Franciscan Vineyards, Inc.v.Domaines Pinnacle, Inc.

Trademark Trial and Appeal Board

Oct 16, 2013

No. 91178682 (T.T.A.B. Oct. 16, 2013)

Mailed:
October 16, 2013

United States Patent and Trademark Office
Trademark Trial and Appeal Board
________

Franciscan Vineyards, Inc.
v.
Domaines Pinnacle, Inc.
________
Opposition No. 91178682
to application Serial No. 78783236
_______
John M. Rannells, Stephen L. Baker, Linda Kurth and Ryan A. McGonigle of
Baker and Rannells PA for Franciscan Vineyards, Inc.
Domaines Pinnacle, Inc., pro se.1
_______
Before Quinn, Lykos and Hightower, Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
On December 30, 2005, Domaines Pinnacle, Inc. (“applicant”), a Canadi-
an corporation, filed an intent-to-use application to register the mark dis-
played below

1 Based on a conflict of interest, on April 20, 2009, applicant’s attorney withdrew as
legal counsel in this proceeding. In accordance with Board procedure, applicant in-
formed the Board on May 26, 2009 that it intended to represent itself in this proceed-
ing.
This Opinion is Not a
Precedent of the TTAB
Opposition No. 91178682

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for “[a]pple juices and apple-based non-alcoholic beverages” in International
Class 33.2 The description of the mark is as follows: “The mark consists of [a]
drawing of an apple in reverse image with a snowflake on top of the apple
above the words Domaine Pinnacle. The word Domaine is on top of Pinnacle.”
In addition, the application includes a translation statement (“The foreign
wording in the mark translates into English as estate.”) as well as a disclaim-
er of the word DOMAINE.
Franciscan Vineyards, Inc. (“opposer”) opposed the registration of ap-
plicant’s mark on the grounds of priority of use and likelihood of confusion
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),3 with opposer’s
previously used and registered mark PINNACLES in standard character for-

2 Application Serial No. 78783236, filed December 30, 2005 pursuant to Section 1(b)
of the Trademark Act.

3 Opposer also asserted a claim that applicant lacks a bona fide intent to use the
mark in commerce for the goods identified in the application based on the allegation
that “[a]pplicant’s business is limited to the manufacture and sale of alcoholic bever-
ages derived from apples,” and a claim that applicant’s applied-for mark is “primarily
geographically descriptive.” See First Amended Notice of Opposition (filed September
24, 2008), ¶¶ 13-14, and 16. Insofar as opposer has not argued these claims in its
brief, in accordance with the Board’s usual practice we find those claims to have been
waived by opposer. See e.g., Knight Textile Corp. v. Jones Investment Co., 75 USPQ2d
1313, 1314 n.4 (TTAB 2005).
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mat for “wine” in International Class 33, as well as “variations thereof.”4 Op-
poser’s First Amended Notice of Opposition, ¶ 1. While opposer did not specifi-
cally plead ownership of the registered mark PINNACLES RANCHES5 for
“wines” in its notice of opposition, insofar as applicant did not object to the in-
troduction of a certified status and title copy of the registration at trial, we
hereby deem the pleadings amended by implied consent. See Fed. R. Civ. P.
15(b).
In its answer to the amended notice of opposition,6 applicant admitted
opposer’s ownership of its pleaded registration but otherwise denied the sali-
ent allegations therein.
I. The Record
The record includes the pleadings, and pursuant to Trademark Rule
2.122(b), applicant’s application file. Applicant neither introduced evidence at
trial nor filed a brief.
Opposer properly made of record the following notices of reliance:
Notice of Reliance No. 1 comprised of certified status and title
copies of opposer’s pleaded Registration No. 997378 for the mark
PINNACLES for “wines” and Registration No. 4072330 for the

4 Registration No. 997378, registered on November 5, 1974 on the Principal Register.
The registration alleges May 12, 1971 as the date of first use anywhere and in com-
merce; renewed.
5 Registration No. 4072330, registered on December 20, 2011, alleging May 2004 as
the date of first use anywhere and in commerce. The term RANCHES is disclaimed.
6 Opposer’s first amended notice of opposition is the operative complaint in this case.
See January 13, 2009 Board Order.
Opposition No. 91178682

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mark PINNACLES RANCHES for “wines” with a disclaimer of
RANCHES;7

Notice of Reliance No. 2 comprised of the file wrapper for appli-
cant’s abandoned application Serial No. 76596876 for the mark
DOMAINE PINNACLE and design;

Notice of Reliance No. 3 comprised of dictionary and glossary def-
initions of the terms “domaine” and “estate;” and

Notice of Reliance No. 4 comprised of printouts from applicant’s
website, www.domainepinnacle.com.

