Flowers Bakeries Brands, Inc.v.Independent Marketing Alliance LP

Trademark Trial and Appeal Board

Jul 25, 2008

No. 91167151 (T.T.A.B. Jul. 25, 2008)

Mailed: July 25, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Flowers Bakeries Brands, Inc.
v.
Independent Marketing Alliance LP
_____

Opposition No. 91167151
to application Serial No. 78432642
_____

Theodore H. Davis, Jr., Olivia Maria Baratta and Alicia
Grahn Jones of Kilpatrick Stockton LLP for Flowers Bakeries
Brands, Inc.

Martyn B. Hill and Bartt G. Thompson of Pagel, Davis & Hill,
P.C. for Independent Marketing Alliance LP.
______

Before Hairston, Cataldo and Mermelstein,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

On June 9, 2004 applicant, Independent Marketing
Alliance LP, filed an application to register on the
Principal Register the mark COBBLESTONE MARKET, in standard
character form, based upon its assertion of a bona fide
intention to use the mark in commerce for the following
goods, as amended: “deli meats; cooked deli items, namely,
soups, cheese; refrigerated salads except macaroni, rice,
and pasta salad; pickles; bagged potato chips, frozen soups;
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Opposition No. 91167151
2
frozen entrees, namely, entrees consisting primarily of
meat, fish, poultry or vegetables,” in International Class
29.1
Registration has been opposed by Flowers Bakeries
Brands, Inc. (“opposer”). As grounds for opposition,
opposer asserts that it is the owner of the following
COBBLESTONE MILL marks, previously used and registered on
the Principal Register, for the following goods:

for “bakery products – namely, bread buns and rolls” in
International Class 30;2
COBBLESTONE MILL
for “bakery products, namely bread, buns and rolls” in
International Class 30;3 and

1 Application Serial No. 78432642. Applicant has disclaimed the
exclusive right to use the term “MARKET.”
2 Registration No. 1326230 issued on March 19, 1985. Section 8
affidavit accepted; Section 15 affidavit acknowledged. Renewed.
3 Registration No. 1991258 issued on August 6, 1996. Section 8
affidavit accepted; Section 15 affidavit acknowledged. Renewed.
Opposition No. 91167151
3

for “bakery products” in International Class 30.4
Opposer argues in its amended notice of opposition that it
has made use of its COBBLESTONE MILL marks in connection
with the above goods since prior to the filing date of
applicant’s intent-to-use application; and that applicant’s
mark, COBBLESTONE MARKET, when used on applicant’s goods so
resembles opposer’s COBBLESTONE MILL marks for its recited
goods as to be likely to cause confusion, to cause mistake,
and to deceive. Opposer further argues that applicant
committed fraud on the United States Patent and Trademark
Office (USPTO) by falsely averring a bona fide intent to use
its mark in connection with certain goods recited in the
involved application.
Applicant’s answer consists of a general denial of the
allegations in the amended notice of opposition.5

4 Registration No. 2762164 issued on September 9, 2003 with a
disclaimer of “QUALITY BREADS, A FAMILY OF BAKERS SINCE 1919, SAN
FRANCISCO SOURDOUGH” and “RECIPE” and the following lining
statement: “The lining is a feature of the mark and does not
indicate color.”
5 In addition, applicant asserts as “affirmative defenses” (1)
that the amended notice of opposition fails to state a claim upon
which relief can be granted; and (2) that “Applicant’s mark, when
used correctly with Applicant’s goods is not likely to cause
confusion with the mark for Opposer’s goods.” As to the former,
inasmuch as applicant did not file a motion to dismiss under Fed.
Opposition No. 91167151
4
The Record
By operation of Trademark Rule 2.122, 37 C.F.R. §2.122,
the record in this case consists of the pleadings and the
file of the involved application. In addition, during its
assigned testimony period, opposer submitted the testimony
depositions, with exhibits, of Janice Anderson, its vice
president of marketing. Opposer also a filed a notice of
reliance.
During its assigned testimony period, applicant
submitted the testimony deposition, with exhibits, of Robert
Planck, its president, and the testimony deposition, with
exhibits, of Robert Fontana, its director of marketing and
general merchandising. Applicant also filed a notice of
reliance.
In addition, the parties stipulated to treat the
discovery depositions of Ms. Anderson, Mr. Planck and Mr.
Fontana as trial testimony herein. As a result, the parties
have submitted such discovery depositions as part of their
respective notices of reliance.6

