Miller Chemical & Fertilizer Corporation

Trademark Trial and Appeal Board

Jul 27, 2006

No. 76470083 (T.T.A.B. Jul. 27, 2006)

Mailed: July 27, 2006
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Miller Chemical & Fertilizer Corporation
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Serial No. 76470083
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Stanley B. Kita of Howson and Howson for Miller Chemical &
Fertilizer Corporation.

Travis D. Wheatley, Trademark Examining Attorney, Law
Office 115 (Tomas V. Vlcek, Managing Attorney).
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Before Quinn, Hairston and Walsh, Administrative Trademark
Judges.

Opinion by Hairston, Administrative Trademark Judge:

Miller Chemical & Fertilizer Corporation has filed an
application to register the mark SUSTAIN for goods
ultimately identified as “spreader-sticker adjuvants for
use in the field of commercial agriculture and horticulture
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 76470083
2
in enhancing contact and adhesion of pesticides to plant
surfaces.”1
The trademark examining attorney2 has finally 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 the identified goods, so resembles the mark SUSTANE for
“natural organic fertilizer,”3 as to be likely to cause
confusion or mistake or to deceive.
Applicant has appealed. Briefs have been filed, but
an oral hearing was not requested.
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. duPont 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

1 Application Serial No. 76470083, filed November 26, 2002,
asserting first use and first use in commerce as of October 29,
2002.
2 The current examining attorney was not the original examining
attorney in this case.
3 Registration No. 1,516,929, issued December 20, 1988; Section 8
affidavit accepted, Section 15 affidavit filed.
Ser No. 76470083
3
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).
It is the examining attorney’s position that the marks
are phonetically identical and that similarity in this
element alone is sufficient to find a likelihood of
confusion.
Applicant, on the other hand, argues that the marks
are not similar because SUSTAIN is a recognized word
whereas SUSTANE is a coined term with no recognizable
meaning.
With respect to the marks, we must determine whether
applicant’s mark and registrant’s mark, when compared in
their entireties, are similar or dissimilar in terms of
sound, appearance, connotation and commercial impression.
Although the marks must be considered in their entireties,
it is well-settled that one feature of a mark may be more
significant than another, and it is not improper to give
more weight to this dominant feature in determining the
commercial impression created by the mark. See In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir.
1985). Furthermore, the test is not whether the marks can
be distinguished when subjected to a side-by-side
Ser No. 76470083
4
comparison, but rather whether the marks are sufficiently
similar in terms of their commercial impression that
confusion as to the source of the goods and/or services
offered under the respective marks is likely to result.
Considering then the marks SUSTAIN and SUSTANE, they
are obviously identical in terms of sound. Further, they
appear to have the same connotation as applied to the
respective goods, namely, “to keep in existence; maintain;
prolong.”4 However, because SUSTAIN is a recognized word
and SUSTANE is a coined term, the marks look different and
have different commercial impressions. In view of the
differences in the appearance and commercial impressions of
the marks, we find that the marks SUSTAIN and SUSTANE are
more dissimilar than similar. We acknowledge the examining
attorney’s point that in certain circumstances similarity
in pronunciation alone is a sufficient basis to find
likelihood of confusion. But in this case, similarity in
pronunciation alone is not sufficient.
Turning next to the goods, it is the examining
attorney’s position that the goods are closely related.

