Gina Davia

Trademark Trial and Appeal Board

May 27, 2014

No. 85497617 (T.T.A.B. May. 27, 2014)

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Serial No. 85497617
2

The description of the mark statement reads: “The mark consists of a stylized
snake forming a circle in an Aztec art style. Across the snake is the stylized text
‘CHANTICO’ above the stylized text ‘PEPPER SAUCE’. There is a dot on each side
of the letter ‘T’ in ‘CHANTICO’ and after each letter ‘P’ in ‘PEPPER’.”
The words “Pepper Sauce” in the mark have been disclaimed. Color is not
claimed as a feature of the mark.
The Trademark Examining Attorney has refused registration of applicant’s
mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), contending that
applicant’s use of her mark on the identified goods is likely to cause confusion with
the previously registered mark CHANTICO (standard character form) for “agave
sweetener” in International Class 30.2
When the refusal was made final, applicant appealed and filed a request for
reconsideration. After the examining attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
Applicable Law
Our determination under Trademark Act § 2(d) is based on an analysis of the
probative facts in evidence that are relevant to the factors bearing on a likelihood of
confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563
(CCPA 1973). See also Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie

2 Reg. No. 3901565; registered January 4, 2011.
Serial No. 85497617
3

Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In considering the
evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry
mandated by Section 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). See also In
re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
A. Comparison of the Marks
In comparing the marks, we must consider the marks in their entireties as to
appearance, sound, connotation and commercial impression, to determine the
similarity or dissimilarity between them. In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting du Pont); Palm Bay, 73 USPQ2d at
1692; Trademark Manual of Examining Procedure (“TMEP”) § 1207.01(b)-(b)(v)
(April 2014). Similarity in any one of these elements may be sufficient to find the
marks confusingly similar. In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB
1988); In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581, 1586 (TTAB 2007);
TMEP § 1207.01(b). The test, under the first du Pont factor, 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 commercial
impression that confusion as to the source of the goods offered under the respective
marks is likely to result. Coach Services Inc. v. Triumph Learning LLC, 668 F.3d
1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). See also In re Cook Medical
Technologies LLC, 105 USPQ2d 1377, 1381 (TTAB 2012); Edom Laboratories Inc. v.
Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). In making this determination, we
Serial No. 85497617
4

recognize that purchasers have fallible memories. See, e.g., San Fernando Elec.
Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 2-3
(CCPA 1977); Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687,
688 (CCPA 1969); Sakrete, Inc. v. Slag Processors, Inc., 305 F.2d 482, 134 USPQ
245, 247 (CCPA 1962); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975).
We readily acknowledge that there are some dissimilarities in appearance
between the marks because applicant’s mark includes the design of a snake in an
Aztec art style. Applicant argues that the impression made by the snake design is
“more significant in creating a commercial impression because it is the most
visually prominent and conspicuous feature”3 (emphasis in original) and that when
the marks are compared in their entireties, there is no likelihood of confusion. The
examining attorney argues in response that the dominant feature of applicant’s
mark is the word “Chantico,” given that “pepper sauce” is the generic name for the
goods, the raised dots are mere decorative additions, the snake design is somewhat
obscured by the words, and that “consumers would not call for the goods by saying
‘the sauce with the stylized snake forming a circle in an Aztec art style.’”4
While we must consider a mark in its entirety, one feature may be recognized as
being more significant than other elements. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“[I]n articulating reasons for reaching a
conclusion on the issue of confusion, there is nothing improper in stating that, for

3 Applicant’s Appeal Brief, at 9; 14 TTABVUE 10.
4 Examining Attorney’s Brief, at 7 (unnumbered); 16 TTABVUE 7.
Serial No. 85497617
5

