standards for a variety of
competitive trials held throughout the nation
and throughout the world. Now, Show Bloom, a
complete nutritional supplement and

6Opposer objected to this testimony during the deposition, but
has not maintained the objection in its brief. Rather, opposer
has treated the testimony as being properly of record. See
opposer’s main brief at 24, and reply brief at 17.
Accordingly, we deem opposer to have waived its objection, and
we shall treat the testimony as being of record. See generally
TBMP §718.04.
Opposition No. 109,065
9
conditioner, has been developed for the needs
of the person dedicated to show animals.

The record also shows that a significant number of
the relevant purchasers of the goods are county fair
juniors, i.e., young people who are raising and
exhibiting animals as 4-H Club or FFA projects. Opposer
argues that this group of purchasers, which purportedly
always will include novices or first-time participants,
“may lack sophistication.” (Reply brief at 17.) Opposer
has presented no direct evidence to support this
contention. Moreover, there is evidence which suggests
that there is at least some degree of parental
involvement and support in the purchase and use of these
goods. See, e.g., opposer’s Exhibit Nos. 8-9, comprising
young exhibitors’ letters to opposer which actually were
written by the youngsters’ parents.
Nonetheless, on balance we find that applicant has
failed to establish that this du Pont factor, i.e., the
sophistication of purchasers, is entitled to significant
weight in our likelihood of confusion analysis. That is,
although we are not persuaded that these goods are
purchased on impulse or that the purchasers thereof are
unsophisticated, we cannot conclude on this record that
the purchasers of these goods necessarily are so
Opposition No. 109,065
10
sophisticated and so careful, or that the goods are so
expensive and the purchasing process so controlled, that
any likelihood of confusion that otherwise would exist is
eliminated or decreased as a result. Accordingly, we
find that this du Pont factor is essentially neutral in
this case.
The next du Pont factor we consider is “the nature
and extent of any actual confusion.” Applicant’s product
manager, James Benz, testified that he is not aware of
any instances of actual confusion. However, he also
admitted that applicant does not have a formal procedure
for reporting or recording instances of actual confusion.
(Benz Testimony Depo. at 5-6 and 53-54.) Opposer, for
its part, has identified one instance of what it contends
was actual confusion between its mark and applicant’s
mark. Specifically, opposer’s president testified that
he was present at a meeting with one of opposer’s
representatives (identified as Gary Martin) and a
potential new distributor (identified as James
Welgiehousan) at which the following transpired:

So Gary introduced me to Welgiehousan as the
guy who makes Show Bloom. And Welgiehousan
looked at me and said, well, tell me about
this Showboost product. And I said no, not
Showboost, Show Bloom. Oh, yeah, I know what
you’re talking about, what’s Showboost then,
Opposition No. 109,065
11
because I’ve heard of that. And I told him
all I know is that it’s a product similar to
Show Bloom that MoorMan’s has come out with
and, you know, was trying to sell. I don’t
think I said anything else. … And then, you
know, the conversation moved ahead from there.
I – if you’re asking me about confusion, I
think he was – if he wasn’t confused he wasn’t
exactly clear.

(Muzzo Testimony Depo. at 148-49.)
Immediately after this testimony was given at the
deposition, applicant’s counsel objected as follows: “I
object to the witness saying what somebody else thinks.”
In its brief, applicant has maintained the objection:

Even assuming Mr. Muzzo’s ‘story’ was
accurate, it does not show that Mr.
Welgiehousan was confused between SHOWBOOST
and SHOW BLOOM. Mr. Welgiehousan could have
already known about the SHOWBOOST product and
wanted Mr. Muzzo to tell him more about that
product. Clearly, it was pure speculation on
Mr. Muzzo’s part, and speculation on Opposer’s
part, to represent that Mr. Welgiehousan was
confused. Mr. Welgiehousan was already set up
as a Show Bloom distributor. He certainly
knew what product he was going to distribute.
He didn’t need to be told about that product.
It is more likely that he had run into
SHOWBOOST and wanted information on it as a
product competing with SHOW BLOOM. In any
event, Mr. Muzzo’s story testimony was timely
objected to as hearsay.

