Northland Organic Foods Corp.

Trademark Trial and Appeal Board

Sep 29, 2008

No. 77001674 (T.T.A.B. Sep. 29, 2008)

Mailed: September 29, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Northland Organic Foods Corp.
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Serial No. 77001674
_______

Jana L. France of Fish & Richardson, PC for Northland
Organic Foods Corp.

Sonya B. Stephens, Trademark Examining Attorney, Law Office
109 (Dan Vavonese, Managing Attorney).
_______

Before Bucher, Drost and Kuhlke, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Northland Organic Foods Corp. seeks registration on
the Principal Register of the mark shown below for goods
and services identified as “nutritional supplements,
namely, lecithin for use as a dietary supplement, soy
proteins for use as a nutritional ingredient in various
powdered and ready to drink beverages; soy protein powder
for use as a nutritional ingredient in powdered nutritional
supplement drink mixes,” in International Class 5; “books,
magazines, newsletters and circulars, all on the subject of
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 77001674
2
information relating to environmentally sound and
sustainable agricultural practices and the production of
organic and non-GMO crops; printed recipes distributed
individually; and art prints” in International Class 16;
“soybean oils; soy powder used as food additives and
ingredients in other food products; soy protein for use as
a food additive; processed soybeans used as a vegetable
protein and meat substitute” in International Class 29;
“educational information relating to agricultural research
namely, research relating to environmentally sound and
sustainable agricultural practices and the production of
organic and non-GMO crops” in International Class 42; and
“educational information relating to agricultural advice
namely, advice relating to environmentally sound and
sustainable agricultural practices and the production of
organic and non-GMO crops” in International Class 44.1 The
application includes a disclaimer for the depiction of the
soybean.

1 Application Serial No. 77001674, filed September 18, 2006,
alleging a bona fide intention to use the mark in commerce under
Section 1(b) of the Trademark Act, 15 U.S.C. §1051(b).

Serial No. 77001674
3
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 used with its identified goods and
services in International Classes 16, 42 and 44, so
resembles the following registered mark, as to be likely to
cause confusion, mistake or deception:2

for “educational services, namely, conducting classes,
seminars and workshops in the field of planting, growing
and harvesting crops,” in International Class 41,
Registration No. 3047968, issued January 24, 2006. The
registration includes the following disclaimer: “No claim
is made to the exclusive right to use “seed”, “plate”, or
“a community partnership in caring” apart from the mark as
shown.” In addition, the registration includes the
following description of the mark: “The mark consists of
the words “Seed To Plate”, “A Community Partnership in

2 The refusal to register applied to the goods in International
Classes 5 and 29 based on requirements for more definite
identifications has been withdrawn. In view thereof, regardless
of the outcome regarding the specified goods and services at
issue in this appeal, a notice of allowance may be issued for
applicant’s mark for at least the remaining goods in the
application. Trademark Rule 2.65(a).
Serial No. 77001674
4
Sharing” with a plate, a plant and two people tending a
garden.”
When the refusals were made final, applicant appealed
and filed a request for reconsideration. The examining
attorney denied the request and the appeal was resumed and
fully briefed. 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,
two key considerations are the similarities between the
marks and the similarities between the goods and services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
We turn first to a consideration of whether the
respective marks are similar or dissimilar when compared in
their entireties in terms of appearance, sound, connotation
and commercial impression. The analysis is not whether the
marks can be distinguished when compared side-by-side.
Rather, we must determine whether the marks are
sufficiently similar that there is a likelihood of
Serial No. 77001674
5
confusion as to source and, in making this determination,
we must consider the recollection of the average purchaser
who normally retains a general, rather than specific,
impression of trademarks. Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106, 108 (TTAB 1975).
For the reasons set forth below, we find that the
similarities in the marks outweigh the dissimilarities. In
re Shell Oil Company, 992 F.2d 1204, 26 USPQ2d 1687 (Fed.
Cir. 1993). In traversing the refusal, applicant focuses
on the differences in the design elements and argues that
the literal portion of registrant’s mark is weak and
deserving of a limited scope of protection. While the
design elements are different, the more dominant portion of
registrant’s mark is the phrase SEED TO PLATE. It
dominates over the design because it is the literal portion
of a mark that is more likely to be impressed upon a
purchaser’s memory and to be used in calling for the goods
or services. In re Dakin’s Miniatures, Inc., 59 USPQ2d
1593, 1596 (TTAB 1999); In re Appetito Provisions Co., 3
USPQ2d 1553, 1554 (TTAB 1987). In addition, the wording
SEED TO PLATE appears in larger more prominent lettering on
the top of the design than the wording A COMMUNITY
PARTNERSHIP IN CARING in non-boldfaced lettering at the
bottom of the design. In re Nat’l Data Corp., 753 F.2d
Serial No. 77001674
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1056, 224 USPQ 749 (Fed. Cir. 1985). Similarly, the
wording SEED TO PLATE is the dominant portion of
applicant’s mark. In re Appetito, supra. Thus, the
dominant elements in the respective marks are identical in
sound, meaning and commercial impression. The additional
wording in registrant’s mark does not detract from these
similarities and the differences in appearance due to the
design elements does not sufficiently distinguish the marks
due to the identity of the dominant elements.
Applicant’s argument and evidence that registrant’s
mark is weak focuses on the individual terms SEED and PLATE
but not the phrase SEED TO PLATE. As the examining
attorney aptly noted, the fact that “the registrant has
disclaimed the wording ‘seed,’ ‘plate,’ and ‘a community
partnership in caring’ in its mark ... does not remove the
disclaimed portion from the mark for the purposes of this
analysis.” Br. p. 7 citing In re Nat’l Data Corp., supra.
As to applicant’s evidence consisting of third-party
registrations that include the words SEED or PLATE, the
examining attorney correctly noted that it “is unpersuasive
because it fails to show that the collective wording at
issue in this case, i.e., SEED TO PLATE, is weak in the
relevant field.” Br. p. 9. We add that even weak marks
are entitled to protection for closely related goods or
Serial No. 77001674
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services. In re Clorox Co., 578 F.2d 305, 18 USPQ 337
(CCPA 1978).
In view of the above, the du Pont factor of the
similarity of the marks weighs in favor of a likelihood of
confusion.
We turn next to a consideration of the goods and
services identified in the application and the cited
registration. It is well settled that goods and services
need not be similar or competitive in nature to support a
holding of likelihood of confusion. The question is not
whether purchasers can differentiate the goods and services
themselves, but rather whether purchasers are likely to
confuse the source of the goods and services. See Helene
Curtis Industries Inc. v. Suave Shoe Corp., 13 USPQ2d 1618
(TTAB 1989). Further, we must consider the cited
registrant’s services as they are described in the
registration and we cannot read limitations into those
services. See Hewlett-Packard Co. v. Packard Press Inc.,
281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom
Systems Inc. v. Houston Computer Services Inc., 918 F.2d
937, 16 USPQ2d 1783 (Fed. Cir. 1987). If the cited
registration describes services broadly, and there is no
limitation as to the nature, type, channels of trade or
class of purchasers, it is presumed that the registration
Serial No. 77001674
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encompasses all services of the type described, that they
move in all channels of trade normal for these services,
and that they are available to all classes of purchasers
for the described services. See In re Linkvest S.A., 24
USPQ2d 1716 (TTAB 1992).
In support of her contention that the goods and
services are related, the examining attorney submitted
several third-party use-based registrations to show that
numerous entities have adopted a single mark for books,
magazines, educational services, and information services.3
See, e.g., Reg. No. 2448821 (information booklets,
brochures, educational services, namely, seminars,
workshops and classes, and providing educational
information offered by way of online electronic
communication networks); Reg. No. 2863141 (books,
magazines, educational services, namely, conducting
classes, seminars, conferences and workshops, educational
information services); Reg. No. 2634847 (books, magazines,
education and entertainment services, namely religious
radio and television programs, conducting seminars and
providing educational information in the field of religion
via a global computer network); Reg. No. 3033184 (magazines

