Hungry Pet Nutrition LLC

Trademark Trial and Appeal Board

Mar 11, 2021

88625423 (T.T.A.B. Mar. 11, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 11, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Hungry Pet Nutrition LLC
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Serial No. 88625423
_____
Molly B. Markley of Young Basile Hanlon & MacFarlane, P.C.,
for Hungry Pet Nutrition LLC.

Miroslav Novakovic, Trademark Examining Attorney, Law Office 108,
Kathryn Coward, Managing Attorney.
_____
Before Cataldo, Lynch, and Lebow,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
I. Background and Evidentiary Matter
Hungry Pet Nutrition LLC (“Applicant”) seeks registration on the Principal
Register of the mark SUPERFOOD FOR SUPERDOGS in standard characters, with
a disclaimer of SUPERFOOD FOR DOGS, for “dog food, namely, dry kibbles for dogs
only; none of the above including dog snacks, dog treats, pet snacks or pet treats” in
Serial No. 88625423
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International Class 31.1 The Examining Attorney has refused registration under
Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a likelihood of confusion
with the previously registered mark on the Principal Register, SUPERFOOD
SNACKS FOR DOGS in standard characters, with a disclaimer of SNACKS FOR
DOGS, for “pet food; edible pet treats; edible organic pet treats for dogs; edible vegan
pet treats for dogs” in International Class 31.2 After the Examining Attorney made
the refusal final, Applicant filed three requests for reconsideration and appealed. The
Examining Attorney denied the requests for reconsideration, the appeal then
proceeded, and has been fully briefed. For the reasons set forth below, we affirm the
refusal to register.
We note that Applicant attached exhibits to its Appeal Brief,3 which is neither a
convenience, nor a courtesy. Life Zone Inc. v. Middleman Grp. Inc., 87 USPQ2d 1953,
1955 (TTAB 2008) (evidence attached to briefs will almost always be either untimely
or duplicative, and in either event should not be filed); see also 37 C.F.R. § 2.142(b)(3)
(“Citation to evidence in briefs should be to the documents in the electronic
application record by date, the name of the paper under which the evidence was

1 Application Serial No. 88625423 was filed September 20, 2019, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an alleged bona fide intent to use the mark in
commerce. As originally filed, the drawing of the mark in the application was SUPERFOOD
FOR SUPER DOGS, but in its January 27, 2020 Request for Reconsideration, Applicant
amended the mark to eliminate the space between SUPER and DOGS. No corresponding
amendment of the disclaimer was submitted.
2 Registration No. 5724123 issued on April 9, 2019.
3 6 TTABVUE 13-163 (Applicant’s Brief, Exhibits). References to the briefs on appeal refer to
the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket entry
number; and after this designation are the page references, if applicable.
Serial No. 88625423
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submitted, and the page number in the electronic record”). The entire record from
prosecution of the application is readily available to the Board.
II. Likelihood of Confusion
Our determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). The Board considers only those
DuPont factors for which there is evidence and argument. In re Guild Mortg. Co., 912
F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); see also Stratus Networks,
Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 2020 USPQ2d 10341, **3 (Fed.
Cir. 2020) (“Not all DuPont factors are relevant in each case . . . .”). Two key
considerations are the similarities between the marks and the relatedness of the
goods. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir.
2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24,
29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”).
A. The Relatedness of the Goods
In analyzing the relatedness of the goods under the second DuPont factor, we look
to the identifications in the application and cited registration. See Detroit Ath. Co.,
128 USPQ2d at 1051; Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d
Serial No. 88625423
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1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Comput.
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). It is sufficient for
a finding of likelihood of confusion as to a particular class if relatedness is established
for any item of identified goods within that class in the application. Tuxedo Monopoly,
Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
The cited registration broadly identifies, inter alia, “pet food,” and we find that
this encompasses Applicant’s “dog food, namely, dry kibbles for dogs only; none of the
above including dog snacks, dog treats, pet snacks or pet treats.” Where, as here, the
registrant’s identification of goods is broad, we presume that it encompasses all goods
of the type identified. In re Country Oven, 2019 USPQ2d 443903, *4 (TTAB 2019);
Southwestern Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015).
“Pet food” is defined as “plant or animal material intended for consumption by pets.
Typically sold in pet stores and supermarkets, it is usually specific to the type of
animal, such as dog food or cat food.”4 Thus, the registrant’s “pet food” embraces all
types of “dog food,” including the specific type set forth in Applicant’s identification.
While Applicant’s identification explicitly excludes “dog snacks, dog treats, pet
snacks or pet treats,” this does not avoid the overlap between the goods in the
application and in the cited registration. As noted above, the identified goods in the
cited registration are not limited to snacks or treats, but instead cover all “pet food.”