Opposer also introduced the following testimony depositions:
Juan Fonseca, opposer’s Director of Marketing for the Estancia
and Mark West wine brands for Constellation Brands, Inc.,8 with
Exhibits 1-8 attached thereto; and

Lou Applebaum, Vice President of Business Development for
Constellation Brands, Inc., with Exhibits 1-9 attached thereto.

III. The Parties
Opposer is a wholly-owned subsidiary of Constellation Brands, Inc., an
international wine company and U.S. beer importer. Applebaum Deposition,
8:15-19, 9:25 and 10:2; Fonseca Deposition, 10:6-7. Other subsidiaries falling
under opposer’s parent umbrella include Inniskillin and Jackson-Triggs, “very
well-known” wine brands/producers located in Canada, as well as Growers Ci-
der, a Canadian cider producer. Fonseca Deposition, 11:20-12:12. Opposer’s
PINNACLES and PINNACLES RANCHES wines are produced by the Estan-
cia Winery located in Soledad, California. Fonseca Deposition, 10:8-17.

7 The mark PINNACLES RANCHES registered during the course of this proceeding
on December 20, 2011.
8 Opposer is a wholly-owned subsidiary of Constellation Brands, Inc.
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Applicant is “a family-owned orchard and cidery” located in Quebec,
Canada on the southern slopes of Pinnacle Mountain near the village of Fre-
lighsburg. Opposer’s Notice of Reliance No. 4. Applicant’s website shows the
products bearing the involved mark identified as “ice apple wine.” Id.
IV. Standing
Opposer has demonstrated through the certified title and status copies
made of record with its first notice of reliance that it is the owner of registra-
tions for the marks PINNACLES and PINNACLES RANCHES, and that both
registrations are valid and subsisting. Because opposer’s registrations are of
record, opposer has established its standing. See Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Indus-
tries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA
1982).
V. Section 2(d) Claim
We will now consider opposer’s Section 2(d) claim.
A. Priority
With regard to both of opposer’s marks PINNACLES and PINNACLES
RANCHES, priority is not in issue in view of opposer’s ownership of valid and
subsisting registrations for both marks for goods identified as “wine.” See
King Candy, Inc. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108
(CCPA 1974).
Opposition No. 91178682

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B. Likelihood of Confusion
The remaining issue in this case is likelihood of confusion. As noted
earlier, applicant neither submitted evidence during its assigned testimony
period nor filed a brief. Nonetheless, opposer, as plaintiff in this proceeding,
bears the burden of establishing that there is a likelihood of confusion by a
preponderance of the evidence.
We base our determination under Section 2(d) on an analysis of all of
the probative evidence of record bearing on a likelihood of confusion. In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“du Pont”). See also, In re Majestic Distilling Company, Inc., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “Not all of the du Pont factors are
relevant to every case, and only factors of significance to the particular mark
need be considered.” In re Mighty Leaf Tea, 601 F.3d 1342, 1346, 94 USPQ2d
1257, 1259 (Fed. Cir. 2010). For example, the Board can “focus … on disposi-
tive factors, such as similarity of the marks and relatedness of the goods.”
Herbko Int'l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164, 64 USPQ2d 1375,
1380 (Fed. Cir. 2002) (citation omitted). These factors, and the other relevant
du Pont factors are discussed below.
1. The Marks
First, we turn to the du Pont likelihood of confusion factor regarding
the similarity or dissimilarity of the marks in their entireties as to appear-
ance, sound, connotation and commercial impression. See Palm Bay Imports
Opposition No. 91178682

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Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005). “[T]he test 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 their overall commer-
cial impression so that confusion as to the source of the goods offered under
the respective marks is likely to result.” H.D. Lee Co. v. Maidenform Inc., 87
USPQ2d 1715, 1727 (TTAB 2008). The focus is on the recollection of the aver-
age purchaser, who normally retains a general rather than a specific impres-
sion of trademarks. In re Binion, 93 USPQ2d 1531 (TTAB 2009); Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
“[A] particular feature of a mark may be more obvious or dominant, and
therefore, when determining likelihood of confusion, greater weight ought to
be given to the force and effect of such a feature.” Kangol Ltd. v. KangaROOS
U.S.A., Inc., 974 F.2d 161, 23 USPQ2d 1945, 1946 (Fed. Cir. 1992) (internal
citations omitted). We acknowledge the differences in wording and presence of
the design element in applicant’s mark. Nonetheless, it is more likely that
prospective consumers will overlook these minor distinctions and instead con-
fuse the marks as originating from the same source, given that they either
contain or consist solely of the literal element “pinnacle” or “pinnacles.” It is
well established that when a mark consists of a word portion and a design
portion, the word portion is more likely to be impressed upon a purchaser’s
memory and to be used in calling for the services; therefore, the word portion
Opposition No. 91178682