rational reasons, more or less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on consideration of the marks in their
entireties.”). In this case, the word “Chantico,” stands out from the rest of
applicant’s mark. It appears in large letters, squarely in the center of the mark, and
is big enough to cover up the snake design at two points, causing the design to
visually recede and form part of the background of the mark. The snake design also
curls around the word “Chantico,” thereby creating a visual focus to the word. In
addition, we find that the snake design is so highly stylized that it does not appear
to us, as a matter of commercial impression, to immediately give rise to the
realization that it is a serpent. Rather, that realization appears only after some
degree of, and time for, scrutiny. Moreover, as the examining attorney points out,
consumers tend to remember words rather than designs in marks because they use
the words to refer to or call for the goods. Thus, consumers will recall the word
“Chantico,” more readily than the highly stylized snake design. See In re Viterra
Inc., 101 USPQ2d at 1911; In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596
(TTAB 1999) (“It is the word portion of the marks which is most likely to be
impressed upon a customer’s memory as it is used by prospective purchasers when
asking for applicant’s and registrant’s goods.”).
We note that the cited registration is for the mark CHANTICO (in standard
characters), and applicant’s mark incorporates the registered mark CHANTICO in
its entirety. The word “Chantico” also makes a stronger impression than the
disclaimed wording “pepper sauce,” which appears in much smaller lettering than
Serial No. 85497617
6

does the word “Chantico,” and comprises the generic name for the goods. “That a
particular feature is descriptive or generic with respect to the involved goods or
services is one commonly accepted rationale for giving less weight to a portion of a
mark.” National Data, 224 USPQ at 751. See also, e.g., In re Dixie Rests., Inc., 105
F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (“DELTA,” not the disclaimed
generic term “CAFE,” is the dominant portion of the mark THE DELTA CAFE).
Compare Clinton Detergent Co. v. Procter & Gamble Co., 302 F.2d 745, 133 USPQ
520, 522-23 (CCPA 1962) (where the added word simply describes a use for the
product (JOY vs. CARJOY detergent), it does not serve to lessen the likelihood of
confusion) with Clayton Mark & Co. v. Keystone Brass and Rubber Co., 279 F.2d
279, 126 USPQ 259, 260 (CCPA 1960) (where the added word(s) or letters are not
simply descriptive or suggestive, but are more distinctive (MARK vs. SUMARK for
plumbing-related goods), they may prevent confusion). As for the raised dots and
periods in the mark, they are unpronounceable and contribute very little to the
overall commercial impression of the mark.
Moreover, because CHANTICO is registered in standard character form, we are
required to consider, when comparing the marks, the various ways in which the
registrant could depict its mark. Although we acknowledge that such analysis
would not extend to include consideration of that term combined with a snake
design, registrant is entitled to protection of its mark CHANTICO in any font style,
size, or color, including a stylization that uses the font style employed by applicant,
and therefore we must consider its mark as though it were depicted in such font
Serial No. 85497617
7

style. Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d
1253, 1258-59 (Fed. Cir. 2011). See also In re Viterra Inc., 101 USPQ2d at 1909
(“[T]o the extent that the Board simply held that a standard character mark is not
limited to any particular font, size, style, or color, it is entirely consistent with our
case law, the relevant regulations, and the TMEP.”).
As to sound, we note that the term CHANTICO is identical in both the cited
mark and in applicant’s mark and therefore likely will be pronounced the same. The
meaning of the word CHANTICO, to the extent it is known to the relevant public, is
also the same for both marks: it is the name of an Aztec goddess.5 For these
consumers, an awareness that the Aztec culture thrived in Mexico6 and that both
agave and chili pepper plants are grown in and associated with the country of
Mexico7 would lend a similar connotation to each usage of CHANTICO. For those
members of the purchasing public who are unfamiliar with the derivation of
CHANTICO, they may ascribe no meaning to either mark, such that CHANTICO
would be viewed as the same arbitrary term.

5 CHANTICO is identified as the name of an Aztec mythological goddess on applicant’s
Facebook page, attached to the examining attorney’s June 12, 2013, denial of applicant’s
request for reconsideration.
6 An “Aztec” is defined as “a member of a Nahuatl-speaking people that founded the
Mexican empire conquered by Cortes in 1519.” At http://www.merriam-webster.com. The
Board may take judicial notice of dictionary definitions that appear in printed publications,
including online dictionaries with regular fixed editions. In re Red Bull GmbH, 78 USPQ2d
1375 (TTAB 2006); University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co.,
Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
7 See the entry entitled “Hot Sauce,” at http://en.wikipedia.org/, including an extensive
discussion on hot sauce and the chili peppers from which it is made, including those from
Mexico. Also at the website is an entry defining “agave nectar” as “a sweetener
commercially produced in South Africa and Mexico from several species of agave.”
Attachment to Applicant’s Response dated September 17, 2012.
Serial No. 85497617
8

