Kalmbach Feeds, Inc.

Trademark Trial and Appeal Board

Sep 26, 2008

No. 77109062 (T.T.A.B. Sep. 26, 2008)

Mailed: September 26, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re Kalmbach Feeds, Inc.
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Serial No. 77109062
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Jeffrey S. Standley of Standley Law Group LLP for Kalmbach
Feeds, Inc.

Emily K. Carlsen,1 Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
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Before Rogers, Bergsman, and Wellington, Administrative
Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Kalmbach Feeds, Inc., applicant, filed an application
to register the mark ORGANIC HARVEST FEEDS (in standard
character form) on the Principal Register for goods
ultimately identified as “mixed animal feed” in
International Class 31.2 The application contains
disclaimers of the words ORGANIC and FEEDS.

1 Appearing for first time on brief. We note that another
examining attorney issued all of the Office actions during the
prosecution of the application.
2 Application Serial No. 77109062 is an intent-to-use application
filed under Section 1(b) of the Trademark Act.
THIS OPINION
IS NOT A PRECEDENT
OF THE TTAB
Serial No. 77109062
2
The examining attorney has refused registration of
applicant's mark pursuant to Section 2(d) of the Trademark
Act, 15 U.S.C. 1052(d), on the ground that applicant’s mark
so resembles the previously registered mark HARVEST (in
typeset characters) for goods that include “livestock
feeds” in International Class 31,3 that, when used on
applicant’s identified goods, applicant's mark is likely to
cause confusion or mistake or to deceive.
Applicant appealed the final refusal and briefs were
filed. We affirm the refusal to register.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth 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 Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis,
however, two key, although not exclusive, 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).

3 Registration No. 1304671 issued November 13, 1984; renewed (for
10 years) in 2004.
Serial No. 77109062
3
We first consider the du Pont factors regarding the
goods, trade channels and classes of purchasers. In an ex
parte appeal, likelihood of confusion is determined on the
basis of the goods as they are identified in the
application and the cited registration. In re Elbaum, 211
USPQ 639, 640 (TTAB 1981); In re William Hodges & Co.,
Inc., 190 USPQ 47, 48 (TTAB 1976). See also Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d
1001, 1004 (Fed. Cir. 2002). Applicant’s and registrant’s
goods in International Class 31 are legally identical
inasmuch as applicant’s “mixed animal feed” is broad enough
to encompass registrant’s “livestock feeds.” In other
words, applicant’s feed may be used for livestock.
The factor involving the similarity of the goods
therefore weighs strongly in favor of finding a likelihood
of confusion.
Because the goods in the application encompass those
in the cited registration, i.e., they both may be used as
feed for livestock, we must presume that the channels of
trade and classes of purchasers at least in part are the
same. 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
Serial No. 77109062
4
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”). Even if the goods were not identical, e.g.,
if applicant’s feed was for animals other than livestock,
the common trade channels for these goods will still be the
same, such as farm supply outlets. Likewise, the classes
of purchasers for both livestock feeds and mixed animal
feed will also be largely the same. Thus, the du Pont
factors involving trade channels and classes of purchasers
also favor a finding of likelihood of confusion.
This brings us to the similarity or dissimilarity of
the marks. We keep in mind that when marks would appear on
identical goods, as they do here, the degree of similarity
necessary to support a conclusion of likely confusion
declines with respect to that class of goods (in this case,
International Class 31). Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992). Our focus is on whether the marks are
similar in sound, appearance, meaning, and commercial
impression. Palm Bay Imports Inc. v. Veuve Clicquot
Serial No. 77109062
5
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005). In articulating reasons for
reaching a conclusion on the issue of likelihood of
confusion, there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a
particular feature of a mark, provided the ultimate
conclusion rests on a consideration of the marks in their
entireties. In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). For example, merely
descriptive matter that is disclaimed may be accorded
subordinate status relative to the more distinctive
portions of a mark. In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997).
In the present case, applicant has disclaimed the
words ORGANIC and FEEDS and we conclude that these terms
are, respectively, highly descriptive and generic for
animal feed. Accordingly, we have little trouble
concluding that the dominant feature of applicant’s mark is
the term HARVEST, and note that it is identical in sound
and appearance to registrant’s mark. As the examining
attorney argued, and we agree with her, the terms “organic”
and “feeds” actually serve to “reinforce the similar
commercial impressions shared by the applicant’s and
registrant’s marks. When shopping for identical goods, as
Serial No. 77109062
6
is the case here, a consumer faced with the prospect of
choosing HARVEST or ORGANIC HARVEST FEEDS would likely
believe that the latter merely represents the organic line
of the HARVEST line of feed products.” Examining
Attorney’s Brief, (unnumbered) pp. 5-6.
Considering the marks in their entireties, as we must,
we conclude that they are substantially similar.
Accordingly, we resolve this du Pont factor in favor of
finding a likelihood of confusion.
Applicant’s principal argument throughout the appeal
is that the term HARVEST is so weak that it should be
accorded less protection. Applicant suggests that HARVEST
is so weak that the addition of the terms ORGANIC and FEEDS
in applicant’s mark suffices for purposes of distinguishing
its mark from Registrant’s HARVEST mark. In support,
applicant submitted a list of 85 third-party registrations
for marks comprising, in whole or in part, the term HARVEST
for goods in International Class 31.4 Applicant also