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is normally accorded greater weight in determining whether marks are con-
fusingly similar. In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB
1999). See also CBS Inc. v. Morrow, 708 F.2d 1579, 1581-82, 218 USPQ 198,
200 (Fed. Cir 1983); In re Kysela Pere et Fils, Ltd., 98 USPQ2d 1261, 1267-68
(TTAB 2011). Moreover, the term “pinnacle” as it appears in applicant’s com-
posite mark is more likely to be remembered by prospective consumers given
its display in larger, more prominent lettering in relation to the term “do-
maine” which appears in smaller size font.
We are further guided by the principle that disclaimed matter in a
mark typically is of less significance in creating a commercial impression. See
In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997) (find-
ing “delta” the dominant part of the mark THE DELTA CAFÉ because CAFÉ
was disclaimed). As noted in the registration and reflected in the record, the
disclaimed term “domaine” is the French word for “estate,” and is now widely
used in the U.S. wine industry as designating the name of a winery. Notice of
Reliance No. 3 (entries for “domaine” from Merriam-Webster’s French-English
Dictionary and Wine Dictionary at www.thewinebuyer.com). The descriptive
significance of the term “domaine,” coupled with the relatively larger size and
center placement of the term PINNACLE in relation thereto, make
PINNACLE the dominant element in applicant’s mark. Similarly, the term
“ranches” as used in the registered mark PINNACLES RANCHES is dis-
claimed, reflecting its descriptive significance as “a place where … crops are
Opposition No. 91178682

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grown and it could include grapes.” Fonseca Deposition, 20:15-21:1. As such,
we find that the involved marks are highly similar in sound and appearance.
With regard to the connotation and commercial impression of the
marks, opposer presented testimony that the word “pinnacle” means “the top,
the peak, the best.” Fonseca Deposition, 21:2-5. The record also shows that
“Pinnacle” is the name of the mountain in Quebec, Canada where applicant’s
apple orchard is located. Opposer’s Notice of Reliance No. 4. As such, prospec-
tive consumers viewing opposer’s marks, which contain the plural version of
the word “pinnacle,” are more likely to ascribe the latter meaning to the mark.
In any event, as used in connection with both applicant’s and opposer’s goods,
the significance of the term PINNACLE or PINNACLES is highly similar.
We therefore find that opposer’s marks and applicant’s mark are simi-
lar in appearance, sound, connotation and commercial impression. This first
du Pont factor weighs in favor of finding a likelihood of confusion.
2. Fame of the Prior Mark
We now consider the fifth du Pont factor of the fame of opposer’s marks.
Fame, if it exists, of the prior mark plays a dominant role in likelihood of con-
fusion cases featuring a famous mark. Bose Corp. v. QSC Audio Products Inc.,
293 F.3d 1367, 63 USPQ2d 1303 (Fed. Cir. 2002); Recot Inc. v. M.C. Becton,
214 F.3d 1322, 54 USPQ2d 1894 (Fed. Cir. 2000). Fame for likelihood of con-
fusion purposes may be measured indirectly by the volume of sales and adver-
tising expenditures of the goods sold under the mark, for example, and other
Opposition No. 91178682

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factors such as length of time of use of the mark, widespread critical assess-
ments, notice by independent sources of the products identified by the marks,
and the general reputation of the products and services. Bose Corp. v. QSC
Audio Products, Inc., 63 USPQ2d at 1308. Because of the extreme deference
accorded to a famous mark in terms of the wide latitude of legal protection it
receives, and the dominant role fame plays in the likelihood of confusion anal-
ysis, it is the duty of the party asserting fame to clearly prove it. Lacoste Alli-
gator S.A. v. Maxoly Inc., 91 USPQ2d 1594, 1597 (TTAB 2009); Leading Jew-
elers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007).
Opposer argues that its PINNACLES mark is famous based on over 40
years of continuous use. Opposer also points to worldwide sales (in U.S. dol-
lars) at the wholesale level for both PINNACLES and PINNACLES
RANCHES for the years 2001-2013,9 as well as accolades from print publica-
tions such as The Wall Street Journal, Wine Spectator, Wine Enthusiast, and
Food and Wine Magazine. Fonseca Deposition, Ex. 7; Applebaum Deposition,
Ex. 9.
Opposer’s evidence falls short of establishing opposer’s PINNACLES
and/or PINNACLES RANCHES marks as famous for likelihood of confusion
purposes. The sales figures submitted by opposer are flawed because they
consist only of worldwide sales without breaking down the data for wine sold

