Nutro Products, Inc.

Trademark Trial and Appeal Board

Feb 14, 2003

No. 76017060 (T.T.A.B. Feb. 14, 2003)

Mailed:
Feb. 14, 2003
Paper No. 9
Bottorff
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Nutro Products, Inc.
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Serial No. 76/017,060
_______
Donald D. Mon for Nutro Products, Inc.
Dawn J. Feldman, Trademark Examining Attorney, Law Office
111 (Kevin Peska, Acting Managing Attorney).
_______
Before Hanak, Quinn and Bottorff, Administrative Trademark
Judges.
Opinion by Bottorff, Administrative Trademark Judge:
Applicant seeks registration on the Principal Register
of the mark PUPPY DRUMSTICKS (in typed form; PUPPY
disclaimed) for “pet food, namely, snacks for dogs.”1
1 Serial No. 76/017,060, filed April 3, 2000. The application is
based on use in commerce under Trademark Act Section 1(a), 15
U.S.C. §1051(a), and November 1996 is alleged in the application
as the date of first use anywhere and the date of first use in
commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76/017,060
2
The Trademark Examining Attorney has issued a final
refusal to register under Trademark Act Section 2(d), 15
U.S.C. §1052(d), on the ground that applicant’s mark, as
applied to applicant’s goods, so resembles the mark
DRUMSTIX WITH REAL CHICKEN & TURKEY (in typed form; WITH
REAL CHICKEN & TURKEY disclaimed), previously registered
for “cat food,”2 as to be likely to cause confusion, to
cause mistake, or to deceive.3
2 Reg. No. 2,209,127, issued December 8, 1998.
3The Trademark Examining Attorney initially also refused
registration under Trademark Act Section 2(e)(1) on the ground
that applicant’s mark is merely descriptive of the goods,
inasmuch as the goods are for puppies and the specimen package
shows that the snacks are shaped like chicken drumsticks.
Applicant, in its response to the first Office action, traversed
the mere descriptiveness refusal by arguing that its dog snacks
do not look like actual fowl drumsticks because they have
“grooves and pits” which actual fowl drumsticks do not have, that
the term DRUMSTICKS therefore is only suggestive of the goods,
not merely descriptive, and that the mark as a whole is a
humorous, coined term because puppies do not have drumsticks.
The Trademark Examining Attorney withdrew the Section 2(e)(1)
refusal in her final Office action.
For purposes of the Section 2(d) refusal on appeal, we note
that although it appears from applicant’s package specimen that
applicant’s actual dog snacks currently are shaped like chicken
or turkey drumsticks, the mark applicant seeks to register is in
typed form and includes no design element depicting the shape of
the goods. We do not know if registrant’s cat food is configured
in the shape of chicken or turkey drumsticks (although it is not
unreasonable to assume that it is), but whether it is or not so
configured, the registered mark is in typed form and includes no
depiction of the shape of the goods.
Ser. No. 76/017,060
3
Applicant has appealed. Applicant and the Trademark
Examining Attorney filed main briefs, but applicant did not
file a reply brief and has not requested an oral hearing.
In support of her Section 2(d) refusal, the Trademark
Examining Attorney argues that applicant’s mark is similar
to the cited registered mark because the dominant feature
of both marks is the term DRUMSTICKS or its phonetic
equivalent DRUMSTIX. She notes that the remainders of each
mark (PUPPY in applicant’s mark and WITH REAL CHICKEN &
TURKEY in registrant’s mark) are descriptive, disclaimed
matter, and that purchasers therefore will notice and
recall DRUMSTICKS or DRUMSTIX as the dominant source-
indicating feature in each mark. The Trademark Examining
Attorney further argues that applicant’s goods and
registrant’s goods are closely related in that they both
are pet foods which are marketed to the same purchasers
(including ordinary consumers) in the same trade channels
(including supermarkets). She has submitted evidence in
the form of seventeen third-party registrations of marks
which include in their respective identifications of goods
both dog food and and cat food (seven of which (including
one owned by applicant) more specifically include dog
treats, dog snacks or dog biscuits, as well as cat food),
Ser. No. 76/017,060
4
and argues based thereon that cat food is within the normal
area of expansion for makers of dog snacks, and vice versa.
In opposition to the Section 2(d) refusal, applicant
argues that the marks are dissimilar rather than similar.
Applicant concedes that both marks share what applicant
calls the “strong words” DRUMSTICKS or DRUMSTIX, but argues
that the marks in their entireties nonetheless create
different commercial impressions. Applicant points out
that the remainders of the respective marks i.e., PUPPY and
WITH REAL CHICKEN & TURKEY, do not look or sound alike.