4 January 19, 2020 Office Action at 2 (Wikipedia.com). Page references herein to the
application record refer to the online database of the USPTO’s Trademark Status &
Document Retrieval (“TSDR”) system.
Serial No. 88625423
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The goods therefore are legally identical in part. The second DuPont factor weighs
in favor of likely confusion.
B. The Trade Channels and Classes of Consumers
Turning to the trade channels and classes of consumers, because the goods in the
cited registration are in part legally identical to Applicant’s, and there are no
restrictions or limitations to the channels of trade in the respective identifications,
we presume that the goods travel through at least some of the same channels of trade
to the same classes of purchasers. See Am. Lebanese Syrian Assoc. Charities Inc. v.
Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011) (where the
services were legally identical, “the marketing channels of trade and targeted classes
of consumers and donors are the same”); see also In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board entitled to rely on this legal
presumption in determining likelihood of confusion). Thus, the third DuPont factor
weighs in favor of likely confusion.
C. The Strength of the Cited Mark
Before we turn to the similarity of the marks, we consider Applicant’s contention
that the cited mark is weak, as that will affect the scope of its protection. In
determining the strength of a mark, we consider both its inherent conceptual strength
based on the nature of the mark itself and its commercial strength, based on the
marketplace recognition value of the mark. See In re Chippendales USA, Inc.,
622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is
measured both by its conceptual strength (distinctiveness) and its marketplace
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strength (secondary meaning).”). The strength of a mark under the fifth DuPont
factor rests on the extent to which “a significant portion of the relevant consuming
public . . . recognizes the mark as a source indicator.” Joseph Phelps Vineyards, LLC
v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017)
(citing Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005)). This factor involves assessing
the mark “‘along a spectrum from very strong to very weak.’” Id. (internal citations
omitted). Third-party registrations for the relevant goods also may be considered
powerful evidence of conceptual weakness of a term. Under the sixth DuPont factor,
proof of recent consumer exposure to third-party use of similar marks in connection
with similar goods may show commercial weakness of a mark, in that consumers
generally distinguish among marks for the same goods consisting of or containing the
term at issue (here, SUPERFOODS) based on minor distinctions. See Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir.
2015).
According to Applicant, “[t]he cited mark is a very weak mark and, while
deserving of protection from the use of confusingly similar marks, it does not warrant
the prohibition of common terms used to describe the goods.”5 Applicant points to the
disclaimer of SNACKS FOR DOGS in the cited registration, and then contends that
the only additional word in the mark, SUPERFOOD, is “highly descriptive”6 and has

5 6 TTABVUE 7-8 (Applicant’s Brief).
6 Id. at 4.
Serial No. 88625423
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been weakened by widespread use in the industry. As a result, Applicant maintains
that “[m]arks using the term ‘superfood’ for food therefore should not be entitled to
broad protection against noncompetitive uses or against marks that differ in
wording.”7
Both Applicant and the Examining Attorney introduced evidence that
“superfood” refers to foods considered nutritionally dense and extremely healthy.8
The Merriam-Webster Dictionary defines the term as “a food (such as salmon,
broccoli, or blueberries) that is rich in compounds (such as antioxidants, fiber, or fatty
acids) considered beneficial to a person’s health.”9 Applicant also submitted ten third-
party registrations that include the term SUPERFOOD(S) for food items (not referred
to as pet food items),10 a representative sample of which follows:

7 Id. at 7.
8 E.g., December 3, 2019 Office Action at 5; July 15, 2020 Request for Reconsideration at 70
(“Superfoods are foods that are naturally packed with nutrients and are widely beneficial to
health and well-being”); Id. at 74 (“nutrient-packed and antioxidant-rich [foods] have been
deemed “superfoods,” an elite, headline-grabbing category of ingredients that are thought to
provide extra-special health benefits”).
9 Id. at 12 (Merriam-Webster.com).
10 As the Examining Attorney noted in his brief, three of the registrations relied on by
Applicant have been cancelled (U.S. Registration Nos. 4438193, 4397997, and 4409683), and
therefore we do not consider them. An expired or cancelled registration is evidence of nothing
but the fact that it once issued. Sunnen Prods. Co. v. Sunex Int’l Inc., 1 USPQ2d 1744, 1747
(TTAB 1987).
Serial No. 88625423
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 , with FOODS and PERUVIAN SUPERFOODS
disclaimed, for “dried fruits in powder form; dried vegetables in powder form”
in International Class 29 and “cocoa” in International Class 30.11
 , with SUPERFOOD disclaimed, for
“supplements derived from superfoods, namely, food supplements, dietary
and nutritional supplements, herbal supplements, fruit and vegetable
powders for use as a dietary supplement” in International Class 5.12
 BALANCE THE SUPERFOOD SHOT, with SUPERFOOD SHOT
disclaimed,13 and SUPERFOOD SHOT on the Supplemental Register,14 both
registrations for “fruit and vegetable based drinks” in International Class 30,
and with the same owner.

