OMSInvestments, Inc.v.Central Garden & Pet Company

Trademark Trial and Appeal Board

Jul 10, 2006

No. 91156249 (T.T.A.B. Jul. 10, 2006)

Mailed:
July 10, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

OMS Investments, Inc.

v.

Central Garden & Pet Company
_____

Opposition No. 91156249 to application Serial No. 76300626
filed on August 17, 2001
_____

Cory M. Amron and William H. Oldach III of Vorys, Sater,
Seymour and Pease LLP, for OMS Investments, Inc.

Diane J. Mason of Dorsey & Whitney LLP for Central Garden &
Pet Company.
______

Before Rogers, Zervas and Walsh, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:

Applicant, Central Garden & Pet Company, seeks
registration on the Principal Register of the mark EASYGONE1
(in standard character form) for the following goods:

1 Application Serial No. 76300626, filed August 17, 2001.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Opposition No. 91156249
2
“herbicides and insecticides for agricultural and domestic
use” in International Class 5. The application contains an
allegation of a date of first use and first use in commerce
of December 13, 2000.
OMS Investments, Inc. (“opposer” or “OMS”) filed a
notice of opposition to registration of applicant's mark.
In the notice of opposition, opposer pleaded use of
“numerous trademarks containing the term ‘B-GON’” “since
long prior to Applicant's filing date of August 17, 2001”;
and ownership of the following registrations and marks:
PEST-B-GON, Registration No. 433172, registered
September 30, 1946, for “parasiticides - namely,
insecticides”;2

WEED-B-GON, Registration No. 903317, registered
December 1, 1970, for “herbicides”;3

BRUSH-B-GON, Registration No. 1301169, registered
October 23, 1984 for “[p]esticide - [n]amely
[h]erbicide”;4

GRASS-B-GON (stylized), Registration No. 1995777,
registered August 20, 1996, for “pesticides and
herbicides for home and garden use”;5

BUG-B-GON, Registration No. 2073033, registered
June 24, 1997, for “insecticides for home and
garden use”;6

2 Renewed September 30, 1987.
3 Renewed March 26, 2001.
4 Renewed October 22, 2004.
5 Section 8 and Section 15 affidavits accepted and acknowledged,
September 19, 2001.
6 Section 8 and Section 15 affidavits accepted and acknowledged,
September 10, 2003.
Opposition No. 91156249
3
WEED-B-GON, Registration No. 2088157, registered
August 12, 1997, for “herbicides mixed with
fertilizers for domestic use”;7

BIRD-B-GONE (and design), Registration No.
2562771, registered April 23, 2002, for “pest
repellent devices, namely, a metal architectural
barrier for preventing birds from landing and
perching,” in International Class 6, and “pest
repellent devices, namely, a non-metal
architectural barrier for preventing birds from
landing and perching” in International Class 19;
and

ANT-B-GON (stylized), Registration No. 2646066,
registered November 5, 2002, for “insecticides for
agricultural and domestic use.”

Additionally, opposer asserted the following
registrations and marks - the registrations have since
been cancelled:
WEED-B-GON, Registration No. 889348, for
“aspirator type spray gun devices for chemical
pesticides,” cancelled April 28, 2001;

FLEA-B-GON, Registration No. 1261432, for
“insecticide – [n]amely [f]lea-[k]iller,”
cancelled September 25, 2004;

WEED-B-GON EXTRA GREEN, Registration No. 2074449,
for “herbicide mixed with fertilizer for domestic
use,” cancelled March 27, 2004; and

GRUB-B-GON, Registration No. 2236054, for
“insecticides for residential and agricultural
use,” cancelled January 7, 2006.