Applicant contends that registrant’s DRUMSTIX WITH REAL
CHICKEN & TURKEY mark is a long and detailed description of
the contents of registrant’s product, and that the mark
“alludes to fowl (chicken and turkey) which indeed do have
drumsticks, and tends to associate the product with genuine
fowl drumsticks.” By contrast, applicant argues,
applicant’s PUPPY DRUMSTICKS mark is a short, coined,
humorous mark which alludes to “something that has no
possible relationship to anything – puppies simply do not
have drumsticks.” Applicant has not presented any argument
or evidence with respect to the similarity or dissimilarity
between applicant’s and registrant’s respective goods,
trade channels and classes of purchasers.
Ser. No. 76/017,060
5
Our likelihood of confusion determination under
Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the
likelihood of confusion factors set forth in In re E.I. du
Pont de Nemours and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). In considering the evidence of record on these
factors, we keep in mind that “[t]he 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.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
First, we find that applicant’s goods as identified in
the application, i.e., “pet food, snacks for dogs,” are
similar and closely related to the “cat food” identified in
the cited registration. Both applicant’s and registrant’s
goods are pet food. The Trademark Examining Attorney’s
third-party registration evidence suggests that these
respective types of goods may emanate from a single source
under a single mark. See In re Albert Trostel & Sons Co.,
29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck
Mustard Co., Inc., 6 USPQ2d 1467 (TTAB 1988). Applicant
has presented no evidence or argument to the contrary.
Ser. No. 76/017,060
6
Neither the registration nor the application contains
any limitations or restrictions as to trade channels or
classes of purchasers for the respective goods, and we
accordingly presume that the goods are sold in all normal
trade channels for such goods and to all normal classes of
purchasers of such goods. See In re Elbaum, 211 USPQ 639
(TTAB 1981). Given that both applicant’s and registrant’s
goods are pet food, we find that the trade channels and
classes of customers for the respective goods are the same.
Again, applicant does not contend otherwise.
We also believe that cat food and dog treats generally
are relatively inexpensive products which may be purchased
on impulse and without a great degree of care, a fact which
further supports a finding of likelihood of confusion.
Finally, we turn to a determination of whether
applicant’s mark and the cited registered mark, when
compared in their entireties in terms of appearance, sound
and connotation, are similar or dissimilar in their overall
commercial impressions. 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
that confusion as to the source of the goods offered under
the respective marks is likely to result. The focus is on
Ser. No. 76/017,060
7
the recollection of the average purchaser, who normally
retains a general rather an a specific impression of
trademarks. See Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975). Furthermore, although the marks at
issue 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).
Finally, where, as in the present case, the marks would
appear on highly similar goods, the degree of similarity
between the marks which is necessary to support a finding
of likely confusion declines. Century 21 Real Estate Corp.
v. Century Life of America, 970 F.2d 874, 23 USPQ 1698
(Fed. Cir. 1992).
Applying these principles to the present case, we find
that applicant’s and registrant’s marks are similar rather
than dissimilar, and that confusion is likely to result
from use of these marks on the highly similar goods at
issue here. We find that the dominant feature in the
commercial impression created by each mark is the word
DRUMSTICKS or its phonetic and legal equivalent DRUMSTIX,
and that this feature accordingly is entitled to relatively
Ser. No. 76/017,060
8
greater weight in our comparison of the marks. Purchasers,
with their fallible memories, are likely to rely on the
DRUMSTICKS/DRUMSTIX feature as the source indicator in each
of the marks. The remaining merely descriptive portions of
each mark, i.e., PUPPY in applicant’s mark and WITH CHICKEN
& TURKEY in registrant’s mark, are likely to be perceived
and recalled only as a means of distinguishing between the
products themselves in terms of flavor or intended user,
and not as a means of distinguishing between the sources of
the products. That is, purchasers will assume that
DRUMSTIX WITH REAL CHICKEN & TURKEY, on the one hand, and
PUPPY DRUMSTICKS, on the other, are merely different
varieties of DRUMSTICKS/DRUMSTIX brand pet food, one
variety being specifically for puppies and the other being
specifically a cat food with chicken and turkey flavoring.
In short, any dissimilarities between the marks (in
terms of appearance, sound and connotation) which might
result from differences between the merely descriptive
portions of the respective marks are greatly outweighed, in
our comparison of the marks’ overall commercial
impressions, by the fact that the dominant feature in both
marks is what applicant concedes is the “strong” word
DRUMSTICKS or DRUMSTIX. The distinctions in connotation
for which applicant argues (see supra at page 4) are, in
Ser. No. 76/017,060
9
our opinion, too strained and subtle to be noticed or
recalled by purchasers encountering these closely related
and relatively inexpensive pet food items in the
supermarket or pet store. Any doubt on that score must be
resolved against applicant. See In re Hyper Shoppes (Ohio)
Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988); In re
Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223
USPQ 1289 (Fed. Cir. 1984).