3 We have not considered the third-party registrations based on
Section 44 of the Trademark Act.
Serial No. 77001674
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and posters, providing educational information in the field
of history); Reg. No. 2846348 (newsletters and pamphlets,
educational services, namely conducting seminars,
workshops, and classes in the field of health and
medicine); Reg. No. 2690981 (providing educational
information in the field of astronomy featuring NASA
resources and data that allow students to make scientific
inquiries about stars and stellar evolution, and books and
pamphlets in the field of astronomy); Reg. No. 3102429
(financial research services, providing financial
information to others, providing educational information in
the filed of finance, books, newsletters pertaining to
investing and finance, and educational services, namely,
conducting classes, seminars, conferences, workshops); and
Reg. No. 3183817 (books, brochures, leaflets, educational
services, namely, educational instruction, training
services, research service, and the provision of online
tutorial assistance and educational information in the
field of mathematics education.) We find these
registrations persuasive evidence as to the factor of the
relatedness of the goods and services. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
As to channels of trade and class of purchasers, there
are no specific limitations in either the registration or
Serial No. 77001674
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the subject application, thus, we must presume that
applicant’s and registrant’s goods and services will be
offered in some of the same channels of trade and will be
bought by some of the same classes of purchasers. See
Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490,
1 USPQ2d 1813 (Fed. Cir. 1987).
Applicant argues that its “information services and
the registrant’s educational courses and seminars” would
not be confused because applicant distributes its
information services via a global communication network and
“registrant provides educational courses and seminars which
are typically offered in a classroom.” Br. p. 14.
Applicant concludes that “[o]ne would not confuse
Applicant’s information services and the registrant’s
educational courses and seminars because the parties’
respective services travel in different trade channels.”
Id. This argument is not persuasive because there are no
limitations as to trade channels in the identification of
goods and services, and educational services, including
classes, are regularly provided via the Internet, thus the
normal course trade for registrant’s services would not
exclude provision of the services via a global
communication network. Moreover, although applicant’s
subject matter may, in fact, differ somewhat, it is
Serial No. 77001674
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encompassed by the field listed in the registration,
namely, “planting, growing and harvesting of crops.”
In view of the above, the du Pont factors of the
relatedness of the goods and services, the channels of
trade, and class of purchasers favor a finding of
likelihood of confusion.
In conclusion, we hold that because the marks are
similar, the goods and services are related, and the
channels of trade and class of customers overlap, confusion
is likely between applicant’s mark and the mark in the
cited registration.
To the extent that we may have any doubt we resolve
that doubt in favor of the registrant. Hewlett-Packard Co.
v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1003
(Fed. Cir. 2002); In re Hyper Shoppes (Ohio), Inc., 837
F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988).
Decision: The refusal to register under Section
2(d) of the Trademark Act is affirmed as to the goods
and services in International Classes 16, 42 and 44,
and the application will proceed to notice of
allowance as to the remaining classes.