In sum, applicant’s mark is dominated by the word CHANTICO, which forms
the entirety of the registered mark, and both marks are similar in their overall
appearance, pronunciation, connotation and commercial impression. Accordingly,
the first du Pont factor weighs in favor of a finding of likelihood of confusion.
B. Strength of the Cited Mark CHANTICO
In order to determine the conceptual strength of the cited mark, we evaluate its
intrinsic nature, that is, where it lies along the generic-descriptive-suggestive-
arbitrary (or fanciful) continuum of words. Here, the cited mark CHANTICO has
been registered on the Principal Register without a claim that the term has
acquired distinctiveness, thereby showing that it has been viewed as inherently
distinctive. Moreover, as the name of an Aztec mythological goddess, CHANTICO is
clearly not descriptive, or even highly suggestive, of food products. Nothing in the
record indicates an alternative meaning for the term that would suggest otherwise.
Cf. Citigroup Inc. v. Capital City Bank Group, Inc. 94 USPQ2d 1645, 1664 (TTAB
2010) (the term “City Bank” is used by others to convey alternative meanings; no
likelihood of confusion found between CITIBANK and CAPITAL CITY BANK),
aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011). Applicant has also not
shown the existence of other registrations for the term, apart from the cited
registration, that could demonstrate that CHANTICO conveys a high degree of
suggestiveness. Cf. Institut National Des Appellations D’Origine v. Vintners
International Co., 958 F.2d 1574, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992) (“[T]hird
party registrations … may show that a particular term has descriptive significance
Serial No. 85497617
9

as applied to certain goods or services.”). Accordingly, CHANTICO is considered
arbitrary and strong in relation to the goods in the application and registration.
C. The Number and Nature of Similar Marks in Use on Similar Goods
We may also look to evidence pertaining to the number and nature of similar
marks in use on similar goods “to show that customers have become so conditioned
by a plethora of such similar marks that customers ‘have been educated to
distinguish between different marks on the bases of minute distinctions.’” Palm
Bay, 73 USPQ2d at 1694 (Fed. Cir. 2005) (internal citations omitted). Here, there is
no record evidence of any third-party use of CHANTICO marks or marks similar to
CHANTICO that might show the cited mark to be commercially weak or diluted by
the existence of other similar marks in use in the marketplace. Cf. In re Hartz Hotel
Services Inc., 102 USPQ2d 1150 (TTAB 2012) (marks comprising term “Grand
Hotel” for hotels accorded narrow scope of protection in view of numerous third-
party uses of GRAND HOTEL for hotel services); In re Broadway Chicken, Inc., 38
USPQ2d 1559, 1565 (TTAB 1996) (evidence of third-party use of the term
“Broadway” for restaurant services was so common that consumers would look to
the other elements of applicant’s mark BROADWAY CHICKEN to distinguish the
source of the goods from BROADWAY PIZZA and BROADWAY BAR & PIZZA).
Because of the lack of evidence regarding this du Pont factor, we treat it as neutral.
D. Comparison of the Goods
We evaluate the goods as they are identified in the registration (“agave
sweetener”) and application (“condiments, namely, pepper sauce”). Dixie Rests., 41
USPQ2d at 1534. See also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d
Serial No. 85497617
10

1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
“When analyzing the similarity of the goods, ‘it is not necessary that the products of
the parties be similar or even competitive to support a finding of likelihood of
confusion.’” Coach Services, 101 USPQ2d at 1722 (citation omitted). The goods need
only be sufficiently related that consumers would be likely to assume, upon
encountering the goods under similar marks, that the goods originate from, are
sponsored or authorized by, or are otherwise connected to the same source. See id.
Both agave sweeteners and pepper sauce are used as condiments, defined in
Webster’s dictionary as “something (such as salt, mustard, or ketchup) that is added
to food to give it more flavor.”8 Thus, they are functionally related. Pepper sauce
and agave sweeteners are also commonly used together, and “conjoint use is a fact
proper to be considered along with other facts present in particular cases.” Sholl
Dental Laboratory Co. v. McKesson & Robbins, Inc., 150 F.2d 718, 66 USPQ 223,
226 (CCPA 1945). See also In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d
1565, 223 USPQ 1289 (Fed. Cir. 1984) (“The extent to which particular food
products are deemed related will depend on the facts of each individual case. In the
instant case, we take notice that the products ‘bread’ and ‘cheese’ are often used in
combination. Such complementary use has long been recognized as a relevant
consideration in determining a likelihood of confusion.”). To illustrate that the goods
add flavoring to similar foods, and would thus be used together, the examining