4 The examining attorney has objected to applicant’s reliance on
the list of registrations because soft copies thereof were not
submitted. Specifically, she argues that applicant did not
properly make these registrations of record because it merely
listed the registrations and did not attach soft copies or USPTO
electronic database printouts for said registrations. Generally,
to make a third-party registration of record, a copy of the
registration taken from either the paper or electronic records of
the USPTO should be submitted. See TBMP § 1208.02 (2d ed. rev.
2004) and cases cited therein. However, if an applicant includes
a listing of registrations in response to an Office action, and
Serial No. 77109062
7
submitted a dictionary definition for “Harvest,” and relies
on the defined meaning for the term as “a mature crop (as
of grain or fruit).”5
Applicant's evidence of third-party registrations is
entitled to limited probative value. The listed
registrations are not evidence of use of the marks shown
therein. Thus, the list is not proof that consumers are
familiar with the marks so as to be accustomed to the
existence of the same or similar marks in the marketplace.
See Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004,
177 USPQ 462 (CCPA 1973); and Richardson-Vicks, Inc. v.
Franklin Mint Corp., 216 USPQ 989 (TTAB 1982).
Nevertheless, we note that many, if not most, of the
registrations cover food items for human consumption and a
few involve food for animals, such as dogs and birds. The

the examining attorney does not advise applicant that the listing
is insufficient to make the registrations of record at a point
when applicant can correct the error, the examining attorney will
be deemed to have stipulated the registrations into the record.
Id. Here, applicant attached the list of registrations with its
request for reconsideration (filed on September 7, 2007 over five
months before the appeal was filed). The examining attorney
issued her denial of the request for reconsideration
approximately two weeks later; however, she did not inform the
applicant of the inadmissibility of the list of registrations.
Thus, had the examining attorney informed applicant of the
deficiency, there was ample time for applicant to correct the
error by submitting copies of the registrations, prior to filing
the notice of appeal. In view thereof, the Board deems that the
examining attorney has waived the objection and the list of
third-party registrations are considered part of the record.
5 Merriam-Webster Online Dictionary; printout attached to
applicant’s request for reconsideration.
Serial No. 77109062
8
cited registered mark is also included in these
registrations. Ultimately, we conclude that these third-
party registrations, coupled with the dictionary definition
of the term HARVEST, demonstrate that HARVEST is suggestive
of food products, albeit mostly for human consumption.
Even though we find that HARVEST is suggestive and, as
such, may be entitled to a narrower scope of protection,
the scope is still broad enough to prevent the registration
of a highly similar mark for identical goods. See King
Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400,
182 USPQ 108, 109 (CCPA 1974) (likelihood of confusion is
to be avoided as much between weak marks as between strong
marks); see also, In re Farah Manufacturing Co., Inc., 435
F.2d 594, 168 USPQ 277, 278 (CCPA 1971). We do not find
HARVEST to be so highly suggestive of livestock feeds that
its scope of protection is so narrow as to permit applicant
to register the mark ORGANIC HARVEST FEEDS for identical
products. The cited mark is on the Principal Register,
without any claim of acquired distinctiveness; we must
accord the cited registration the presumption of validity
provided for in Trademark Act Section 7. Certainly, any
argument that the registered mark is descriptive or generic
and thus not subject to any protection is an attack on the
validity of a registration which is not permitted in an ex
Serial No. 77109062
9
parte proceeding. In re Dixie Restaurants, Inc., 41 USPQ2d
at 1534.
Accordingly, when we consider the record and all of
the relevant likelihood of confusion factors, we conclude
that potential purchasers of identical goods, i.e., animal
feeds, who encounter the registered mark, HARVEST, and
applicant’s mark, ORGANIC HARVEST FEEDS, used on those very
same goods, are likely to mistakenly believe that the
sources of these goods are the same. As a result, there is
a likelihood of confusion.
DECISION: The refusal to register the mark under
Section 2(d) of the Trademark Act in view of Registration
No. 1304671 is affirmed.