Gooch Foods, Inc.v.Larossa

Trademark Trial and Appeal Board

May 29, 2001

No. 91112490 (T.T.A.B. May. 29, 2001)

5/29/01
Paper No. 18
TJQ
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Gooch Foods, Inc.
v.
Larossa USA, Inc.
_____
Opposition No. 112,490
to application Serial No. 75/359,224
filed on September 18, 1997
_____
Frank P. Presta of Nixon & Vanderhye for Gooch Foods, Inc.
Mark C. Gregory of Huntley & Associates for Larossa USA,
Inc.
______
Before Seeherman, Hanak and Quinn, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application was filed by Larossa USA, Inc. to
register the mark shown below
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Opposition No. 112,490
2
for “processed fruits and vegetables, tuna and processed
anchovies.”1
Registration was opposed by Gooch Foods, Inc. under
Section 2(d) of the Trademark Act on the ground of
likelihood of confusion with opposer’s six previously used
and registered marks. The registered marks are as follows:
for “alimentary paste products;”2
for “butter, macaroni products, noodles and pastina, a
macaroni product cut up in small fanciful shapes;”3
for “alimentary pastes, pizza pie mix, and canned sauce
therefor, canned spaghetti sauces, with meat, without meat,
1 Application Serial No. 75/359,224, filed September 18, 1997,
alleging dates of first use of October 31, 1996. The application
includes the following statement: “The English translation of
all foreign wording in the mark is ‘The Red One.’”
2 Registration No. 313,418, issued May 29, 1934; renewed.
3 Registration No. 389,868, issued August 26, 1941; renewed.
Opposition No. 112,490
3
with mushrooms and marinara, ravioli with meat in sauce,
meat balls in sauce, and sausage links with sauce;”4
for “alimentary pastes, pizza pie mix, and canned sauce
therefor, canned spaghetti sauces, with meat, without meat,
with mushrooms and marinara, ravioli with meat in sauce, and
cheese ravioli in sauce, meat balls in sauce, sausage links
with sauce, and canned soups;”5
for “spaghetti, lasagna, macaroni, noodles and bread
crumbs;”6 and LA ROSA in typed form for “alimentary pastes
and bread crumbs.”7 The registrations indicate that “La
Rosa” translated into English means “The Rose.”
Applicant, in its answer, denied the salient
allegations of likelihood of confusion.
The record consists of the pleadings; the file of the
involved application; certified copies of opposer’s pleaded
4 Registration No. 623,193, issued March 13, 1956; renewed.
5 Registration No. 651,541, issued September 10, 1957; renewed.
6 Registration No. 1,390,117, issued April 15, 1986; combined
Sections 8 and 15 affidavit filed.
7 Registration No. 1,396,003, issued June 3, 1986; combined
Sections 8 and 15 affidavit filed.
Opposition No. 112,490
4
registrations; and applicant’s answers to certain of
opposer’s interrogatories introduced by way of opposer’s
notice of reliance. Applicant did not take testimony or
offer any evidence. Both parties filed briefs on the case.
An oral hearing was not requested.
Before turning to the merits of the opposition, we
direct our attention to an evidentiary matter arising from
the attachments to applicant’s brief on the case at final
hearing. As noted above, applicant neither took testimony
nor offered any evidence, yet several documents not properly
made of record were attached to its brief. Opposer, in its
reply brief, has objected to the attachments.
The objection is well taken. Exhibits and other
evidentiary materials attached to a party’s brief on the
case can be given no consideration unless they were properly
made of record during the time for taken testimony. TBMP
§705.02 and cases cited therein, e.g., Maytag Co. v.
Luskin’s, Inc., 228 USPQ 747 (TTAB 1986). Further, factual
statements made in a party’s brief on the case can be given
no consideration unless they are supported by evidence
properly introduced at trial. Statements in a brief have no
evidentiary value, except to the extent that they may serve
as admissions against interest. TBMP §706.02.
In the present case, none of the materials attached to
applicant’s brief were properly made of record.
Opposition No. 112,490
5
Accordingly, they have not been considered in making our
decision. Further, any factual statement made on the basis
of this evidence has not been considered.8
We now turn to opposer’s likelihood of confusion claim.
With respect to priority of use, opposer’s ownership of
valid and subsisting registrations establishes opposer’s
priority. King Candy Co. v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
Our 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.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973).
In any likelihood of confusion analysis, two key
considerations are the similarities or dissimilarities
between the marks and the similarities or dissimilarities