(Applicant’s brief at 14-15.) In opposer’s reply brief,
opposer counters as follows:

Opposition No. 109,065
12
Mr. Muzzo’s testimony was not merely
speculation nor was it hearsay. The testimony
indicated that based on the conversation Mr.
Muzzo had with Mr. Welgiehousan, Mr. Muzzo
believed that Mr. Welgiehousan was confused.
The statements that [he] attributed to Mr.
Welgiehousan are not being offered for their
truth; rather, from the out of court
statements made by Mr. Welgiehousan, Mr. Muzzo
concluded that the man was confused.

We overrule applicant’s hearsay objection to the
admissibility of Mr. Muzzo’s testimony. The testimony
either is not hearsay, to the extent that it is offered
as evidence of Mr. Muzzo’s opinion as to whether Mr.
Welgiehousan was confused, or else it is admissible under
the “state of mind” exception to the hearsay rule, to the
extent that it is offered to show what opposer contends
was Mr. Welgiehousan’s state of mind, i.e., confusion.
See Fed. R. Evid. 803(3); see also Toys “R” Us, Inc. v.
Lamps R Us, 219 USPQ 340, 345-46 (TTAB 1983).
We agree with applicant, however, that Mr. Muzzo’s
testimony recounting his conversation with Mr.
Welgiehousan falls far short as evidence that Mr.
Welgiehousan actually was confused as to the existence of
a source connection between the parties’ respective
products. See Toys “R” Us, Inc. v. Lamps R Us, supra.
At best, the testimony establishes that Mr. Muzzo is of
the opinion that Mr. Welgiehousan was confused, an
Opposition No. 109,065
13
opinion we find to be based solely on speculation which
is not necessarily borne out by the actual statements
attributed to Mr. Welgiehousan by Mr. Muzzo. Mr.
Welgiehousan’s state of mind cannot readily be determined
from Mr. Muzzo’s testimony; we find that applicant’s
above-quoted speculation, i.e., that Mr. Welgiehousan
simply was asking for information about Showboost as a
competing product, is at least as plausible as Mr.
Muzzo’s speculation that Mr. Welgiehousan was confused.
In short, we find that Mr. Muzzo’s testimony is too
anecdotal and too tenuous to support a finding of actual
confusion. No other evidence of actual confusion having
been made of record, we find that this du Pont factor is
neutral in our likelihood of confusion analysis.
The next, and related, du Pont factor is “the length
of time during and conditions under which there has been
concurrent use without evidence of actual confusion.”
The evidence of record shows that, as of the close of the
testimony periods in this case, the parties had been
concurrently using their marks for three years and three
months. The parties share one common distributor (and
have done so since approximately October 1997), but there
is no evidence as to the volume (if any) of applicant’s
SHOWBOOST product distributed by that distributor. (Benz
Opposition No. 109,065
14
Discovery Depo. at 117.) The parties appear to have
focused their efforts in different marketing and
distribution channels to date, with applicant primarily
using its own sales force to sell directly to farmer-
producers, and opposer primarily using distributors and
retailers. Applicant does not advertise or promote its
SHOWBOOST product separately, but only as part of its
“New Generation Nutrition” specialty product line of
approximately thirty separate products. (Benz Discovery
Depo. at 30, 33, and 99.)
On this record, we are not persuaded by applicant’s
argument that the absence of evidence of actual confusion
in this case is entitled to significant probative weight
in our likelihood of confusion analysis. That is, we
cannot conclude from this record that the length of time
and the circumstances under which the parties have
concurrently marketed their products are such that the
absence of actual confusion is factually surprising or
legally significant. There is no evidence as to the
degree of either party’s market penetration or as to the
extent of the parties’ market overlap, and we accordingly
cannot conclude that there has been any significant
opportunity for actual confusion to have occurred. See
Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768 (TTAB
Opposition No. 109,065
15
1992). In these circumstances, we find that this du Pont
factor is neutral, or that it at best weighs only
slightly in applicant’s favor in this case.
The next factor to consider is the fame of opposer’s
mark. The record shows that, for the years 1990-1997,
opposer’s sales of goods bearing the mark totaled between
$150,000 per year and $350,000 per year, and its
advertising and promotional expenditures totaled $30,000
to $40,000 per year. Opposer argues that these figures
are significant in view of opposer’s relatively small
size and given the “niche” nature of the market for show
feed supplements. Opposer also argues that its customers
have had notable success using opposer’s product in
competitions, and the record shows that they have
provided opposer with testimonials to that effect which
opposer has used in its marketing materials. Opposer
also has obtained testimonials from well-known and
successful professional breeders and exhibitors in the
show animal field, and has used those testimonials in its
advertisements.
After careful consideration of all of the evidence
on this issue, we find that opposer has failed to
establish that its mark is a famous mark. Opposer’s
sales and advertising figures do not rise to the levels
Opposition No. 109,065
16
normally found in connection with famous marks.
Moreover, there is no clear evidence in the record as to
the size of the relevant market or as to opposer’s share
of or prominence in that market;7 absent such evidence, we
cannot conclude that opposer’s sales and advertising
figures, in themselves, are sufficient to establish fame.
See, e.g., Fossil Inc. v. Fossil Group, 49 USPQ2d 1451
(TTAB 1998). Opposer’s evidence regarding customer
testimonials, although sufficient to show that opposer
has developed a degree of goodwill in its mark, fails to
establish that the mark is a famous mark for purposes of
this du Pont factor, or that the mark should be accorded
the wider scope of protection generally accorded to
famous marks. We conclude that this du Pont factor is
neutral in this case.
The next du Pont factor to consider is “the number
and nature of similar marks in use on similar goods.”