Decision: The refusal to register is affirmed.
Hanak, Administrative Trademark Judge, dissenting:
I respectfully dissent. There is no dispute that “the
basic principle in determining confusion between marks is
that marks must be compared in their entireties and must be
considered in connection with a particular goods or
services for which they are used.” In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749, 750 (Fed. Cir. 1985).
Considering first the goods, while I acknowledge that
they are related, I do not acknowledge that, based upon
this record, they are “closely related” as contended by the
majority. In this regard, the Examining Attorney has made
of record only seven third-party registrations which cover
both dog snacks (applicant’s goods) and cat food
(registrant’s goods). More importantly, third-party
Ser. No. 76/017,060
10
registrations by themselves are of virtually no probative
value in showing that two types of goods are related merely
because they are listed in the same third-party
registration. The majority cites but does not quote from
In re Mucky Duck Mustard Co., 6 USPQ2d 1467 (TTAB 1988).
There the Board stated that third-party registrations
“although not evidence that the marks shown therein are in
use on a commercial scale or that the public is familiar
with them, may nevertheless have some probative value to
the extent that they may serve to suggest that the goods or
services are of a type which may emanate from a single
source.” Mucky Duck, 6 USPQ2d at 1470 n.6 (emphasis added).
As the underlined language from Mucky Duck indicates, this
Board had been very reluctant to accord even the most
minimal evidentiary value to third-party registrations for
the purposes of showing that two types of goods are
related. This reluctance is quite understandable in that
to rely upon third-party registrations to show that two
types of goods are related in the minds of the consuming
public runs contrary to the teachings of one of the
predecessor courts to our primary reviewing Court. That
court stated that “in the absence of any evidence showing
the extent of use of any of such marks or whether any of
them are now in use, they [the third-party registrations]
Ser. No. 76/017,060
11
provide no basis for saying that the marks so registered
have had, or may have, any effect at all on the public mind
so as to have a bearing on likelihood of confusion.” Smith
Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ
462, 463 (CCPA 1973) (original emphasis).
Turning to a consideration of the marks, I note at the
outset that marks are compared in terms of visual
appearance, pronunciation and meaning. 3 J. McCarthy,
McCarthy on Trademarks and Unfair Competition, Section 23:
21 at page 23-47 (4th ed. 2002). The only words common to
applicant’s two word mark and registrant’s six word mark
are DRUMSTICKS and its near phonetic equivalent DRUMSTIX.
Thus, in terms of visual appearance and pronunciation,
applicant’s two word mark is clearly different from
registrant’s six word mark.
I agree with the majority that DRUMSTICKS is the most
distinctive feature of applicant’s mark and that its near
phonetic equivalent DRUMSTIX is the most distinctive
feature of registrant’s mark. However, I find that the
word DRUMSTICKS as used in applicant’s mark has a decidedly
different meaning than the word DRUMSTIX as used in
registrant’s mark. The work “drumstick” is defined as “the
meaty leg of a chicken, turkey, or other fowl.” Random
House Webster’s Dictionary (2002). Registrant’s mark
Ser. No. 76/017,060
12
includes the words WITH REAL CHICKEN & TURKEY. This would
cause consumers to view registrant’s mark in its entirety
as indicating that registrant’s cat food consists of real
chicken and turkey meat which has been taken from actual
chicken and turkey drumsticks.
In stark contrast, there are no such things as PUPPY
DRUMSTICKS. A puppy is simply not a chicken, turkey or
other fowl. When consumers see the mark PUPPY DRUMSTICKS
on dog snacks, they will readily understand that the snacks
do not consist of actual drumsticks, but rather are simply
snacks in the shape of drumsticks. Indeed, applicant’s dog
snacks are in the shape of drumsticks, and applicant’s
boxes for its PUPPY DRUMSTICKS dog snacks feature numerous
pictures of its snacks (dog biscuits) in the shape of
drumsticks.
Moreover, applicant’s PUPPY DRUMSTICKS dog snacks
could not consist of real drumsticks because chicken,
turkey and other fowl bones, including drumsticks, are
clear hazards for dogs and puppies in that they can
splinter and do serious damage to the stomach and
intestines. See American Kennel Club, The Complete Dog
Book pp. 631-632 (18th ed. 1992).
In sum, given the fact that dog snacks and cat food
are simply related and not closely related goods, and the
Ser. No. 76/017,060
13
fact that applicant’s mark and registrant’s mark differ
decidedly in terms of visual appearance, pronunciation and
especially meaning, I would find that there exists no
likelihood of confusion.