Opposer has also alleged that its marks form a family of
B-GON marks which “identify a line of products for
controlling various types of pests both inside the home and
for outdoor use”; and that applicant's mark so resembles

7 Section 8 and Section 15 affidavits accepted and acknowledged,
Opposition No. 91156249
4
opposer's previously used and registered marks as to be
likely to cause confusion, to cause mistake, or to deceive.
Trademark Act Section 2(d), 15 U.S.C. §1052(d).
Additionally, opposer alleges that the “use and registration
of EASYGONE by Applicant will dilute the distinctive value
of Opposer's line of ‘B-GON’ marks and products ….”
Applicant answered the notice of opposition by denying
the salient allegations thereof.
The Record
The record consists of the pleadings; the file of the
involved application; the trial testimony, with related
exhibits, taken by opposer, of (i) Giancarlo Miranda, brand
manager, The Scotts Company; and (ii) John Brex, formerly
President of Excel Marketing and now a consultant for
applicant; the trial testimony, with related exhibits, taken
by applicant of (i) Fred Vogelgesang, President of Excel
Marketing, a division of applicant; (ii) Carl Yeager, a
business manager for applicant; (iii) Richard Wall, owner of
Wall and Associates, a consultant for applicant; and
(iv) Sandra Cogan of Cogan Research Group, who conducted a
survey on applicant's behalf; and, pursuant to applicant's
notices of reliance, excerpts from the discovery deposition
of Mr. Miranda, opposer's responses to certain interrogatory
requests made by applicant, and third-party trademark

September 13, 2003.
Opposition No. 91156249
5
applications and registrations incorporating the formative
“BE-GONE” or “B-GONE.”
The parties have fully briefed the opposition. An oral
hearing was conducted on February 9, 2006.
Factual Findings
Opposer is an affiliate of The Scotts Miracle-Gro
Company, formerly named The Scotts Company. Miranda tr. at
p. 15.8 In 1999, Scotts acquired a line of pesticide and
herbicide products – known as the Ortho line - from its
former owner Monsanto. The following are marks that are a
part of the Ortho line and were acquired from Monsanto;
BRUSH-B-GON, BUG-B-GON, GRASS-B-GON, and WEED-B-GON and an
application for ANT-B-GON. Miranda tr. at p. 8; and Miranda
Exhibit 1.
Opposer's B-GON pesticide and herbicide products are
sold nationwide, in home centers, mass merchandisers,
hardware stores, and nurseries and through independent
distributors. Miranda tr. at p. 20. The B-GON products can
be found at The Home Depot, Lowe’s, Wal-Mart, K-mart,
Target, Ace Hardware, TruServ, Do It Best and other
retailers. Miranda tr. at pp. 20-22, 25-30. Sales of some
of opposer’s B-GON products have been significant, as have

8 While Mr. Miranda testified that opposer is an affiliate of The
Scotts Company, opposer contends at p. 9 of its brief that The
Scotts Company changed its name subsequent to Mr. Miranda’s
deposition to The Scotts Miracle-Gro Company.
Opposition No. 91156249
6
amounts spent in advertising some of such products. Miranda
tr. at pp. 33-36 and 54-56.
Applicant was the primary national distributor of B-GON
products sold by Monsanto prior to the 1999 acquisition of
the Ortho line by The Scotts Company. Miranda tr. at p. 42.
After The Scotts Company acquired the Ortho line, the
distributor relationship was terminated.9 Miranda tr. at p.
43.
In 1996, applicant “adopted a corporate strategy to
manufacture and distribute more of its own products, instead
of primarily distributing products of other companies.”
Vogelgesang tr. at pp. 47-50. Applicant created a division
named Excel Marketing to help applicant build its line of
proprietary brands. Brex tr. at p. 76. Excel Marketing
developed, inter alia, a “value line” of products, i.e.,
“value” products which are cheaper than “name brand”
products such as Ortho products. Vogelgesang tr. at pp. 43,
45 and 49; Brex tr. at p. 11; and Wall tr. at pp. 15, 71–72.
Part of applicant's process for developing a “value
line” of products included a name generation project.
Exhibit 5 to Wall tr. at pp. DEF 00443, 0459; Exhibit 7 to
Wall tr. at p. DEF 0350. In 1997, applicant retained Mr.