between the goods. Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Insofar as the parties’ goods are concerned, we start
with the premise that they need not be identical or even
competitive to support a holding of likelihood of confusion.
It is sufficient that the goods are so related or that
8 As a final matter, applicant’s allegations of opposer’s
misconduct in this proceeding are not supported by the record
and, more importantly, are irrelevant to the merits of the
likelihood of confusion claim.
Opposition No. 112,490
6
conditions surrounding their marketing are such that they
are encountered by the same persons who, because of the
relatedness of the goods and the similarities between the
marks, would believe mistakenly that the goods originate
from or are in some way associated with the same producer.
Hercules Inc. v. National Starch and Chemical Corp., 223
USPQ 1244, 1247 (TTAB 1984).
Opposer’s and applicant’s goods are related in a
general sense in that they can be classified broadly as
“food products.” In saying this, we recognize that there is
no per se rule in likelihood of confusion cases involving
foods. Interstate Brands Corp. v. Celestial Seasonings,
Inc., 576 F.2d 926, 198 USPQ 151, 153 (CCPA 1978). More
specifically, however, the goods herein are complementary.
In this connection, we find that, for example, applicant’s
anchovies or processed vegetables could be used as toppings
with registrant’s pizza pie mix and canned sauces therefor.
Further, applicant’s processed fruits and vegetables would
encompass tomatoes (a fact borne out by the inclusion of a
tomato in applicant’s cornucopia design),9 a major
ingredient of products such as the sauces (spaghetti, pizza,
9 The question of whether a tomato is a fruit or a vegetable is
of no moment given that both processed fruits and vegetables are
listed in applicant’s identification of goods.
Opposition No. 112,490
7
and marinara) identified in registrant’s identification of
goods.10
The parties’ goods move through the same channels of
trade (e.g., grocery stores) to the same classes of
purchasers. Given the nature of the specific food products,
it also is reasonable to assume that they are relatively
inexpensive and are the subjects of impulse purchases. See:
Specialty Brands, Inc. v. Coffee Bean Distributors, Inc.,
748 F.2d 669, 223 USPQ 1281, 1282 [when both products are
relatively inexpensive, comestible goods subject to frequent
replacement, purchasers of such products have been held to a
lesser standard of purchasing care].
In comparing the marks, although we stress that we have
considered the marks in their entireties, “there is nothing
improper in stating that, for rational reasons, more or less
weight has been given to a particular feature of the mark,
provided [that] the ultimate conclusion rests on
consideration of the marks in their entireties.” In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). We find that the word portions of the parties’
marks dominate over any design feature therein, and that the
word portion LA ROSSA in applicant’s mark is similar to
10 We take judicial notice of the dictionary definition of
“marinara:” “a highly seasoned sauce of tomatoes, garlic, and
spices.” The Random House Dictionary of the English Language (2d
ed. unabridged 1987).
Opposition No. 112,490
8
registrant’s LA ROSA marks. See: Giant Food, Inc. v.
Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 395
(Fed. Cir. 1983); and In re Appetito Provisions Co., 3 USPQ
1553 (TTAB 1987). The literal portion would be the portion
most likely to be remembered by consumers and to be used in
calling for the goods. The terms LA ROSSA and LA ROSA are
similar in terms of sound and appearance. Although the
terms have different meanings when translated into English,
many consumers may not even be aware of the English
translations. In any event, this difference is outweighed
by the fact that the terms sound and look alike.
In sum, the general overall commercial impression
engendered by the marks is similar. It is the general
overall commercial impression engendered by the marks that
must determine, due to the fallibility of memory and the
consequent lack of perfect recall, whether confusion as to
source or sponsorship is likely. The proper emphasis is
thus on the recollection of the average purchaser, who
normally retains a general rather than a specific impression
of trademarks. In re United States Distributors, Inc., 229
USPQ 237, 239 (TTAB 1986).
To the extent that any of the differences between the
parties’ marks and goods cast doubt on our finding of
likelihood of confusion, we resolve that doubt, as we must,
Opposition No. 112,490
9
in favor of the prior registrant. Giant Food, Inc. v.
Nation’s Foodservice, Inc., supra.
Decision: The opposition is sustained, and
registration to applicant is refused.