7 We note, however, that opposer’s president testified as
follows with respect to opposer’s penetration of the feed
supplement market:

And I commented earlier that everything that we’ve done
since we started has been with an eye toward making that
trademark, that logo, recognizable, making it – I mean our
goal obviously, I don’t think we’ve gotten there yet, but
our goal is to make it household, make it easily
identifiable by anybody in that market.

(Muzzo Testimony Depo. at 121. Emphasis added.)

Opposition No. 109,065
17
There is no evidence that any third party uses or has
used opposer’s exact mark SHOW BLOOM, or any mark
substantially similar thereto, on animal feed
supplements. However, there appear to be several third-
party marks in use which include the word SHOW. See,
e.g., the third-party advertisements for Purina SHOW CHOW
and for SHOWMASTER FEEDS. (Applicant’s Exhibit Nos. 18-
24.) We are not persuaded by opposer’s contention that
these third-party products are not competitive with or in
the same product category as opposer’s SHOW BLOOM
product. This evidence leads us to conclude that the
word SHOW, at least, is relatively diluted as applied to
these goods.8
Finally, we turn to a determination of what we find
to be the key likelihood of confusion factor in this
case, i.e., whether applicant’s mark and opposer’s mark,
when compared in their entireties in terms of appearance,
sound and connotation, are similar or dissimilar in their
overall commercial impressions. The test for confusing
similarity is not whether the marks can be distinguished
when subjected to a side-by-side comparison, but rather
whether the marks are sufficiently similar in terms of

Opposition No. 109,065
18
their overall commercial impression that confusion as to
the source of the goods offered under the respective
marks is likely to result. The focus is on the
recollection of the average purchaser, who normally
retains a general rather an a specific impression of
trademarks. See Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975). The marks at issue may not be
dissected but rather must be considered in their
entireties. However, it is not improper to consider the
component parts of the respective marks as a preliminary
step in the analysis of the similarity of the marks as a
whole. See 3 J.T. McCarthy, McCarthy on Trademarks and
Unfair Competition §23:41 (4th ed. 2001). Likewise, it is
well-settled that one feature of a mark may be more
significant than another, and it is not improper to give
more weight to this dominant feature in determining the
commercial impression created by the mark. See In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed.
Cir. 1985). Finally, where, as in the present case, the
marks would appear on identical goods, the degree of
similarity between the marks which is necessary to
support a finding of likely confusion declines. Century

8 Also, as discussed below, the evidence of record reveals that
the word SHOW is an inherently weak term as applied to show
Opposition No. 109,065
19
21 Real Estate Corp. v. Century Life of America, 970 F.2d
874, 23 USPQ 1698 (Fed. Cir. 1992).
We begin our analysis of the marks by noting, again,
that applicant seeks registration of the mark SHOWBOOST,
in typed form. Opposer’s registered mark is depicted in
special form as “show bloom!”, i.e., as two words, in all
lower case letters, with an exclamation point at the end.
This is also the format in which opposer presents its
mark on its packaging and in much of its literature.
However, opposer also claims common law rights in various
other depictions of its mark. For purposes of our
determination of the similarity or dissimilarity of the
parties’ marks, especially in terms of appearance and
overall commercial impression, we find that the slightly
stylized depiction of opposer’s mark, as registered, is
inconsequential. That is, whether opposer’s mark is
considered as two words or as one compound word, in lower
case or upper case, and with or without an exclamation
point, purchasers readily would perceive the mark as
consisting essentially of the two common words SHOW and
BLOOM. Likewise, despite its depiction in the
application drawing as a compound word, applicant’s mark