9 According to Mr. Yeager, applicant stopped distributing Ortho
products in “approximately August of 2000.” Yeager tr. at p. 63.

Opposition No. 91156249
7
Wall as a consultant to develop brand names for applicant’s
new line
of lawn and garden chemical products. Wall tr. at pp. 12 –
14. With the assistance of professional naming companies
hired by applicant, the term “easygone” was “generated” as
were many others such as “maxide.” Wall tr. at p. 21;
Exhibit 5 to Wall tr. at p. DEF 00468. Applicant screened
many of such names internally to “whittle them down” by
conducting consumer focus groups known as “I-PARs.” Wall
tr. at p. 26, Vogelgesang tr. at pp. 77–79 and 99.
Additionally, applicant's trademark attorney commissioned a
Thomson & Thomson (“T&T”) search for the six top marks
generated by the naming companies, which included a search
for “EASY GON,” and which was reviewed by the trademark
attorney. Opposer’s Exhibit 8 (T&T report); Wall tr. at pp.
27, 28, 33 and 34. Subsequently, in “approximately 1999,”
applicant had discussions with Orchard Supply Hardware
(“OSH”), a retailer with approximately eighty-five stores in
California and Nevada, regarding developing a value brand of
consumer herbicides and insecticides for sale in OSH stores.
Brex tr. Exhibit 21, p. 49; Yeager tr. at p. 62; Vogelgesang
tr. at p. 11, 25 and 35. OSH was offered a choice of marks
and chose EASYGONE. Brex tr. at p. 52. Mr. Brex, president
of Excel Marketing at the time, approved OSH’s choice. Brex
tr. at p. 52. In December 2000, applicant launched EASYGONE
Opposition No. 91156249
8
herbicides and insecticides. Yeager tr. at p. 18; and
Yeager Exhibit 2.
Preliminary Matters
Before addressing the merits of this case, we must
consider several objections raised by applicant.
First, applicant has objected “to any reliance by OMS
on the registration of the mark PEST-B-GON for any purposes
including, but not limited to, any attempt by OMS to show
that it has a family of marks.” According to applicant, Mr.
Miranda testified that opposer “no longer sells or
distributes any product under the name PEST-B-GON … [and]
that he had no personal knowledge of PEST-B-GON products.”
Brief at p. 12.
Opposer has not introduced a status and title copy of
the PEST-B-GON registration into the record, nor offered any
testimony on its existence, ownership or renewal.
Accordingly, the registration is not in evidence and we give
no further consideration to opposer's claim of ownership of
a registration for PEST-B-GON. Applicant's objection on the
basis of non-use of the mark is moot.
Second, applicant has objected to the statement
“[a]round this time, Central Garden [applicant] began to
explore the possibility of marketing its own brands of pest
control products, in part to recoup some of the revenue it
lost as a result of the Ortho transaction” found on p. 11 of
Opposition No. 91156249
9
opposer's brief. Applicant maintains that “there is no
evidence that Central Garden [applicant] explored marketing
its own brands of pest control products for the reason of
recouping ‘some of the revenue it lost as a result of the
Ortho transaction.’” Brief at p. 12.
Because there is no evidence to support opposer's
contention, applicant's objection is sustained to the extent
that we consider the statement on p. 11 of opposer's brief
only for the argument that it is.
Third, applicant objects on the basis of hearsay to the
document entitled “Review and Analysis of This Report” by
Dr. Carl E. Block as Opposer's Exhibit 11 to the deposition
of Dr. Cogan.10 According to applicant, opposer “did not
lay a foundation for admitting the report by deposing
Dr. Block.” Thus, applicant maintains, opposer “should not
be allowed to refer or rely on Opposer's Exhibit 11 for any
purpose.” Brief at p. 13.
Opposer responds that “[t]he Block report is intended
as an impeachment exhibit [and] Applicant itself did submit
into evidence the rebuttal report prepared by [Dr.] Cogan in
response to the Block report. As the Cogan rebuttal in most
cases repeats the assertions in the Block report in order to