R. Civ. P. 12(b)(6) by means of which the sufficiency of the
amended notice of opposition may be tested, such “affirmative
defense” will be given no further consideration. Applicant’s
second “affirmative defense” is deemed to be an amplification of
applicant’s denials of the allegations contained in the amended
notice of opposition.
6 We note with approval the parties’ utilization of stipulated
evidence in light of the savings in time and expense for the
parties as well as the judicial economy afforded the Board
thereby. See Target Brands Inc. v. Hughes, 85 USPQ2d 1676 (TTAB
2007).

Opposition No. 91167151
5
Opposer and applicant filed main briefs on the case, and
opposer filed a reply brief.
Facts
Since 1983, opposer has used its COBBLESTONE MILL marks
in connection with bakery goods.7 Opposer’s goods under its
COBBLESTONE MILL marks are featured on grocery store shelves
and display racks, as well as deli shops.8 Opposer
advertises its goods under the COBBLESTONE MILL marks in
displays in grocery stores, in nationally distributed
magazines, at cooking events, and on its Internet websites
flowersfoods.com and cobblestonemill.com.9 In 2006, opposer
spent $400,000 on advertising goods under the COBBLESTONE
MILL marks and in 2007, opposer spent $600,000 on such
advertisements.10 Sales of opposer’s goods under its
COBBLESTONE MILL marks were $100 million in 2005 and $105
million in 2006.11
Applicant consists of six independent food service
distributors12 and facilitates branding, product development
and marketing support for its member companies.13 Applicant
began using the COBBLESTONE MARKET mark on goods as early as

7 Notice of Reliance, Exhibit 1.
8 Anderson Discovery Deposition, 93-94.
9 Anderson Testimony. P. 9-10, 46-47, Anderson Discovery
Deposition, p. 24, 53, Exhibit 1, Notice of Reliance, Exhibit 9.
10 Anderson Testimony, p. 76.
11 Anderson Discovery Deposition, p. 26.
12 Planck Discovery Deposition, p. 12.
13 Planck Testimony, p. 9.
Opposition No. 91167151
6
2004.14 By September 2007, applicant’s annual sales of
goods under its COBBLESTONE MARKET mark were $80 million.15
Opposer’s Standing and Priority of Use
Because opposer has properly made its pleaded
registrations of record, we find that opposer has
established its standing to oppose registration of
applicant’s mark. See Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); and Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185 (CCPA 1982). Moreover, because opposer’s pleaded
registrations are of record, Section 2(d) priority is not an
issue in this case as to the COBBLESTONE MILL marks therefor
and goods and services covered thereby. See King Candy Co.
v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108
(CCPA 1974). We note in addition that applicant does not
contest either opposer’s standing to bring this proceeding
or priority of use.
Likelihood of Confusion
Our likelihood of confusion 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. See In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also Palm