8 At www.merriam-webster.com. See Stewart-Warner Corp. v. U.S., 748 F.2d 663, 669 (Fed.
Cir. 1984) (“We take judicial notice of the common dictionary definition of ‘bicycle’ ….”).
Serial No. 85497617
11

attorney has submitted copies of web pages showing that the products are often
called for as ingredients in the same recipes. For example,9
1. A mixed drink recipe utilizing tequila and labeled
Another Sangarita Recipe calls for “grenadine or
agave nectar to sweeten” and “hot pepper sauce to
taste.” At http://www.tequilaconnection.com.
2. A recipe for BBQ Baked Beans (Sugar-Free) calls for
“¼ cup agave nectar” and “1 dash hot pepper
sauce.” At http://www.yummly.com.
3. A recipe for Agave Chicken Wings calls for “½ cup
agave” and “8 drops hot pepper sauce.” At
www.dvo.com.
4. EverFit Turkey Meatloaf utilizes “blue agave
sweetener or brown sugar” and “red pepper sauce.”
At http://www.everfitfitness.com.
5. Global Goods Inc. lists a recipe for Agave BBQ Sauce
that includes “½ cup volcanic agave nectar” and
“dash cayenne pepper or bottled hot pepper sauce.”
At http://www.globalgoods.com.
6. Cozy Cashew Chili, provided by Nature Isle Tropical
Gourmet, calls for “1 teaspoon mango pepper sauce”
and “1 teaspoon agave nectar.” At
http://www.natureisletropicalgourmet.com.
7. Pillsbury’s Chicken Empanada Cones recipe calls for
“4 teaspoons agave sweetener or honey” and “1
teaspoon red pepper sauce.” At
http://www.pillsbury.com.
8. A book of recipes entitled “Homemade Soda,” which
includes a recipe for “hot pepper syrup” that is made
with just two ingredients: pepper sauce and agave
syrup. At http://books.google.com.

9 Example numbers 1-2 and 9 were attached to the Office action dated March 31, 2012. The
remaining examples, except for example No. 8, were attached to the Office action dated
October 31, 2012. That one was attached to the examining attorney’s June 12, 2013, denial
of applicant’s request for reconsideration.
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USPQ 799, 799-80 (TTAB 1986) (sausage and cheese related based in part on copies
of pages from cookbooks containing recipes for dishes having cheese and sausage as
principal ingredients); In re Decombe, 9 USPQ2d 1812, 1815 (TTAB 1988) (fresh
produce is complementary to biscuits, cookies, wafers and candy because they are
served and eaten together); McCormick & Co., Inc. v. Granny Goose Foods, 144
USPQ 449 (TTAB 1964) (applicant’s use of GOLDEN WEST for potato chips likely
to cause confusion with opposer’s GOLDEN WEST for seasonings such as celery
salt, horseradish, and onion or onion juice, due to “characteristics of conjoint use
which may result in their being purchased at the same time to be used together”).
The evidence also supports our finding that a consumer would be likely to
encounter one product while purchasing the other. Because both products have been
shown to be used for the same purpose (as a flavoring) in the same recipes,
consumers are likely to purchase the products at the same time and in the same
stores, where they may be sold or displayed near each other. In this regard, the
examining attorney has shown that agave sweeteners and pepper sauce are sold
online by the same grocery stores such as Wegmans, Giant, and Safeway.11 See
Martin’s Famous Pastry Shoppe, 223 USPQ at 1290 (that the respective products
may well be sold in “close proximity” to one another supports conclusion that
confusion is likely); cf. In re Sela Prods., LLC, 107 USPQ2d 1580 (TTAB 2013)
(purchasers are likely to encounter both surge protectors, and wall mounts and
brackets, during course of purchasing a television, audio or home theater system);