10 The “Review and Analysis” addresses Dr. Cogan’s report
regarding a survey she performed on applicant's behalf in support
of its contention that there is no likelihood of confusion
between opposer's marks and applicant's mark. See discussion,
infra.
Opposition No. 91156249
10
rebut them, this is a largely hollow debate.” Reply at fn.
1, p. 18.
Applicant's objection to Exhibit 11 on the basis of
hearsay is sustained. Because neither party has taken the
testimonial deposition of Dr. Block, the material in the
report is hearsay. We have not considered the Block report
in rendering our decision herein.
Priority

Applicant states in its brief that it “concedes that
some of OMS’ [opposer's] marks, such as WEED-B-GON and BUG-
B-GON, have priority of use.” Brief at p. 13. Also,
opposer has entered into evidence a status and title copy of
Registration Nos. 2073033, 1995777, 1301169 and 2646066 for
the marks BUG-B-GON, GRASS-B-GON (stylized), BRUSH-B-GON and
ANT-B-GON (stylized), respectively, and Mr. Miranda has
testified that opposer is the owner of such registrations.
Miranda tr. at pp. 16 – 19.11 In view thereof, Section 2(d)
priority of use is not an issue in this case as to WEED-B-
GON, BUG-B-GON, BRUSH-B-GON, GRASS-B-GON and ANT-B-GON
(hereinafter, “the involved marks.”) See King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108
(CCPA 1974).

11 Opposer entered a status and title copy of Registration No.
889348 for WEED-B-GON into the record. However, on April 28,
2001, Registration No. 889348 expired because it was not renewed.
We therefore give no further consideration to Registration No.
889348.
Opposition No. 91156249
11
Likelihood of Confusion

Our determination under Section 2(d) is based on an
analysis of all of the 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 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). 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 (CCPA
1976).
The salient question to be determined is not whether
the involved goods of the parties are likely to be confused,
but rather whether there is a likelihood that the relevant
purchasing public will be misled to believe that the goods
offered under the involved marks originate from a common
source. See J.C. Hall Company v. Hallmark Cards, Inc., 340
F.2d 960, 144 USPQ 435 (CCPA 1965); The State Historical
Society of Wisconsin v. Ringling Bros.-Barnum & Bailey
Combined Shows, Inc., 190 USPQ 25 (TTAB 1976).
Opposition No. 91156249
12
The Goods
We first examine the similarities or dissimilarities of
the parties’ goods, considering the goods as they are
described in the identification of goods in the applicant's
application and opposer's registrations. See Paula Payne
Products Co. v. Johnson Publishing Co., Inc., 473 F.2d 901,
177 USPQ 76 (CCPA 1973). Applicant's “herbicides … for
agricultural and domestic use,” are encompassed within
opposer's identifications for GRASS-B-GON (“pesticides and
herbicides for home and garden use”) and BRUSH-B-GON
(“pesticide – [n]amely, [h]erbicide”). Also, applicant's
herbicides are identical to opposer's WEED-B-GON product,
which Mr. Miranda has characterized as a product that “kills
weeds in lawns without harming the lawn.” Further,
applicant's “insecticides for agricultural and domestic use”
are encompassed within opposer's identifications for BUG-B-
GON (“insecticides for home and garden use”) and identical
to ANT-B-GON (“insecticides for agricultural and domestic
use”). We therefore resolve this factor in opposer's favor.
Trade Channels