11 April 10, 2020 Request for Reconsideration at 23-24 (Reg. No. 6005686).
12 Id. at 25-26 (Reg. No. 6008795).
13 Id. at 27-28 (Reg. No. 5997921).
14 Id. at 29 (Reg. No. 5998718).
Serial No. 88625423
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 SUPERFOOD TORTILLAS on the Supplemental Register, with TORTILLAS
disclaimed, for “tortillas” in International Class 30.15
 FORBIDDEN SUPERFOODS, with SUPERFOODS disclaimed, for “nut
butters made from pecans, cashews and almonds; energy bites, namely, nut,
seed and fruit-based snack bars” in International Class 29 and “granola; seed
and nut breads” in International Class 30.16
The Examining Attorney criticized the third-party registration evidence as
involving “different types of food for human consumption,” noting that “the submitted
registrations appear to be for goods that are predominantly different from or
unrelated to those identified in applicant’s application.”17
To address the Examining Attorney’s criticism of its third-party registration
evidence, Applicant introduced evidence of third parties using the term “superfood”
in connection with dog foods. Representative examples include:
 An article from the FoodDive website noting that “[p]opular dog food brands
are introducing quinoa, ancient grains, blueberries, pumpkin and spinach –
among other superfoods – as ingredients.”18
 An article from the PawLife website titled “13 Superfoods that are Safe for
Dogs.”19

15 Id. at 31-32 (Reg. No. 5998696).
16 Id. at 32-33 (Reg. No. 5981254).
17 May 12, 2020 Denial of Reconsideration.
18 July 15, 2020 Request for Reconsideration at 4.
19 Id. at 19.
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 An article from the Holistapet website titled “The 5 Best Superfoods For
Your Dog’s Diet” that notes that ‘Superfood’ is a popular term often used in
the food and health category…. They are specific foods that are publicly
agreed to be highly beneficial towards nutritional health.”20
 An online article in DogsNaturallyMagazine on “Three Super Foods that Will
Make Any Dog Healthier.”21
 The EntirelyPets website promotes “7 Superfoods to Add to Your Dog’s Diet,”
noting that “Superfoods are dense with NUTRITION that benefits both
humans and canines alike.”22
 The website of Earthborn Holistic promotes its dog food “with ancient grains
& superfoods.”23
The Examining Attorney discounts the third-party evidence by alleging that “none
of these websites use SUPERFOOD as a trademark or service mark for pet foods, and
only one website uses SUPERFOOD to describe ingredients of the goods.”24 He
further contends that Applicant’s weakness argument as to SUPERFOOD in
connection with pet food “is unpersuasive because it is not corroborated by virtually
any evidence.”25