14 Fontana Testimony, p. 24-27.
15 Planck Testimony, p. 9.

Opposition No. 91167151
7
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
We will concentrate our discussion of the issue of
likelihood of confusion on that registration of opposer’s
which is closest to the mark for which applicant is seeking
registration for the most similar goods, namely, opposer’s
Registration No. 1991258 for COBBLESTONE MILL in standard
character form for “bakery products, namely bread, buns and
rolls” in International Class 29.
The Marks
In this case, opposer’s COBBLESTONE MILL mark is
similar to applicant’s COBBLESTONE MARKET mark in that both
share the identical word COBBLESTONE as their first term.
We find that the word COBBLESTONE, being the first term in
both parties’ marks, is the dominant feature in the
commercial impression created thereby. See Presto Products,
Inc. v. Nice-Pak Products Inc., 9 USPQ2d 1895, 1897 (TTAB
1988)(“…[it is] a matter of some importance since it is
often the first part of a mark which is most likely to be
impressed upon the mind of a purchaser and remembered.”).
See also Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin,
supra, (“Veuve” is the most prominent part of the mark VEUVE
Opposition No. 91167151
8
CLICQUOT because “veuve” is the first word in the mark and
the first word to appear on the label). Furthermore, the
word MILL in opposer’s mark refers back to, and reinforces,
the first word COBBLESTONE. Likewise, the word MARKET in
applicant’s mark refers back to, and reinforces,
COBBLESTONE. As a result, both marks as a whole connote
rustic structures made from cobblestones. Thus, we find
that the word COBBLESTONE in the parties’ marks contributes
more significantly to their commercial impressions than the
terms MILL and MARKET.
In terms of appearance, sound, connotation and overall
commercial impression, we find that the similarities between
the parties’ marks which result from the presence of
COBBLESTONE as their first term outweigh the dissimilarities
resulting from the different second terms, MILL and MARKET.
Viewing the marks in their entireties, we find that they are
similar because the word COBBLESTONE is the dominant, and
identical, feature of both.
In view of the similarities between opposer’s
COBBLESTONE MILL mark and applicant’s COBBLESTONE MARKET
mark, this du Pont factor favors opposer.
Strength of Opposer’s COBBLESTONE MILL Mark
With regard to the strength of the COBBLESTONE MILL
mark, we note opposer’s contention that its mark has
“acquired a high degree of recognition, fame, and
Opposition No. 91167151
9
distinctiveness”16 as applied to its goods. Opposer’s
evidence of such recognition mainly consists of sales and
advertising numbers, as well as testimony regarding consumer
recognition and the nature and extent of opposer’s
advertising. However, opposer provides no evidence to
support its assertions regarding the extent to which
consumers recognize its COBBLESTONE MARKET mark, and the
testimony of its officers regarding such recognition is
insufficient to support its claim that the COBBLESTONE
MARKET mark has achieved widespread notoriety.
Furthermore, opposer’s sales and advertising figures,
while indicating that opposer has enjoyed a high degree of
success in marketing and selling its goods under the
COBBLESTONE MARKET mark, fall short of establishing that
such mark is famous. We note, for example, that opposer’s
$600,000 annual advertising figure is very low, compared to
annual advertising figures for other marks we have found to
be famous. See, for example, Motion Picture Association of
America, Inc. v. Respect Sportswear Inc., 83 USPQ2d 1555
(TTAB 2007)(opposer’s member annually spent 4 billion
dollars on advertisements and promotion). Thus, opposer’s
evidence falls short of demonstrating that the successful
marketing of opposer’s COBBLESTONE MARKET products
translates into widespread recognition of the mark.

16 Brief, p. 3.
Opposition No. 91167151
10
Accordingly, we find on this record that the evidence
falls short of establishing that opposer’s mark COBBLESTONE
MARKET is famous for purposes of our likelihood of confusion
determination.
Nevertheless, we find that the evidence is sufficient
to show that opposer’s mark COBBLESTONE MARKET has achieved
at least a degree of recognition and strength in the market
and thus is not a weak mark that is entitled only to a very
narrow scope of protection, as argued by applicant. In
coming to this determination, we have considered all of the
evidence relevant thereto, including applicant’s evidence,
more fully discussed below, of third-party use and
registration of various “COBBLESTONE” formative marks.
Registration and Use of Similar Marks
In its brief, applicant identifies third-party uses of
various COBBLESTONE marks and refers to a list of third-
party applications and registrations in a summary from the
USPTO’s Trademark Electronic Search System (TESS) database.
This summary, however, does not make the listed
registrations of record. To make third-party registrations
of record, a party must submit a copy of the registration or
a printout of such registration from the USPTO’s electronic
database. In re Duofold, Inc., 184 USPQ 638, 640 (TTAB
1974) (“[T]he submission of a list of registrations is
insufficient to make them of record.”). Furthermore,
Opposition No. 91167151
11
applicant’s submission of third-party applications is
entitled to no probative value because applications are only
evidence that an applicant has filed for registration of a
mark. See In re Phillips-Van Heusen Corp., 63 USPQ2d 1047,
1049 n.4 (TTAB 2002).17
In addition, applicant’s submission of the truncated
results of two searches of the GOOGLE Internet search engine
of “cobblestone” and “cobblestone food” provide very little
information regarding the nature and extent of use, if any,
of the terms retrieved thereby. It is settled that
truncated results from search engines are entitled to little
weight. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82
USPQ2d 1828, 1833 (Fed. Cir. 2007):
Bayer asserts that the list of GOOGLE search
result summaries is of lesser probative value than
evidence that provides the context within which a
term is used. We agree. Search engine results—
which provide little context to discern how a term
is actually used on the webpage that can be
accessed through the search result link—may be
insufficient to determine the nature of the use of
a term or the relevance of the search results to
registration considerations.