11 Submitted with the examining attorney’s October 31, 2012, Office action.
Serial No. 85497617
14

In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991) (women’s shoes are
complementary to women’s clothing because they may be part of a coordinated
outfit); Polo Fashions, Inc., et.al. v. La Loren, Inc., 224 USPQ 509, 511 (TTAB 1984)
(“[A] person purchasing products for use in the bath could very well look for
[applicant’s] bath sponges, as well as [opposer’s] bath oil, soaps and the like.”).
Finally, we note the following evidence in the record further supports our
conclusion that the goods are related: registrant’s website suggests using its
CHANTICO sweetener with “sauces, such as BBQ, stews and meat glazes;”12 an
online menu from the Sonora restaurant in New York offering cocktails lists a
margarita mixed with agave nectar and chipotle pepper sauce;13 several makers of
pepper sauce also use “agave” as an ingredient;14 and the examining attorney

12 Submitted with applicant’s September 17, 2012, response.
13 At http://www.sonorarestaurant.net. Attached to the March 31, 2012, Office action.
14 For example:
1. At http://highriversauces.com, the High River Sauces Company
advertises “Hellacious Hot Sauce” from habanero peppers, vinegar,
agava, Chipotle peppers, lime juice and garlic.
2. At http://www.armadillopepper.com, Armadillo Pepper offers “pura
vida chili pepper sauce” made from peppers and “sweet organic
agave.”
3. At http://screamindemonfieryfoods.com, “Screamin Demon Fiery
Foods” advertises “a non-extract hot sauce” that mixes peppers and
agave with vinegar, lime, coriander and salt.
4. At http://www.tabanero.com, Tabanero Hot Sauce Picante is
advertised as “tangy with a hint of sweetness from the agave nectar,
mixed with the perfect amount of heat … .” Lists “all natural
ingredients” of habanero peppers and agave nectar, plus carrots,
onions, key lime juice, garlic, salt and grapefruit seed extract.
These references were attached to the June 16, 2013, denial of applicant’s
request for reconsideration.
Serial No. 85497617
15

submitted copies of two third-party registrations, based on use, showing that a
single mark has been registered for pepper sauce and natural sweeteners.15
We acknowledge applicant’s argument that disparate food items often appear in
the same recipes and yet would not be considered related even if sold under a single
mark. As we noted supra, the mere appearance of different items in a recipe will not
necessitate a finding that the goods are related. In support of its contention that the
goods at hand are unrelated, applicant has submitted copies of third-party
registrations for the mark SUNSHINE, showing that the mark has been registered
by several different parties for various food products, including sweetened
condensed milk, evaporated milk, crackers, pickles, and vodka. Applicant further
introduced excerpts from www.allrecipes.com indicating that milk and crackers, for
example, are both listed in the same recipes.16
We accord this evidence little probative value. While we readily acknowledge
that the mere presence of two food items in the same recipe does not per se make
them complementary or related, the comparisons between milk, crackers, pickles,

15 Registration No. 3616895 for the mark PRODRY includes, inter alia, “dried or powdered
food products, namely, dried or powdered natural sweeteners, … pepper sauce ….”;
registered May 5, 2009; use in commerce since September 24, 2007, claimed. Registration
No. 3868774 for the mark HIMAX includes “honey; molasses for food; sugar; natural
sweeteners; … condiments, namely, pepper sauce ….”; registered October 26, 2010; use in
commerce since July 16, 2010, claimed. These registrations were submitted with the March
31, 2012, Office action.
We acknowledge that these registrations list “natural sweeteners,” rather than “agave”
per se, but the record shows that agave is a natural sweetener. We also note that while the
examining attorney submitted additional registrations, these were either based on Section
66(a) or Section 44 of the Trademark Act, and in one of the use-based registrations, the
relevant goods had been cancelled. Such registrations have no probative value, and we have
not considered them.
16 Submitted with applicant’s April 29, 2013, request for reconsideration.
Serial No. 85497617
16