feeds such as those involved in this case.
Opposition No. 109,065
20
readily would be perceived as consisting essentially of
the two common words SHOW and BOOST.
Comparing the two marks first in terms of their
respective meanings or connotations, we find that the
marks are identical to the extent that they both begin
with the word SHOW. However, the evidence of record
demonstrates that SHOW is a weak, highly suggestive term
as used in the parties’ respective marks and as applied
to the parties’ feed supplement products. These goods
are designed to be fed to “show animals,” and they have
been referred to generically by opposer’s president
(among others) as a species of “show feeds.” See, e.g.,
Muzzo Testimony Depo. at 10 and 76. Also, as noted
above, there appear to be several third-party marks which
include the word SHOW in use on similar goods, such as
Purina SHOW CHOW and SHOWMASTER FEEDS. Applicant also
has made of record numerous third-party registrations of
marks which include some variation of the word SHOW for
animal feed products. (Applicant’s Exhibit Nos. 25-40.)
Based on this evidence, we find that SHOW is not a
dominant feature of either of the parties’ marks, and
that the mere presence of the word in both marks is
Opposition No. 109,065
21
insufficient, without more, to warrant a finding that the
marks are confusingly similar in their entireties.9
As for the rest of the respective marks, opposer
argues that BLOOM and BOOST are similar in meaning, in
that the definition of BLOOM includes “to flourish, esp.
in youthful beauty, freshness, or excellence…,” “to come
out like a bloom on a plant,” and “to make glowing or
radiant,” while the definition of BOOST includes “to aid
or assist esp. towards progress or increase,” “assistance
or commendation that betters position or enhances
reputation,” and “an uplift or encouragement.”
(Opposer’s main brief at 34, citing to and quoting from
the dictionary excerpts from Webster’s Third New
International Dictionary (1968) made of record as
opposer’s Exhibit No. 110.) Opposer further argues that
“[w]hen combined with the term SHOW, both of the terms
BLOOM and BOOST evoke an extremely similar overall
commercial impression of a supplement product designed to
help an animal improve, grow and flourish.” (Opposer’s
main brief at 34-35.) Similarly, in its reply brief at
12, opposer contends that

9 Opposer essentially concedes as much at page 9 of its reply
brief: “Thus, while SHOW may not be an overly strong term in the
feed market, its incorporation with a term which creates an
overall similar impression still creates an impermissible
likelihood of confusion.”
Opposition No. 109,065
22

…the SHOW portion of the mark provides the
context and helps shape the meaning for the
other term in the marks. The SHOW term brings
the meaning of the BLOOM and BOOST terms even
closer together. Both terms generally have to
do with improvement in the appearance of
something and SHOW focuses that improvement on
the show environment. Thus, SHOW BLOOM
suggests a product that helps an animal’s
health and appearance flourish for show while
SHOWBOOST suggests a product that aids or
assists in increasing the overall healthful
appearance of an animal for show. (Emphasis
in original.)

We are not persuaded that BLOOM and BOOST are as
similar in meaning as opposer contends. Even in terms of
the generalized definitions cited by opposer, the two
words are readily distinguishable. More importantly,
however, we find that BLOOM, as used in opposer’s mark
and as applied to opposer’s goods, would not have the
generalized meaning (i.e., “flourish”) that opposer
attributes to it. Rather, the evidence of record leads
us to conclude that BLOOM has a more specific, readily-
recognized meaning when used in the context of animals
being prepared for show, a meaning which purchasers of
the goods would not ascribe to the word BOOST.
In particular, we note that the above-referenced
dictionary excerpt made of record by opposer (opposer’s
Exhibit No. 110) includes the following highly relevant
Opposition No. 109,065
23
definition of the noun “bloom”: “l: a healthy well-kept
appearance of the coat and skin of a domestic animal.”
Additionally, the record is replete with instances
wherein opposer’s customers, opposer’s competitors, and
opposer itself clearly are using the word “bloom” as a
term of art having that same specific meaning:

Even at a young age, the lambs have more bloom
than ever before;10

... we noticed an overnight excelerated [sic]
creep consuption [sic] and overall bloom;11

... [Show Bloom] had an edge on some others
for more aggressiveness at the feed bunk, more
bloom and just an overall fresher and better
tone appearance;12

Show Bloom’s exclusive formula ... is
specially blended to provide the show animal
the extra bloom expected of winners;13

It also is great for baby lambs getting ready
to sell as they stay healthier and bloom
quicker;14

We use [Show Bloom] for a source of protein,
minerals, and vitamins but most of all for the

10 Opposer’s Exhibit No. 13 (customer letter).

11 Opposer’s Exhibit No. 14 (customer letter).

12 Opposer’s Exhibit No. 19 (letter from customer Bobby May).

13 Opposer’s Exhibit No. 48 (opposer’s brochure text).

14 Opposer’s Exhibit Nos. 48, 67 and 68 (testimonial from
customer Joe Calhoun, reprinted in opposer’s brochures).

Opposition No. 109,065
24
extra added bloom to give you the edge in the
show and sale ring;15

The hair has a fresher, deeper bloom than in
the past;16

... has also given us the extra hair and bloom
to make them champions;17

I saw results in a hurry, lambs showed more
bloom and vigor during the growing period”;18

[Show Bloom] provides just what the name
implies – bloom;19

Show Bloom is a nutritionally complete
supplement and conditioner designed to give
show animals the extra bloom judges notice –
and reward!;20

... and give them the extra bloom to be
winners in the show ring;21

... we find that by using show bloom! there is
a different bloom to the muscle and firmness
to the finish;22

15 Opposer’s Exhibit Nos. 48, 56, 58 and 71 (testimonial from
customer Shane Lindsey, reprinted in opposer’s brochures).

16 Opposer’s Exhibit No. 56 (testimonial from customer Bobby
May, reprinted in opposer’s brochure).

17 Opposer’s Exhibit Nos. 57 and 60 (testimonial from customer
Troy Thomas, reprinted in opposer’s brochures).

18 Opposer’s Exhibit Nos. 67 and 68 (testimonial from customer
Guy Reinarz, reprinted in opposer’s brochures).

19 Opposer’s Exhibit Nos. 67 and 68 (testimonial from customer
J.B. Massey, reprinted in opposer’s brochures).

20 Opposer’s Exhibit No. 73 (opposer’s advertisement text in
Countrymark Co-op brochure).

21 Opposer’s Exhibit No. 73 (additional advertisement text in
Countrymark Co-op brochure).

Opposition No. 109,065
25

Adds shine and bloom to the hair ...;23

Rinse cattle daily. Treat their hair like
human hair. Keep conditioners and oils in
hair. Simply rinsing tends to dry the hair
and scalp out. When this occurs, hair will
not grow and have the bloom you want it to
have;24

You will love how STAR-GLO gives your animal
better hair growth, healthier skin and an
increased appetite to achieve ultimate show
bloom;25 and

Keeps show hogs fresh and keeps their bloom
during stress of show season.26

Based on the above-quoted dictionary definition and
on this evidence of how opposer and others commonly use
the term, we find that BLOOM, unlike BOOST, is a term of
art which has a specific, readily-recognized meaning as
applied to show animals and as used in connection with
the goods involved in this case; it refers specifically

22 Opposer’s Exhibit No. 83 (testimonial from Jimmy Strube,
reprinted in opposer’s advertisement in The National Livestock
Exhibitor magazine).

23 Opposer’s Exhibit No. 84 (testimonial from Chad Bush,
reprinted in opposer’s advertisement in The National Livestock
Exhibitor magazine).

24 Opposer’s Exhibit No. 86 (article/promotional piece by Dan
Leddy in Purple Circle magazine; see Muzzo Testimony Depo. at
99-101).