Similarly, in this case the results of applicant’s GOOGLE
search provide insufficient information regarding the

17 We also point out that, even if properly made of record,
third-party registrations are not evidence that the marks shown
therein are in use. See Smith Bros. Mfg. Co. v. Stone Mfg. Co.,
476 F.2d 1004, 177 USPQ 462 (CCPA 1973). Thus, they have no
probative value with respect to the du Pont factor of the number
and nature of similar marks that are in use for similar goods and
services.

Opposition No. 91167151
12
asserted use of COBBLESTONE formative marks by third parties
to support a finding that such term is weak as applied to
food products. Likewise, applicant’s submission of
electronic mail messages listing asserted third-party uses
and registrations of various COBBLESTONE formative marks is
insufficient to make such registrations of record or provide
relevant information regarding such asserted use. See Id.
and In re Duofold, Inc., supra.
As a result, we are not persuaded that opposer’s
COBBLESTONE MILL mark is weak or otherwise entitled only to
a narrow scope of protection.
The Goods
With respect to the goods, it is well established that
the goods or services of the parties need not be similar or
competitive, or even offered through the same channels of
trade, to support a holding of likelihood of confusion. It
is sufficient that the respective goods or services of the
parties are related in some manner, and/or that the
conditions and activities surrounding the marketing of the
goods or services 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 Hilson Research, Inc. v. Society for Human
Resource Management, 27 USPQ2d 1423 (TTAB 1993); and In re
Opposition No. 91167151
13
International Telephone & Telephone Corp., 197 USPQ 910, 911
(TTAB 1978).
We base our determination of the similarity or
dissimilarity between the parties’ respective goods, as we
must, upon the goods recited in the involved application and
opposer’s above-noted registration for its COBBLESTONE MILL
mark. See 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 that regard, we observe that, as identified,
opposer’s goods under its COBBLESTONE GRILL mark are food
items in the nature of “bakery products, namely bread, buns
and rolls.” Applicant’s goods, as identified in its subject
application, are also food items in the nature of “deli
meats; cooked deli items, namely, soups, cheese;
refrigerated salads except macaroni, rice, and pasta salad;
pickles; bagged potato chips, frozen soups; frozen entrees,
namely, entrees consisting primarily of meat, fish, poultry
or vegetables.” Because neither opposer’s nor applicant’s
identification of goods articulates any limitations as to
the type, ethnicity, or cuisine of the food items provided
under their marks, we must presume that applicant’s deli
meats and deli items, salads, pickles, chips, frozen soups
and entrees as well as opposer’s bread, buns and rolls
Opposition No. 91167151
14
encompass any and all foods typically identified thereby.
See Id. See also Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990) (“The authority is legion that the question of
registrability of an applicant’s mark must be decided on the
basis of the identification of goods set forth in the
application regardless of what the record may reveal as to
the particular nature of an applicant’s goods, the
particular channels of trade or the class of purchasers to
which the sales of goods are directed.”) As a result, we
find that opposer’s recited bread, buns and rolls include
those that would be suitable for use to make sandwiches with
applicant’s deli meats and cheese, and serve with
applicant’s soups, refrigerated salads, pickles and bagged
potato chips. In so finding, we note that bread, buns and
rolls are commonly understood to be used, served, and eaten
with deli meats, chips, salads, pickles and soups. See In
re Colonial Stores, Inc., 216 USPQ 793, 794 (TTAB 1982)
(COUNTRY PRIDE for bread found confusingly similar to
COUNTRY PRIDE for prepared meat products); and In re
Martin’s Famous Pastry Shoppe, Inc., 221 USPQ 364, 366-7
(TAB 1984)(MARTIN’S FAMOUS PASTRY SHOPPE INC. for baked
goods found confusingly similar to MARTIN’S for cheese). In
addition, applicant’s president, Robert Planck, acknowledged
Opposition No. 91167151
15
in his discovery deposition that companies purchase and use
both parties’ goods together:
Q. Okay. So, for sandwiches, the company might
provide the components for a sandwich?
A. It’s possible an operator would buy all the
components for a sandwich, including [opposer’s]
breads distributed through our companies.
*****
Q. Okay. Would you consider sandwiches and
bread to be related items?
A. They are components that somebody used
together or used separately; so, you know, there
is some relationship between those, as there is
between mustard and ham and mustard and bread.
They could be used together under some
circumstances.
Q. Cheese and bread as well?
A. Any item that could conceivable use bread
could be related to any other item, including cheese.
*****
Q. Would your customers purchase deli meats and
bread during the same time period?
A. Our customers would purchase all their use
items, including chemicals, foods and nonfoods,
Opposition No. 91167151
16
during a similar period of time; however, that
would be defined by their sales or purchase cycle.
Q. Okay. Would that also apply to mustard and
bread?
A. Yes, it would.
Q. Cheese and bread?
A. It would apply to any product that they would
consume and use in their business.18
Thus, the testimony of applicant’s own president further
establishes a relationship between bread products and deli
meats, cheeses, and other sandwich items.
In view of the related nature of opposer’s goods and
those of applicant, this du Pont factor also favors opposer.
Channels of Trade
Because of our finding that the above goods are
related, and because there are no recited restrictions as to
their channels of trade or classes of purchasers, we must
assume that the goods are available in all the normal
channels of trade to all the usual purchasers for such
goods, and that the channels of trade and the purchasers for
opposer’s goods as well as applicant’s goods would be the
same. See Interstate Brands Corp. v. McKee Foods Corp., 53
USPQ2d 1910 (TTAB 2000). See also Octocom Systems, Inc. v.
Houston Computers Services Inc., supra. See also Paula

