Good Health Natural Foods, Inc.

Trademark Trial and Appeal Board

Jun 4, 2004

No. 75303187 (T.T.A.B. Jun. 4, 2004)

Mailed: June 4, 2004
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Good Health Natural Foods, Inc.
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Serial No. 75303187
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Eric D. Paulsrud of Leonard, Street and Deinard for Good
Health Natural Foods, Inc.
Linda M. King, Trademark Examining Attorney, Law Office 116
(Meryl Hershkowitz, Managing Attorney).
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Before Hanak, Walters and Chapman, Administrative Trademark
Judges.
Opinion by Chapman, Administrative Trademark Judge:
On June 4, 1997, Good Health Natural Foods, Inc. (a
California corporation) filed an application to register on
the Principal Register the mark QUILT for “crackers.” The
application was based on applicant’s assertion of a bona
fide intention to use the mark in commerce. On September
16, 2002, applicant filed an Amendment to Allege Use
(asserting a date of first use of September 1997), which
was accepted by the Examining Attorney.
THIS DISPOSITION IS
NOT CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 75303187
2
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when applied to its identified goods, so
resembles the registered mark COOKIQUILT for “cookies,
scones, crackers, biscuits, croissants, cakes, pies, bakery
goods and honey,”1 as to be likely to cause confusion,
mistake or deception.
When the refusal was made final, applicant appealed.
Briefs have been filed, but an oral hearing was not
requested.
We affirm the refusal to register. In reaching this
conclusion, we have followed the guidance of the Court in
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also, In re Majestic Distilling
Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and
the similarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976). See also, In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
1 Registration No. 2362601, issued June 27, 2000.
Ser. No. 75303187
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Applicant explains its position as follows (reply
brief, p. 1):
…Applicant focuses on the first DuPont
factor, similarity or dissimilarity of
the marks, because the Board has
recognized that this factor alone is
often controlling. Applicant
acknowledges that the recitation of
goods for the registered mark includes
“crackers,” which are identical to
applicant’s goods, and that there is no
“channels of trade” limitation in the
registered mark. Thus, applicant
acknowledges that if the marks
themselves (when properly considered in
their entirety) are confusingly
similar, applicant is unlikely to
prevail solely on the basis of the
remaining DuPont factors.
Applicant specifically contends that the marks should
not be dissected, and when considered as a whole the
registered mark COOKIQUILT is a unitary mark with no
separable impression of the word “QUILT” alone; that the
term “COOKI” is not descriptive of crackers; that the
marks, as a whole, are not similar in appearance, sound,
connotation or commercial impression; and that this single
DuPont factor is dispositive herein. (Applicant had argued
in its opening brief that purchasing decisions about food
are not “impulse” purchases, but rather are made by “health
conscious” consumers who are sophisticated. See Brief, pp.
5-6.)
Ser. No. 75303187
4
The Examining Attorney argues that the dominant
feature of the registered mark is QUILT, which is arbitrary
and distinctive in connection with the involved goods; that
when considered in their entireties, the marks QUILT and
COOKIQUILT are similar in sound, appearance, connotation
and commercial impression; that one item of the
registrant’s and applicant’s respective goods (“crackers”)
is identical, and several others (e.g., cookies, scones,
biscuits, bakery goods) are related snack food items; that
the goods are sold to the same classes of purchasers
through the same channels of trade; that there is no
support in the record for applicant’s assertion that the
purchasers of these types of food items are “health
conscious” and “sophisticated”; and that doubt is resolved
in registrant’s favor.
We turn first to a consideration of applicant’s goods
and those of the cited registrant. We find that
applicant’s goods are in part identical (crackers) and are
otherwise related to the goods in the cited registration.
Applicant did not argue to the contrary.
Likewise applicant did not argue, and we do not find,
any differences in the channels of trade or purchasers. We
must presume, given the identifications (neither of which
is limited), that the goods travel in the same channels of
Ser. No. 75303187
5
trade, and are purchased by the same classes of purchasers.
See Canadian Imperial Bank of Commerce v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
“When marks would appear on virtually identical goods
or services, the degree of similarity necessary to support
a conclusion of likely confusion declines.” Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
Turning then to a consideration of the marks, it is
well settled that marks must be considered in their
entireties because the commercial impression of a mark on
an ordinary consumer is created by the mark as a whole, not
by its component parts. This principle is based on the
common sense observation that the overall impression is
created by the purchaser’s cursory reaction to a mark in
the marketplace, not from a meticulous comparison of it to
others to assess possible legal differences or
similarities. See 3 J. Thomas McCarthy, McCarthy on
Trademarks and Unfair Competition, §23:41 (4th ed. 2001).
See also, Puma-Sportschuhfabriken Rudolf Dassler KG v.
Roller Derby Skate Corporation, 206 USPQ 255 (TTAB 1980).
That is, the proper test in determining likelihood of
confusion does not involve a side-by-side comparison of the
marks, but rather must be based on the similarity of the
Ser. No. 75303187
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general overall commercial impressions engendered by the
involved marks. Stated another way, the test involves the
recollection of the average purchaser, who normally retains
a general rather than specific impression of the many
trademarks encountered; that is, a purchaser’s fallibility
of memory over a period of time must also be kept in mind.
See Grandpa Pidgeon’s of Missouri, Inc. v. Borgsmiller, 477
F.2d 586, 177 USPQ 573 (CCPA 1973); and Spoons Restaurants
Inc. v. Morrison, Inc., 23 USPQ2d 1735 (TTAB 1991), aff’d
unpub’d (Fed. Cir. June 5, 1992). This is particularly
true for goods such as those involved herein which are
inexpensive and may be purchased on impulse.
In this case, the only word in applicant’s mark is
QUILT, which is identical to the second part of
registrant’s compound word mark, COOKIQUILT. The word
“quilt” is an arbitrary word in the context of applicant’s
and registrant’s respective food products. There is no
indication in the record that the strength of the arbitrary
term “quilt” is at all compromised by third-party use of
the same or similar terms.
While registrant’s mark includes another term, which
is the first term in its mark, it is likely that purchasers
will assume that applicant’s mark QUILT is simply a
variation of the registrant’s mark, COOKIQUILT, and, thus,
Ser. No. 75303187
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that applicant’s QUILT crackers are one variety of
registrant’s COOKIQUILT crackers, or vice versa. See In re
Dixie Restaurants Inc., supra.
When considered in their entireties, we find that the
respective marks are sufficiently similar in overall
commercial impression that, when used on the identical
goods involved herein, confusion as to source is likely.
See In re Azteca Restaurant Enterprises Inc., 50 USPQ2d
1209 (TTAB 1999).
The cases cited by applicant do not persuade us of a
different result herein. (For example, the case of Mr.
Hero Sandwich Systems, Inc. v. Roman Meal Co., 781 F.2d
884, 228 USPQ 364 (Fed. Cir. 1986) involved an inter partes
cancellation, the involved marks were ROMAN with a design
and ROMANBURGER, the channels of trade were specifically
different, and the marks had co-existed for almost 20 years
with no evidence of actual confusion; and the case of
Champagne Louis Roederer S.A. v. Delicato Vineyards, 148
F.3d 1373, 47 USPQ2d 1459 (Fed. Cir. 1998) involved an
inter partes opposition wherein the marks CRISTAL and
CRYSTAL CREEK were found to have different meanings.)
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.