Fred G. Farago

Trademark Trial and Appeal Board

Oct 3, 2001

No. 75708835 (T.T.A.B. Oct. 3, 2001)

10/3/01
Paper No. 12
DEB
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Fred G. Farago1
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Serial No. 75/708,835
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George W. Hoover of Blakely Sokoloff Taylor & Zafman for
Fred G. Farago.

Idi Aisha Clarke, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
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Before Wendel, Bucher and Bottorff, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant seeks registration of the mark SUPER I.Q.
PLUS for the following goods in International Class 32, as
amended, “fruit juices, fruit juice concentrates, fruit
drinks and fruit-flavored drinks.”2

1 On its submission of December 11, 2000, counsel filed the
response under the heading of “American Fruit Processors,” a
corporation having the same address as applicant. However, there
is nothing in the assignment records of the United States Patent
& Trademark Office to suggest there has been a transfer of this
application.
2 Serial No. 75/708,835, filed May 17, 1999. The application
is based on use in commerce under Trademark Act Section 1(a), 15
U.S.C. §1051(a), with March 16, 1999 alleged as the date of first
use of the mark anywhere and March 16, 1999 alleged as the date
of first use of the mark in commerce. While the application as
filed included “vitamins and mineral supplements,” applicant
deleted these goods in order to avoid the instant refusal.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 75/708,835
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The Trademark Examining Attorney has refused
registration under Trademark Act Section 2(d), 15 U.S.C.
§1052(d), citing Registration No. 2,247,128, which is for
the mark SUPER I.Q. and design as shown below:

for goods identified as “diet supplement tablets in softgel
form containing natural ingredients in the nature of
vitamin E, lecithin and marine lipid concentrate,” as a bar
to registration of applicant’s mark:
When the refusal was made final, applicant filed this
appeal. Applicant and the Trademark Examining Attorney
have filed main briefs. No oral hearing was requested. We
affirm the refusal to register.
Our determination under Section 2(d) is based on an
analysis of all of the probative 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 and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). Upon careful
consideration of the evidence of record pertaining to these
factors, we find as follows.
Serial No. 75/708,835
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Applicant’s mark is highly similar to the cited
registered mark. The portion of the respective marks that
prospective customers would likely remember and ask for is
the “SUPER I.Q.” portion of the marks. The design feature
of registrant’s mark must be viewed as a subordinate
feature as it cannot be easily verbalized and would not be
relied upon in calling for the goods. As noted by the
Trademark Examining Attorney, the “PLUS” portion of
applicant’s mark has little source-indicating significance,
and could well be seen as a product extension on
registrant’s part. This du Pont factor weighs strongly in
favor of a finding of likelihood of confusion.
We turn next to a consideration of the relationship
between the goods identified in applicant’s application and
those identified in registrant’s registration. As has
often been stated, it is not necessary that the parties’
respective goods be identical or even competitive in order
to support a finding of likelihood of confusion. Rather,
it is sufficient that the goods are related in some manner
or that the circumstances surrounding their marketing are
such that they would be likely to be encountered by the
same persons in situations that would give rise, because of
the marks used thereon, to a mistaken belief that they
originate from or are in some way associated with the same
Serial No. 75/708,835
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producer or that there is an association or connection
between the producers of the respective goods. See In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991); In re
International Telephone & Telegraph Corp., 197 USPQ 910
(TTAB 1978). Moreover, the greater the degree of
similarity between the parties’ marks, the lesser the
degree of similarity required in the parties’ goods to
support a finding of likelihood of confusion.
While registrant’s identification of goods covers
several specific dietary supplements, applicant’s
identification of goods in its application as amended, is
limited to fruit juices and drinks. In support of her
contention that applicant’s goods are related to
registrant’s goods, the Trademark Examining Attorney has
submitted printouts of several subsisting use-based
registrations, owned by several different companies, which
include both dietary supplements and fruit juices and
drinks in their respective identifications of goods. These
registrations are evidence that the respective goods are of
a type which may emanate from a single source. See In re
Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993); In
re Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467 (TTAB 1988).
Moreover, while applicant has deleted the “vitamins
and mineral supplements” from its own use-based application
Serial No. 75/708,835
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herein, that original identification of goods supports that
relevant purchasers will find it reasonable to conclude
that dietary supplements and fruit drinks might originate
from a single source, or from sources which are otherwise
affiliated or connected. Accordingly, we find that the
Trademark Examining Attorney has sufficiently demonstrated
a commercial relationship between applicant’s goods and
registrant’s goods in this case.
In conclusion, with nearly identical trademarks
applied to related goods, we find a likelihood of
confusion. To the extent that the issue of the likelihood
of confusion is close, we are obligated to resolve doubts
in favor of the registrant and prior user. In re Hyper
Shoppes, 837 F.2d 463, 6 USPQ2d 1025, 1026 (Fed. Cir.
1988).
Decision: The Section 2(d) refusal is affirmed.