Ginger Strong

Trademark Trial and Appeal Board

Jan 5, 2001

No. 75523866 (T.T.A.B. Jan. 5, 2001)

1/5/01
Paper No. 12
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ginger Strong d/b/a Rubicon Orchards
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Serial No. 75/523,866
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Michael H. Baniak of Baniak Nicholas Pine & Gannon for
Ginger Strong d/b/a Rubicon Orchards.
Danielle I. Mattessich, Trademark Examining Attorney, Law
Office 101 (Jerry L. Price, Managing Attorney).
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Before Simms, Hohein and Hairston, Administrative Trademark
Judges.
Opinion by Hairston, Administrative Trademark Judge:
Ginger Strong d/b/a Rubicon Orchards has filed an
application to register the mark RUBICON for “wholesale
fresh market tree grown fruit and live fruit trees.”1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the
1 Serial No. 75/523,866 filed July 23, 1998, based upon
applicant’s bona fide intention to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/523,866
2
ground that if applicant’s mark were used in connection
with wholesale fresh market tree grown fruit, it would so
resemble each of the following marks, which are registered
to different entities, as to be likely to cause confusion,
mistake or deception:
RUBICON for “wines”2 and
for “non-alcoholic fruit juice beverages; fruit-
flavored beverages, and coconut water.”3
Applicant has appealed. Briefs have been filed, but
an oral hearing was not requested.
We turn first to the question of likelihood of
confusion vis-à-vis Registration No. 2,090,926 for, in
particular, non-alcoholic fruit juice beverages, since to
us this is the most pertinent of the cited registrations.
With respect to the similarity of the marks, we note
that applicant’s brief is silent on this factor. We find
that this amounts to a tacit concession that the marks are
virtually identical, as the Examining Attorney maintains.
2 Registration No. 1,572,288 issued December 19, 1989; renewed.
3 Registration No. 2,090,926 issued August 26, 1997.
Ser No. 75/523,866
3
Turning then to the goods, applicant argues that there
is no likelihood of confusion in this case because the
trade channels of the respective goods are completely
different and her goods are bought by sophisticated
purchasers. Applicant submitted two declarations wherein
she states that based on her experience in the fruit
growing industry, wholesale buyers of fresh fruit are
sophisticated purchasers and the channels of trade for
wholesale fresh fruit and fruit juices are different. In
addition, applicant states that there have been no
instances of actual confusion.4
The Examining Attorney, on the other hand, maintains
that wholesale fresh fruit and fruit juices are related
products because fruit is an ingredient in fruit juices and
such goods are often sold under the same mark by the same
manufacturers. Further, the Examining Attorney maintains
that applicant’s argument that applicant and registrant
will not share the same channels of trade is not well taken
inasmuch as the cited registration contains no
restrictions.
As has been frequently stated, it is not necessary
4 Although this is an intent-to-use application, we note that
applicant indicates in her second declaration that she has begun
use of the mark.
Ser No. 75/523,866
4
that the goods of the parties be similar or competitive, or
even that they move in the same channels of trade to
support a holding of likelihood of confusion. It is
sufficient that the respective goods of the parties are
related in some manner, and or that the conditions and
activities surrounding the marketing of the goods 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 producer. In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
Further, the Board has stated in the past that “[i]f the
marks are the same or almost so, it is only necessary that
there be a viable relationship between the goods or
services in order to support a likelihood of confusion.”
In re Concordia International Forwarding Corp., 222 USPQ
355, 356 (TTAB 1983).
In this case, given the absence of any limitations in
the cited registration, we must presume that registrant’s
fruit juice beverages are bought by the same purchasers as
wholesale fresh fruit, e.g., grocery stores, gourmet food
shops, and small food markets, and that such goods move in
the same channels of trade.
Ser No. 75/523,866
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Also, the Examining Attorney has submitted a number of
use-based third-party registrations which show that fresh
fruit, on the one hand, and fruit juices, on the other
hand, may emanate from the same source under the same mark.
For example, the mark SOUTHERN HOME is registered for fresh
fruit, fruit juices and fruit flavored drinks; JUICE
EVOLUTION is registered for fresh fruits and fruit juices;
APPLE HILL is registered for fresh fruit and fruit juices;
and DEWY-FRESH is registered for fresh fruits and frozen
fruit juice.
In view of the foregoing, we find that the respective
goods are sufficiently related that purchasers familiar
with registrant’s fruit juice beverages offered under the
mark RUBICON in stylized letters, would be likely to
believe, upon encountering RUBICON wholesale fresh market
tree grown fruit, that the goods originate from the same
source. An additional factor we have considered in
reaching our decision is that RUBICON is an arbitrary mark
as used in connection with fruit juice beverages. It is
well settled that arbitrary marks are accorded a wide orbit
of protection. See Aero Mayflower Transit Company, Inc. v
Snack Products, Inc., 190 USPQ 100 (TTAB 1976). In
addition, even if we had any doubts on the issue of
likelihood of confusion, such doubts would necessarily be
Ser No. 75/523,866
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resolved in favor of the registrant and against applicant
as the newcomer. In re Hyper Shoppes (Ohio), Inc., 837
F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988).
Two additional arguments made by applicant require
comment. First, while we recognize that purchasers of
wholesale fresh fruit may be expected to exercise a certain
degree of care in making their selections, such purchasers
are not immune to source confusion, especially where
related goods would be marketed under virtually identical
marks.
Second, applicant’s argument that confusion is not
likely because applicant is not aware of any incidents of
actual confusion does not persuade us that no likelihood of
confusion exists in this case. We cannot determine on this
record that there has been any meaningful opportunity for
actual confusion to have occurred in the marketplace, and
accordingly we cannot conclude that the alleged absence of
actual confusion is entitled to significant weight in our
likelihood of confusion analysis in this case. See
Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768 (TTAB
1992).
We turn next to the question of likelihood of
confusion vis-à-vis Registration No. 1,572,288 for wines.
Ser No. 75/523,866
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Although applicant’s mark and the mark in such
registration are identical, we are not persuaded that
wholesale fresh market tree grown fruit and wines are
sufficiently related that confusion is likely. We note
that the Examining Attorney made of record two used-based
third-party registrations which cover fresh grapes, on the
one hand, and wine, on the other hand. However, this
evidence is insufficient to convince us that a wine
producer would also sell fresh fruit and vice versa.
Decision: The refusal to register based on
Registration No. 2,090,926 is affirmed; the refusal to
register based on Registration No. 1,572,288 is reversed.