25 Opposer’s Exhibit No. 90 (advertisement in Sullivan Supply
catalog for feed supplement called Star*Glo).

Opposition No. 109,065
26
to the condition of an animal’s coat. Purchasers
encountering opposer’s mark on opposer’s goods will
ascribe this specific meaning to BLOOM, rather than the
more generalized meaning for which opposer argues.
BOOST, by contrast, has no such specific meaning as
applied to these goods, but carries instead the more
generalized connotation of “assistance” or “increase.”
Nor are the two terms brought any closer together in
meaning by virtue of their being combined with the highly
suggestive term SHOW. Opposer’s mark SHOW BLOOM will be
readily understood by purchasers to refer specifically to
the bloom on the coat of a show animal which will result
from use of opposer’s product. Applicant’s mark
SHOWBOOST carries no such specific meaning, connoting
more generally that applicant’s product will help improve
the overall condition of an animal being prepared for
show.
For these reasons, and especially due to the
presence in opposer’s mark of the term of art BLOOM and
the absence of that term of art from applicant’s mark, we
find that applicant’s mark and opposer’s mark are more
dissimilar than similar in terms of meaning.

26 Opposer’s Exhibit No. 91 (advertisement in Valley Vet Supply
catalog for feed supplement product called Barrow Booster).

Opposition No. 109,065
27
We also find that the marks are more dissimilar than
similar when compared in terms of appearance. Opposer
argues that the marks look similar because they both
consist of nine letters, seven of which are identical
including the first five letters and two of the last four
letters, and because both marks begin with the word SHOW
followed by a second, five-letter word beginning with the
letter “B” and including a double “O.” Although
opposer’s observations certainly are correct, we are not
persuaded that purchasers would engage in this sort of
letter-by-letter analysis and comparison when viewing the
marks. Rather, in viewing the marks, purchasers will
read the words comprising the marks. The marks obviously
look similar to the extent that they both start with the
highly suggestive27 word SHOW, but BLOOM and BOOST are
common words which would be readily recognized as such
and which are readily distinguishable from each other in
terms of appearance, notwithstanding their shared
letters. We find that when the marks are viewed in their
entireties in terms of appearance, their dissimilarities
outweigh their similarities.
Comparing the marks next in terms of sound, we find
that the marks are similar to the extent that (1) they

27 See discussion supra at pp. 18-19.
Opposition No. 109,065
28
both are comprised of two syllables, (2) the first
syllable in applicant’s mark (sho) sounds identical to
the first syllable in opposer’s mark, and (3) the second
syllable of each mark begins with “b” and has the
identical-sounding “ü” vowel sound. We further find that
the marks are dissimilar to the extent that (1) the “b”
in opposer’s mark is followed by an “l” which gives
opposer’s mark, but not applicant’s mark, a “bl” sound at
the beginning of the second syllable, and (2) applicant’s
mark ends in an “st” sound while opposer’s mark ends in
an “m” sound. We also note, again, that each of the
marks is comprised of, and would be heard as, two
readily-recognizable words. SHOW sounds the same in both
marks, but BLOOM and BOOST, despite their shared “b” and
“ü” sounds, are two different-sounding words when
considered in their entireties. We find that the
differences in sound between the words BLOOM and BOOST
suffice to render the marks, as a whole, dissimilar
rather than similar in terms of sound.
We are not persuaded by opposer’s argument that the
similarity in the sound of the two marks is increased or
exacerbated by the fact that the goods often are marketed
by means of word-of-mouth recommendations, without
accompanying visual depictions of the marks, at livestock
Opposition No. 109,065
29
shows which by their nature are very noisy. First, there
is no clear evidence of record from which we can find
that the ambient noise at livestock shows typically is so
great that normal conversation would be hindered to the
extent that purchasers would not be able to aurally
distinguish SHOW BLOOM from SHOWBOOST. The sole evidence
cited by opposer on this question is the following
testimony of opposer’s president Mr. Muzzo:

And one of the things we talked about when we
first saw this Showboost product – in fact, I
think it was – well, I forget who said
something, you know, he said, you know, if
you’re standing in a barn and if there is
cattle or if there is whatever and there is
people talking, and they usually have
forklifts or, you know, mechanized, they pick
up all the old hay and whatever, and you’re
talking and there is a kind of this din, and
you talk about Show Bloom or Showboost, it
would be real easy to mishear it, I guess, if
that’s such a thing, or misunderstand it.