9 The data consists of worldwide sales at the wholesale level for fiscal years 2001-12
(with data for part of fiscal year 2013) sold under both the PINNACLES and
PINNACLES RANCHES brand. Opposer’s fiscal year is March 1 through the end of
February. Applebaum Deposition, 22:9-25, 23:2-15, and Ex. 9.
Opposition No. 91178682

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in the United States. In addition, the few instances of unsolicited media
recognition, without more, are insufficient to support opposer’s assertion that
its wine sold under the PINNACLES and/or PINNACLES RANCHES marks
enjoy wide brand name recognition among consumers. Compare Palm Bay,
supra (VEUVE CLICQUOT found famous among purchasers of champagne
and sparkling wine based upon sale in 8000 restaurants nationwide, liquor
stores, wine shops and other retail establishments; extensive promotional
campaign consisting of print advertisements in general interest magazines
and in wine specialty magazines, radio ads, point-of-sale displays, wine tast-
ings; and unsolicited recognition in New York Times, Boston Globe, Money
Magazine). This du Pont factor is therefore neutral.
3. Third-Party Uses
Next we consider the sixth du Pont factor, namely the number and na-
ture of similar marks in use on similar goods. Opposer contends that because
the record is devoid of third-party uses of the marks PINNACLE,
PINNACLES or PINNACLES RANCHES for wine, apple-based beverages or
any other related goods or services, opposer’s marks are strong.
Evidence of third-party use, however, is typically introduced at trial by
the defendant, not the plaintiff. See Palm Bay, 73 USPQ2d at 1694 (“The pur-
pose of a defendant introducing third-party uses is to show that customers
have become so conditioned by a plethora of such similar marks that custom-
ers have been educated to distinguish between different such marks on the
Opposition No. 91178682

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bases of minute distinctions.”). Insofar as applicant took no testimony, the ab-
sence in the record of third-party uses cannot lead us to the factual determi-
nation that either of opposer’s marks are strong and therefore deserving of a
wide scope of protection. Furthermore, to the extent, if any, opposer is arguing
that its mark is conceptually strong, we disagree, finding that the mark is
suggestive for the reasons articulated above in our discussion of the first du
Pont factor. Accordingly, we find this factor to be neutral.
4. The Trade Channels/Purchasers
Next we consider the third and fourth du Pont factors – the similarity
or dissimilarity of established, likely to continue trade channels and the con-
ditions under which and buyers to whom sales are made. In an inter partes
proceeding before the Board, the issue of likelihood of confusion must be de-
termined based on the goods recited in applicant’s application vis-à-vis the
goods identified in opposer’s pleaded registration. Cunningham v. Laser Golf
Corp., 55 USPQ2d at 1846; Canadian Imperial Bank v. Wells Fargo Bank, 811
F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1992). Because the identifications of
goods in the involved application and registrations are unrestricted as to
trade channels, we must presume that both parties’ products travel in the or-
dinary trade and distribution channels and will be marketed to the same po-
tential consumers. See Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d
1352, 1360-61, 56 USPQ2d 1351, 1354 (Fed. Cir. 2000) (“When the registra-
tion does not contain limitations describing a particular channel of trade or
Opposition No. 91178682

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class of customer, the goods or services are assumed to travel in all normal
channels of trade.”). See also In re Elbaum, 211 USPQ 639, 640 (TTAB 1981),
citing Kalart Co., Inc. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139
(CCPA 1958). The record shows that the ordinary trade and distribution
channels for opposer’s wines are wholesalers and restaurants, as well as retail
establishments such as liquor stores, wine merchants and for those states
where permissible by law, grocery stores and other retail outlets such as con-
venience stores. Fonseca Deposition, 18:9-14. The ordinary trade channels for
applicant’s “[a]pple juices and apple-based non-alcoholic beverages” are
wholesalers as well as retail store outlets such as grocery and convenience
stores. As such, the trade channels for opposer’s and applicant’s goods overlap
in part. In addition, both parties’ goods will be encountered by the same pro-
spective consumers. Hence, the third and fourth du Pont factors, the relevant
trade channels and classes of consumers, weigh in favor of finding a likelihood
of confusion.
5. The Goods
The next step in our analysis is a comparison of the goods identified in
applicant’s application vis-à-vis the goods identified in opposer’s pleaded reg-
istrations. See Cunningham v. Laser Golf Corp., 55 USPQ2d at 1846; Canadi-
an Imperial Bank v. Wells Fargo Bank, 1 USPQ2d at 1815. In arguing that
applicant’s “[a]pple juices and apple-based non-alcoholic beverages” are relat-
ed to opposer’s wine, applicant relies primarily on the case of In re Jacob
Opposition No. 91178682