and vodka, on the one hand, and pepper sauce and agave sweetener on the other,
are by their very nature incomplete. Pepper sauce and agave sweeteners are both
condiments in the nature of flavoring additives, which typically are not consumed
by themselves, unlike the foods and drinks sold under the SUNSHINE mark. More
importantly, each case must be assessed on its own merits, and whether the term
“Sunshine” is indicative of any feature or characteristic of the goods, or has been
weakened by third-party use, is unknown, whereas the mark CHANTICO clearly is
arbitrary and strong. Moreover, several of the SUNSHINE registrations are owned
by the same company; and we have no way of knowing whether any of the owners of
the other SUNSHINE marks are likewise related or have entered into consent-to-
use agreements permitting use of the mark on the various products. In short, that a
variety of “Sunshine-formative” trademarks have been registered for an array of
foods and beverages sheds absolutely no light on the question of whether pepper
sauce is related to agave sweetener.
Applicant further argues that a proper focus on the relevant purchaser would
reveal no likelihood of confusion, because consumers searching for a condiment to
add hot spice to food would not select a sweetener. However, the issue is not
whether consumers would confuse the goods themselves, but rather whether they
would be confused as to the source of the goods. See, e.g., J. C. Hall Co. v. Hallmark
Cards, Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965); Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1431 (TTAB 2013); In re Rexel Inc., 223
USPQ 830 (TTAB 1984). That these two distinct condiments, pepper sauce and
Serial No. 85497617
17

agave nectar, serve to flavor foods differently does not avoid a likelihood of source
confusion.
In view of the above, we find that both pepper sauce and agave sweetener are
readily perceived as flavor additives, are used as ingredients in the same food and
beverage recipes, are likely to be purchased at the same time and are sold by the
same vendors. They are therefore related in the mind of the consumer. The second
du Pont factor weighs in favor of a finding of likelihood of confusion.
E. Channels of Trade and Classes of Consumers
There are no restrictions in the channels of trade for the goods as stated in the
application or the cited registration. Accordingly, we must presume that the goods
would be sold in all ordinary channels of trade for those goods and be sold to all
relevant classes of purchasers. See Hewlett-Packard Co., 62 USPQ2d at 1005;
Octocom, 16 USPQ2d at 1787. Applicant argues that its pepper sauce is a “specialty
food product [sold] in a niche market” whereas agave sweetener is more “generic,”17
but applicant has demonstrated neither. The balance of the evidence of record is
likewise inconclusive on this point; it shows only that the goods are sold through the
same online grocery stores, but not that they are displayed on the same web page.
What the evidence does show, however, is that members of the general public can
purchase both products through, at least, online grocery stores, and can use both
products in a single recipe. Thus, the classes of consumers are the same. To this
extent, we find this du Pont factor favors a finding of likelihood of confusion.

17 Applicant’s April 29, 2013, request for reconsideration.
Serial No. 85497617
18

F. Purchaser Sophistication
Applicant argues that there is a vast variety of pepper sauces, each having a
unique flavoring and taste, unlike agave sweeteners, which are essentially used as
a sugar substitute and have only one basic taste. Because of this, applicant argues
that her purchasers are discriminating and brand-loyal, whereas purchasers of
agave, as with sugar, “would likely choose the least expensive sweetener, regardless
of brand.”18 There is no support in the record for applicant’s assertion; to the
contrary, both pepper sauce and agave sweeteners are relatively inexpensive items
that would tend to be purchased without much care by members of the general
public. Applicant’s website advertises her product at $4.00 for a single bottle; $10.00
for three bottles.19 The pages from the Giant, Safeway, and Wegmans online stores,
printed out by the examining attorney, advertise similar-sized bottles of both
pepper sauces and organic agave sweetener (the registrant’s website indicates that
its agave sweetener is “100% organic”) for under $10 per bottle.20 Generally, casual
purchasers of low-cost, every-day consumer items exercise less care in their
purchasing decisions and are more likely to be confused as to the source of the
goods. Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 223
USPQ 1281 (Fed. Cir. 1984); Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d
1511 (TTAB 2009). The facts of record do not convince us that consumers of pepper
sauces would necessarily make careful, as opposed to casual, purchases. Moreover,

18 Applicant’s Brief at 16; 14 TTABVUE 17.
19 At http://chanticopeppersauce.com. Attached to June 12, 2013, denial of request for
reconsideration.
20 Attached to Office action dated October 31, 2012.
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