20 Id. at 36-47.
21 Id. at 57-61.
22 Id. at 49-56.
23 Id. at 7.
24 8 TTABVUE 13 (Examining Attorney’s Brief).
25 Id.
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Considering the record as a whole, we find that the cited mark is somewhat weak,
given that it consists of the disclaimed descriptive or generic wording SNACKS FOR
DOGS preceded by the term SUPERFOOD, shown by the record to refer to extremely
healthy and nutritious foods, in the context of both human and pet foods. In re Guild
Mortg. Co., 2020 USPQ2d 10279 *3 (TTAB 2020) (“[E]vidence of third-party
registrations is relevant to ‘show the sense in which . . . a mark is used in ordinary
parlance.’”). Based on the third-party use and registration evidence, SUPERFOOD
has this understood significance with regard to food that may be eaten by pets as well
as humans.
The probative value of the third-party registration evidence is moderated because
the registrations do not identify pet food, and therefore differ from the goods
identified in the cited registration. Tao Licensing, LLC v. Bender Consulting Ltd., 125
USPQ2d 1043, 1057 (TTAB 2017) (“third-party registration evidence that does not
equate to proof of third-party use may bear on conceptual weakness if a term is
commonly registered for similar goods or services.” (emphasis added) (citing
Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976)).
However, the Internet articles about introducing “superfood” into a pet’s diet show
that the popularity of “superfood” in the human diet has carried over to the canine
diet. The record as a whole suggests that consumers would understand SUPERFOOD
in the registrant’s mark to refer to the nutritious and healthy nature of the pet food
identified in the cited registration.
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We agree with the Examining Attorney’s characterization of the third-party use
evidence as generally not showing that others in the pet food industry use
SUPERFOOD in whole or part in the manner of a mark, and therefore does not
support commercial weakness. Ultimately, the evidence shows the general meaning
of SUPERFOOD, and includes descriptive references to SUPERFOOD in the context
of feeding pets. The record reflects some degree of conceptual weakness of the term
SUPERFOOD shared by the cited mark and Applicant’s mark. See Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797
F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (“some segment that is common
to both parties’ marks may have ‘a normally understood and well-recognized
descriptive or suggestive meaning, leading to the conclusion that that segment is
relatively weak’”) (quoting Juice Generation, 115 USPQ2d at 1674 (quoting 2 J.
Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:90
(4th ed. 2015))).
D. Similarity of the Marks
We now compare the marks “in their entireties as to appearance, sound,
connotation and commercial impression.” Palm Bay Imps., 73 USPQ2d at 1691
(quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be
sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126
USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019)
(citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). We assess not whether
the marks can be distinguished in a side-by-side comparison, but rather whether
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their overall commercial impressions are so similar that confusion as to the source of
the goods offered under the respective marks is likely to result. Coach Servs. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); see
also Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012).
Where the goods are legally identical, as they are in this case, the degree of
similarity between the marks required to support a finding of likelihood of confusion
is not as great as in the case of diverse goods. See In re Bay State Brewing Co., 117
USPQ2d 1958, 1960 (TTAB 2016) (citing Coach Servs., 101 USPQ2d at 1721); United
Global Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014) (quoting
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698,
1700 (Fed. Cir. 1992)).
We compare Applicant’s mark, SUPERFOOD FOR SUPERDOGS, to the cited
mark, SUPERFOOD SNACKS FOR DOGS. We find the marks similar in appearance
and sound because of their common structure and wording. Both marks begin with
SUPERFOOD, include FOR in the middle, and end with DOGS. See In re Detroit
Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (same word
order and cadence in DETROIT ATHLETIC CO. and DETROIT ATHLETIC CLUB;
“These similarities go a long way toward causing confusion among consumers.”).
While we have found that the shared term, SUPERFOOD, is somewhat conceptually
weak, it has prominence as the first word in each mark, and given the nature and
similarity of the remaining wording, Applicant’s mark is overall too similar to the
cited mark.
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The differences between the marks come from Applicant’s inclusion of SUPER as
part of the compound word SUPERDOGS and the registrant’s inclusion of the
disclaimed generic word SNACKS. While these differences create some distinction in
the way the marks look and sound, we find the marks overall more similar than
dissimilar, particularly because we must consider the marks “‘in light of the fallibility
of memory.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir.
2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565
F.2d 683, 196 USPQ 1 (CCPA 1977)).
The marks also convey a very similar meaning and commercial impression – that
the products consist of healthy, nutritious food for dogs. As to the significance of the
variations in wording, first, the cited mark’s inclusion of the disclaimed generic or
descriptive word SNACKS, defined as “a light meal: food eaten between regular
meals; also: food suitable for snacking,”26 merely refers to food – the goods – and
therefore does little to change the connotation or impression. The fact that the cited
mark provides its “superfood” in the form of “snacks,” a mere subcategory of that food,
does not diminish the overall similar connotations of the marks. Second, Applicant’s
mark’s use of SUPERDOGS, rather than DOGS by itself, merely adds a laudatory
modifier, defined as “of high grade or quality,”27 that contributes only minimally to
the overall meaning and commercial impression of the marks.28 In light of the overall

26 December 3, 2019 Office Action at 41 (Merriam-Webster.com).
27 December 3, 2019 Office Action at 30 (Merriam-Webster.com).
28 Applicant’s submission of three third-party registrations of the marks SUPERDOGS for
entertainment services, SUPERDAWG for fast food restaurants, and KRYPTO THE
SUPERDOG for toys, April 10, 2020 Request for Reconsideration at 49-53, involve unrelated
Serial No. 88625423
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structure and wording of the marks, we find them similar in meanining and
commercial impression.
While we have considered the likelihoood of confusion cases cited by Applicant as
allegedly analogous, we do not find the nature of their comparison of the marks
applicable here. We do not agree that the other cases offer helpful guidance in our
analysis “because the critical facts of different cases almost always differ
substantially,” In re Gen. Mills IP Holdings II, LLC, 124 USPQ2d 1016, 1027 (TTAB
2017), as they do here.
Given their overall resemblance in sound, appearance, connotation and
commercial impression, we find SUPERFOOD FOR SUPERDOGS and SUPERFOOD
SNACKS FOR DOGS similar.
III. Conclusion
Regardless of some degree of conceptual weakness of the cited mark, the similarity
of the marks for legally identical goods that are presumed to move in the same
channels of trade to the same classes of customers remains sufficient to render
confusion likely.
Decision: The refusal to register Applicant’s mark is affirmed.

goods and services and do not persuade us that the use of SUPERDOGS in Applicant’s mark
sufficiently distinguishes it from the registered mark.