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Demmer KG, 219 USPQ 1199 (TTAB 1983), an ex parte appeal, where the
Board affirmed the examining attorney’s Section 2(d) refusal to register simi-
lar marks for “wines” and “apple cider.” The Board, in determining that the
goods in question were “sufficiently related,” took judicial notice of the dic-
tionary definition of “cider” to find that “…cider is a beverage which can be
produced and marketed in alcoholic as well as non-alcoholic form. Indeed, ci-
der is an appellation connoting not only non-alcoholic apple juice but ferment-
ed apple juice with alcohol content not significantly less than many wines.” Id.
at 1201. In addition, the Board relied on the dictionary definition of “wine”
made of record to find that “…the fruit from which cider is made can also be
used to make wines and the cider or apple juice itself can serve as a mixer in
punches and cocktails featuring wines, brandy and cordials.” Id. Opposer also
points to the Board’s decisions in Coca Cola Co. v. Joseph E. Seagram & Sons,
Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (opposition sustained;
BENGAL for gin versus BENGAL LANCER and design for non-alcoholic car-
bonated soft drinks) and In re Rola Weinbrennerei Und Likorfabrik GmbH &
Co. KG, 223 USPQ 57 (TTAB 1984) (SUN APPLE stylized claiming the color
red for apple flavored alcoholic liqueur versus SUNAPPLE stylized for pow-
dered apple flavored soft drink.).
We cannot rely on the Board’s determination in Jacob Demmer to make
the same factual finding here that applicant’s and opposer’s goods are related.
“[I]t is well established that each case … stands on its own facts, and prior de-
Opposition No. 91178682

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cisions are of little value.” In re Quik-Print Copy Shop, Inc., 616 F.2d 523, 205
USPQ 505, 507 (CCPA 1980). While applicant’s goods identified as “apple-
based non-alcoholic beverages” are broad enough to cover “apple cider,” Jacob
Demmer was an ex parte appeal where the Board took judicial notice of a dic-
tionary definition in affirming the examining attorney’s refusal to register. In
ex parte appeals, the Board generally adopts a “more permissive stance with
respect to the admissibility and probative value of evidence” than it does in an
inter partes case. TBMP § 1208 (3rd ed. rev. 2 June 2013). Here, in this inter
partes proceeding, the burden is on opposer to introduce evidence that the
goods are related. Indeed, the Board made clear in both the Jacob Demmer
and Rola decisions that we cannot per se deem wines and non-alcoholic apple
juices or beverages as related goods; rather, we must examine the particular
factual circumstances of each case. Jacob Demmer, 219 USPQ at 1201; Rola,
223 USPQ at 58. We therefore look to the record to ascertain whether opposer
has shown by a preponderance of the evidence that the parties’ goods are in-
deed related for likelihood of confusion purposes.
As evidentiary support that the goods in question are related, opposer
presented testimony that the parties are competitors in Canada with respect
to wine and ice wine (Applebaum Deposition, 13:21-24 and 20:15-22) and evi-
dence that opposer’s parent company also wholly owns three other Canadian-
based companies engaged in the following: (1) Jackson-Triggs, the “number
one” selling wine brand in Canada which produces table wines, ice wines and
Opposition No. 91178682