(Muzzo Testimony Depo. at 125-26.) This testimony fails
to support the factual proposition for which opposer
cites it. These statements regarding the amount of noise
in the barns are the hearsay statements of an
unidentified person which are, in any event, too
conditional and conjectural to merit significant
probative value.
Opposition No. 109,065
30
Second, the record as a whole does not support
opposer’s contention that these conversations at
livestock shows are likely to take place without the aid
of any visual depictions of the marks. Mr. Muzzo
testified: “And one of the things that we do at every
show that has animals is we go through the barns, at best
we talk to the people, and at worst we leave them
literature on their show box or in their stall.” (Muzzo
Testimony Depo. at 81.) Likewise:

So what we do is we’ll take literature and
we’ll take posters and we’ll tape them to
walls and to columns. Generally we like to
put them by doors so people see them. And
we’re not the only ones that do that. In some
of the bigger shows there will be literature
and posters and handouts and everything else
that you can stick on a wall all over the
place. I mean we obviously try to get our
name out. And it’s real important to us, and
we’ve tried to make – we’ve tried to get out
as much tangible literature and just tangible
property, tangible stuff so that we imprinted
that logo on people’s minds.

(Id. at 82.) Mr. Muzzo also testified that in every row
of the barn there might be a half-dozen stalls in which
could be seen a bag or bucket of opposer’s product in its
original packaging. (Id. at 83-86.)
Finally, if we put aside the problems with opposer’s
proof and assume that the barns in fact are loud and that
the verbal exchanges which constitute opposer’s word-of-
Opposition No. 109,065
31
mouth marketing are accompanied by few or no visual
depictions of the marks, we nonetheless find that, even
in the circumstances posited by opposer, SHOW BLOOM and
SHOWBOOST are sufficiently dissimilar in terms of sound
that they would not be aurally confused.
When we compare the marks in their entireties as to
appearance, sound and meaning, we find that their
dissimilarities outweigh their similarities, and that the
marks likewise are dissimilar rather than similar in
terms of their overall commercial impressions.
In summary, after careful consideration of the
evidence of record with respect to the relevant du Pont
factors and the parties’ arguments with respect thereto,28

28 Opposer also has argued that applicant adopted its mark
either in bad faith or with reckless disregard of opposer’s
prior rights in opposer’s mark, inasmuch as applicant had actual
knowledge of opposer’s mark prior to applicant’s adoption of its
own mark, and because, despite such knowledge and despite
applicant’s status as a “trademark-savvy” company, applicant
failed to conduct a complete trademark search prior to adopting
its mark and applying for registration. The defendant’s alleged
bad faith adoption of its mark is not expressly included among
the du Pont likelihood of confusion evidentiary factors, but if
evidence of such bad faith is present in the record, we
certainly may consider it. In this case, we find no such bad
faith on applicant’s part. Even assuming that opposer is
correct in contending that applicant had actual knowledge of
opposer’s mark prior to applicant’s adoption of its own mark (an
assumption which is by no means mandated by the evidence of
record), there is absolutely no evidence that applicant adopted
its mark with the intention of trading on opposer’s goodwill.
Likewise, even assuming (without so finding) that applicant
failed to conduct a complete trademark search, we find that such
failure is irrelevant to our likelihood of confusion analysis in
this case. The case cited by opposer, International Star Class
Opposition No. 109,065
32
we conclude that there is no likelihood of confusion in
this case. That is, notwithstanding the fact that the
parties are using their respective marks on identical
goods which are marketed in the same trade channels and
to the same purchasers, we find that the marks are too
dissimilar, especially in terms of their meanings and
their overall commercial impressions, to support a
determination that confusion is likely. We find that
opposer’s mark has a rather specific connotation and
commercial impression as applied to the goods, neither of
which are shared by applicant’s mark. Moreover, we find
that opposer’s mark is somewhat suggestive, and that it
is not entitled to a scope of protection which is so wide
as to preclude registration of applicant’s dissimilar
mark. See generally Kellogg Co. v. Pack’Em Enterprises
Inc., 14 USPQ2d 1545 (TTAB 1990), aff’d, 951 F.2d 330, 21
USPQ2d 1142 (Fed. Cir. 1991).
Decision: The opposition is dismissed.

Yacht Racing Association v. Tommy Hilfiger U.S.A. Inc., 146 F.3d
66, 46 USPQ2d 1492 (2d. Cir. 1998), is a civil infringement and
unfair competition case which is inapposite to this opposition
proceeding both as to its facts and as to the applicable legal
standards. In short, to the extent that the applicant’s intent
in adopting its mark is a factor to be considered in our
likelihood of confusion analysis, we deem that factor to be
neutral in this case.

Opposition No. 109,065
33