Island Dreamers LLC

Trademark Trial and Appeal Board

Apr 22, 2009

No. 78652613 (T.T.A.B. Apr. 22, 2009)

Mailed:
April 22, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Island Dreamers LLC
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Serial No. 78652613
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Robert C. Faber of Ostrolenk, Faber, Gerb & Soffen, LLP for
Island Dreamers LLC.

Drew Leaser, Trademark Examining Attorney, Law Office 112
(Angela Bishop Wilson, Managing Attorney).
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Before Walters, Holtzman and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Island Dreamers LLC (“applicant”) filed a use-based
application to register the mark FRUITY WIPES, in standard
character form, for goods ultimately identified as “pre-
moistened towelettes containing a cleaning agent for
cleaning fruit and vegetables,” in Class 3. Applicant
disclaimed the exclusive right to use the word “wipes.”
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s
mark is likely to cause confusion with the mark FRUIT
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78652613
2
SWIPES, in typed drawing form, for “pre-moistened
towelettes for cleaning and disinfecting fresh fruit and
vegetables,” in Class 21.1 Registrant disclaimed the
exclusive right to use the word “fruit.”
Our determination of likelihood of confusion under
Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the
factors bearing on the issue of likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities
between the marks and the similarities between the
services. See 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”).

1 Registration No. 3230375, issued April 17, 2007.
Serial No. 78652613
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A. The similarity or dissimilarity and nature of the
goods described in the application and registration.

The goods in the application and registration are so
similar as to be legally identical. Applicant is seeking
to register its mark for “pre-moistened towelettes
containing a cleaning agent for cleaning fruit and
vegetables.” The cited registration is for “pre-moistened
towelettes for cleaning and disinfecting fresh fruit and
vegetables.”
B. The similarity or dissimilarity of likely-to-continue
trade channels and classes of consumers.

Because the goods described in the application and the
cited registration are identical, we must presume that the
channels of trade and classes of purchasers are the same.
See Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003)
(“Given the in-part identical and in-part related nature of
the parties’ goods, and the lack of any restrictions in the
identifications thereof as to trade channels and purchasers,
these clothing items could be offered and sold to the same
classes of purchasers through the same channels of trade”);
In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994)
(“Because the goods are legally identical, they must be
presumed to travel in the same channels of trade, and be
sold to the same class of purchasers”).

Serial No. 78652613
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C. The conditions under which and buyers to whom sales
are made, i.e. “impulse” vs. careful, sophisticated
purchasing.

Applicant argues, without any supporting evidence, that
purchasers of towelettes for cleaning and disinfecting
fruits and vegetables will exercise a high degree of care in
making their purchases because the products are used on
foods that will be eaten. We are not persuaded on this
record that consumers exercise a high degree of care in
purchasing towelettes to clean fruit and vegetables. There
is no evidence regarding the price of the products, and
applicant does not provide any evidence regarding the
decision process used by these so-called careful and
sophisticated purchasers, the role trademarks play in their
decision making process, or how observant and discriminating
they are in practice. Moreover, since these cleaning
towelettes are available to the general public, they may be
purchased by both discriminating and less careful consumers.
E. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We now turn to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
De Nemours & Co., 177 USPQ at 567. In a particular case,
Serial No. 78652613
5
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd., 9
USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6
USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks, we
are mindful that where, as here, the goods are identical,
the degree of similarity necessary to find likelihood of
confusion need not be as great as where there is a
recognizable disparity between the services. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Schering-Plough
HealthCare Products Inc. v. Ing-Jing Huang, 84 USPQ2d 1323,
1325 (TTAB 2007); Jansen Enterprises Inc. v. Rind, 85
USPQ2d 1104, 1108 (TTAB 2007).
Furthermore, the test 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 so that
confusion as to the source of the goods offered under the
respective marks is likely to result. San Fernando
Electric Mfg. Co. v. JFD Electronics Components Corp., 565
F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants
Inc. v. Morrison Inc., 23 USPQ 1735, 1741 (TTAB 1991),
aff’d unpublished, No. 92-1086 (Fed. Cir. June 5, 1992).
The proper focus is on the recollection of the average
Serial No. 78652613
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customer, who retains a general rather than specific
impression of the marks. Winnebago Industries, Inc. v.
Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975).
FRUITY WIPES and FRUIT SWIPES are similar in
appearance because the words “Fruit” and “Fruity” are
similar and they are the first word in each mark. In
addition, “Wipes” and “Swipes” are similar because they
differ only by the addition of the letter “S” at the
beginning of the word “Swipes.”
FRUITY WIPES and FRUIT SWIPES are aurally similar.
The words “Fruit” and Fruity” differ only by the “ē” sound
at the end of “Fruity,” and “Wipes” and “Swipes” rhyme.
To determine the meaning of the marks, we must define
their component parts. “Fruit” is “the edible part of a
plant developed from a flower, with any accessory tissues,
as the peach, mulberry, or banana.” 2 “Fruity” is something
“resembling fruit; having the taste or smell of fruit.”3

2 Random House Dictionary of the English Language (Unabridged) p.
772 (2nd ed. 1987). The Board may take judicial notice of
dictionary evidence. University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff’d,
703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
3 Id.
Serial No. 78652613
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“Wipes” when used in connection with towelettes are
“something, such as a towel or tissue, used for wiping.”4
“Swipes,” on the other hand, mean “a sweeping blow or
stroke.”5 Accordingly, when used in connection with a
cleaning towelette, the word “Swipes” is synonymous with
“Wipes” because it engenders the commercial impression of
rubbing or polishing.
In view of the foregoing, applicant’s mark FRUITY
WIPES connotes a towel with fruity characteristics while
the registered mark FRUIT SWIPES means fruity strokes.
While the marks have somewhat different meanings, they
engender similar commercial impressions when considered in
connection with the identified goods: a towel-like product
for cleaning fruit.
In analyzing the similarity or dissimilarity of the
marks, we find that the similarities in appearance, sound,
and commercial impression outweigh any differences between
the marks.
E. Balancing the du Pont factors.
In view of the facts that the marks are similar, the
goods are the same, and because we must presume that the

4 The American Dictionary of the English Language, p. 2048,
attached as Exhibit B to applicant’s March 20, 2008 Response.
5 Id at 1815.
Serial No. 78652613
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goods move in the same channels of trade and are available
to the same classes of consumers, we find that applicant’s
registration of the mark FRUITY WIPES for “pre-moistened
towelettes containing a cleaning agent for cleaning fruit
and vegetables” is likely to cause confusion with FRUIT
SWIPES for “pre-moistened towelettes for cleaning and
disinfecting fresh fruit and vegetables.”
Decision: The refusal to register is affirmed.