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sparkling wines (Applebaum Deposition, 18:13-17; Ex. 6 – print outs from the
Jackson-Triggs web site), (2) Inniskillin, the “number one brand Icewine in
the world” (Id. at 19:2-11, Ex. 7 – print outs from the Inniskillin web site), and
(3) Growers Cider, the number one cider and alcoholic cider produced and sold
in Canada (Id. at 20:2-14, Ex. 8 – print outs from Growers Cider web site).
This evidence is insufficient to show that applicant’s and opposer’s iden-
tified goods are related in some manner or that the circumstances surround-
ing their marketing are such that they would be likely to be seen by the same
persons under circumstances which could give rise to a mistaken belief that
they originate from or are in some way associated with the same producer or
that there is an association between the producers of each parties’ goods. See
Recot, 54 USPQ2d at 1898. “The probative value, if any, of foreign information
sources must be evaluated on a case-by-case basis.” See In re Bayer Aktieng-
esellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007) (in analyz-
ing descriptiveness of applied-for mark ASPIRINA, information originating on
foreign websites or in foreign news publications that are accessible to the
United States public may be relevant to discern U.S. consumer impression of
a proposed mark). The evidence obtained from the Jackson-Triggs, Inniskillin
and Growers Cider web sites is, at best, of minimal probative value because it
pertains to Canadian, not U.S., based entities, and we have no evidence before
us regarding exposure to each web site by U.S. consumers. See In re Kysela
Pere et Fils Ltd., 98 USPQ2d at 1265 n.9 (no basis to conclude U.S. consumers
Opposition No. 91178682

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exposed to website for Australian brewery; those webpages not considered).
Opposer’s testimony provides no further clarification. When testifying as to
each product marketed under the Jackson-Triggs, Inniskillin and Growers Ci-
der trademarks, Mr. Applebaum was asked about the renown in Canada but
not in the United States. Id. at 18-20:11.10 Furthermore, the evidence does not
show that any of these three entities markets and sells both applicant’s and
opposer’s identified goods under the same brand name. The fact that a large
corporate conglomerate may own separate holdings which in turn each use
their own individual, distinct mark for the goods in question is not the equiva-
lent of showing competitor or third-party use of the same mark on the same
goods.
Opposer did not introduce evidence that the same entities produce and
sell both wine and “[a]pple juices” or “apple-based non-alcoholic beverages,” or
that they market said products under the same mark in the United States.
We have no evidence before us that wine and apple juice or “apple-based non-
alcoholic beverages” are complementary products (for example, consumed to-
gether at the same meal) or that these products are sold in proximity to each
other in retail outlets such as grocery stores. Thus, on the record before us,
this du Pont factor does not favor a likelihood of confusion.

10 Mr. Applebaum did testify that the Jackson-Triggs brand is sold in the United
States but did not indicate as to what extent. Applebaum Deposition, 19:17-20.
Opposition No. 91178682

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6. The Market Interface Between the Parties
Opposer contends that the tenth du Pont factor, the market interface
between applicant and opposer, favors a likelihood of confusion. Specifically,
opposer points to applicant’s use or intended use of its applied-for mark with-
out opposer’s consent or permission. Opposer’s Brief, p. 16.
With regard to decisions discussing du Pont factor 10(a), a mere con-
sent to register or use, and factor 10(b), agreement provisions designed to pre-
clude confusion, i.e., limitations on continued use of the marks by each party,
“[t]hese cases teach that a ‘naked’ consent to register or use is entitled to little
probative weight in the likelihood of confusion analysis, but that if the appli-
cant and the prior user have entered into an agreement which evidences their
business-driven conclusion and belief that there is no likelihood of confusion,
and which includes provisions designed to avoid any potential confusion, the
existence of such an agreement weighs heavily in favor of a finding that con-
fusion is not likely.” In re Opus One Inc., 60 USPQ2d 1812, 1820 (TTAB 2001)
(internal citations omitted). Here we have neither a consent from opposer (as
contemplated by du Pont factor 10(a)), nor an agreement between applicant
and opposer (as contemplated by du Pont factor 10(b)). We cannot simply
draw the inference that the absence of such an agreement favors a likelihood
of confusion. We therefore deem this du Pont factor neutral.
Opposition No. 91178682

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7. Balancing the du Pont Factors
In a particular case, any of the du Pont factors may play a dominant
role. In re E. I. du Pont de Nemours & Co., 177 USPQ at 567. In fact, in some
cases, a single factor may be dispositive. Kellogg Co. v. Pack'em Enterprises
Inc., 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991). In the present case, the
lack of evidence showing a relatedness of the goods outweighs the first, third,
and fourth du Pont factors which favor a finding of likelihood of confusion,
discussed above. Accordingly, we find that opposer has failed to prove its case
by a preponderance of the evidence.11
Decision: The opposition is dismissed.

11 In view of the lack of evidence of use of applicant’s applied-for mark, we agree with
opposer that the seventh and eighth du Pont factors (nature and extent of any actual
confusion; the length of time and conditions under which there has been concurrent
use without evidence of actual confusion) are irrelevant.