4 We base this finding with respect to connotation on the
definition of the word “sustain” in The American Heritage
Dictionary of the English Language (New College Edition 1976).
The Board may take judicial notice of dictionary definitions.
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co.,
Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 D.2d 1372, 217 USPQ
505 (Fed. Cir. 1983).
Ser No. 76470083
5
Specifically, the examining attorney maintains that
adjuvants for pesticides, on the one hand, and fertilizers,
on the other hand, are both used to promote the growth of
agricultural crops and would be encountered in the same
channels of trade by the same purchasers. In support of
his position that the goods are closely related, the
examining attorney submitted copies of third-party
registrations for marks that cover adjuvants for
pesticides, on the one hand, and fertilizers, on the other
hand. In addition, the examining attorney submitted copies
of third-party registrations for marks that cover adjuvants
for use with both pesticides and fertilizers and Internet
printouts which describe adjuvants for use with both
pesticides and fertilizers.
Applicant argues that the respective goods are very
different in nature and are not related. Applicant
maintains that its adjuvants for pesticides are chemicals,
whereas registrant’s natural organic fertilizer is made
from natural sources; and that consumers would not expect
adjuvants for pesticides to emanate from a producer of
natural organic fertilizer. Applicant submitted the
declaration of its president, Charles H. Svec, who states
that he has been involved in the commercial agriculture,
chemical and fertilizer business for many years. According
Ser No. 76470083
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to Mr. Svec, natural organic fertilizers generally
originate from sewage sludge processors or animal waste
product processors and not from chemical manufacturers; and
adjuvants for pesticides are liquids, and are generally not
mixed with natural organic fertilizers, which are
customarily sold in particulate form. Further, Mr. Svec
states that applicant’s adjuvants for pesticides are used
by commercial growers and farmers who are sophisticated
purchasers, and that these growers and farmers exercise
care to ensure the proper application of agricultural
chemicals and products to their soil and plants.
Insofar as the evidence submitted by the examining
attorney is concerned, applicant argues that there is no
indication that the fertilizers or adjuvants for use with
both pesticides and fertilizers listed in the third-party
registrations or described in the Internet printouts are
natural organic products. Thus, applicant argues that the
examining attorney’s evidence does not establish that
companies market adjuvants for pesticides and natural
organic fertilizers under a single mark.
It is a general rule that goods or services need not
be identical or even competitive in order to support a
finding of likelihood of confusion. Rather, it is enough
that goods or services are related in some manner or that
Ser No. 76470083
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some circumstances surrounding their marketing are such
that they would be likely to be seen by the same persons
under circumstances which could give rise, because of the
marks used or intended to be used therewith, to a mistaken
belief that they originate from or are in some way
associated with the same producer or that there is an
association between the producers of each parties’ goods or
services. In re Melville Corp., 18 USPQ2d 1386 (TTAB
1991), and cases cited therein.
In this case, the mere fact that applicant’s and
registrant’s goods may both be used to promote the growth
of agricultural products is an insufficient basis upon
which to find that the goods are related for purposes of
our likelihood of confusion analysis. Applicant’s
adjuvants for pesticides are chemicals which differ in
nature from applicant’s natural organic fertilizer, which
is not likely produced with chemicals.5 Additionally,
applicant’s position that the respective goods generally
would not be used together is supported by the Svec
declaration. Moreover, it is common knowledge that the
philosophy behind organic products is that such products

5 The word “organic” is defined as, inter alia: “Of, pertaining
to, or derived from living organisms” and “Free from chemical
injections or additives.” The American Heritage Dictionary of
the English Language (New College Edition 1976).
Ser No. 76470083
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generally are chemical-free. Thus, it appears to us that
it is highly unlikely that a farmer or grower would
purchase and/or use applicant’s adjuvants for pesticides
and registrant’s natural organic fertilizer together. In
short, notwithstanding the evidence submitted by the
examining attorney, we find that the specific goods
involved herein are not sufficiently related to warrant a
finding of likelihood of confusion.6
Insofar as trade channels and purchasers are
concerned, because registrant’s identification of goods
contains no limitations, we must presume that registrant’s
natural organic fertilizer is marketed in all normal
channels of trade for such goods to all normal classes of
purchasers for such goods. However, we note that
applicant’s goods are identified as “for use in the field
of commercial agriculture and horticulture.” In view of
this limitation with respect to the area of use of
applicant’s adjuvants for pesticides, this is not the type
of product that would be marketed to the general public
through lawn and garden stores. Thus, the only overlap as

6 We note that the adjuvants for use with both pesticides and
fertilizers described in the Internet printouts submitted by the
examining attorney are chemical products. Thus, as applicant
argues, these printouts do not prove that companies market
adjuvants for pesticides and natural organic fertilizers under a
single mark.
Ser No. 76470083
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to applicant’s and registrant’s goods in terms of trade
channels is suppliers of commercial agricultural and
horticultural products and in terms of purchasers is
commercial growers and farmers. Commercial growers and
farmers would be expected to exercise a high degree of care
in the selection of products for use on their soil and
plants and this would further obviate any likelihood of
confusion.
In sum, given the differences in the commercial
impressions of the marks, the differences in the specific
nature of the respective goods, and the sophistication of
the purchasers, contemporaneous use of the involved marks
is not likely to cause confusion.
Decision: The refusal to register under Section 2(d)
of the Act is reversed.