18 Planck Discovery Deposition, p. 49, 66-67.
Opposition No. 91167151
17
Payne Products v. Johnson Publishing Co., supra. In view of
the foregoing, we are not persuaded by applicant’s arguments
regarding, for instance, differences in the sections of
grocery stores in which the parties’ goods will be
encountered, or other asserted differences in the channels
of trade of the involved goods.
We find that, as a result of the foregoing, this du
Pont factor also favors opposer.
Actual Confusion
Another du Pont factor discussed by the parties is the
lack of instances of actual confusion. Applicant asserts
that the absence of actual confusion since 2004 suggests no
likelihood of confusion. However, it is well-settled that
it is not necessary to show actual confusion in order to
establish likelihood of confusion. See Weiss Associates
Inc. v. HRL Associates Inc. 902 F.2d 1546, 223 USPQ 1025
(Fed. Cir. 1990). Thus, this du Pont factor is neutral.
Summary
We have carefully considered all of the evidence
pertaining to priority of use and the relevant du Pont
factors, as well as all of the parties’ arguments with
respect thereto, including any evidence and arguments not
specifically discussed in this opinion.
We conclude that opposer has established its standing
to bring this proceeding; its priority of use; and that a
Opposition No. 91167151
18
likelihood of confusion exists between its COBBLESTONE MILL
mark and applicant’s COBBLESTONE MARKET mark, as used in
connection with their respective goods. To the extent that
any of applicant’s points raise a doubt about our
conclusion, all doubt on the issue of likelihood of
confusion must be resolved in favor of the prior user and
against the newcomer. See San Fernando Mfg. Co. v. JFD
Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 2
(CCPA 1977).
Fraud
Given our determination that there is a likelihood of
confusion herein, we decline to reach a determination on the
question of fraud in this proceeding.
DECISION: The opposition is sustained on the ground of
priority and likelihood of confusion, and registration to
applicant is refused.