Given the absence of any restrictions or limitations in
the parties’ respective identifications of goods in the
application and the registrations, the parties’ herbicides
and insecticides are deemed to be marketed in the same trade
channels and to the same classes of purchasers. Kangol Ltd.
Opposition No. 91156249
13
v. KangaROOS U.S.A. Inc., 974 F.2d 161, 23 USPQ2d 1945 (Fed.
Cir. 1992). Such trade channels include retail home
improvement, hardware and garden centers. Indeed, Mr.
Yeager has testified that EASYGONE products are sold at OSH
and that “Ortho Products [are] also sold at Orchard Supply
Hardware”; and that one would expect that BUG-B-GON and
WEED-B-GON to be placed on the shelves at OSH in close
proximity to the EASYGONE products. Yeager tr. at pp. 13 -
15. Thus, the parties’ goods, in fact, travel through the
same channels of trade. This factor hence is resolved in
opposer's favor.
The Marks
We next consider the similarities and dissimilarities
of the parties’ marks. We must determine whether the marks
are similar in sound, appearance, meaning, and commercial
impression. Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. Cir. 2005). A “[s]ide by side comparison is not
the test.” Grandpa Pidgeon's of Missouri, Inc. v.
Borgsmiller, 477 F.2d 586, 177 USPQ 573 (CCPA 1973). The
focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression
of trademarks. Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975).
Opposition No. 91156249
14
It is apparent that both marks contain three syllables,
with GON or GONE forming the last syllable and word in the
marks. The middle syllable in each mark forms a letter
ending with an “ee” sound, i.e., the letter “b” in the case
of opposer's marks and the letter “z” in the case of
applicant's mark. Opposer correctly notes that the marks
have a similar cadence and do rhyme with one another. Thus,
when considering the marks as a whole, there clearly are
similarities in sound. Further, the marks are similar in
connotation and commercial impression in that they suggest
that the lawn or garden problem facing the purchaser will
terminate through the use of the parties’ goods.12 Thus,
while there may be differences in the appearance and meaning
of the marks through the initial wording in the marks, the
overall similarities in sound, meaning and commercial
impression due to the remaining portions of the marks
outweigh such differences.
Opposer, in its main brief at p. 15, argues that “the
final and most dominant syllable in the marks is the term

12 In this regard, we reject applicant's argument regarding
differences in connotation of the marks; i.e., that consumers
associate EASYGONE with an easy to use product while opposer's
marks communicate that use of its products will result in a
specific problem being eliminated. The distinction in the
connotations of the marks advanced by applicant is too subtle and
likely would be lost on prospective purchasers of the parties’
products - the typical consumer will not likely study the marks’
connotations to discern such differences. As noted above, the
focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of
trademarks. Id.
Opposition No. 91156249
15
GON or GONE.”13 Applicant disagrees, and argues that the
first word or prefix in a mark is usually given greater
weight as the dominant feature; and that “‘GON’ is
descriptive of opposer's goods in that it informs the
customer exactly what the products will do.” Brief at pp.
15 - 16. Further, according to applicant, “[g]iven the
inherent weakness of the suffix ‘B-GON,’ the prefix of the
marks … would be given greater weight as the dominant
feature of the respective marks.”14 Brief at p. 17.
Certainly, the terms WEED, BUG, BRUSH, GRASS and ANT
identify the problem which the goods are intended to
eliminate, and hence are descriptive of a feature of the
goods. B-GON communicates that the problem will be
eliminated or “gone” with opposer's goods and is suggestive
of a result one would achieve in using the goods. Thus, the

13 We note that in its reply at p. 6, opposer states that “B-GON
is the dominant feature of Opposer's marks.” Our analysis is the
same whether it is opposer's contention that GON or B-GON is the
dominant portion of the mark.
14 Applicant also argues that GON or B-GON is “weak” and is
“descriptive of the associated goods … as it informs the customer
exactly what the products will do” in view of the twenty-two
third-party registrations in evidence for marks that include B
GONE or BE GONE. Brief at p. 15. We acknowledge that “[t]hird-
party registrations are probative evidence of the meaning of a
word, in the same way that a dictionary can be used … [and that]
third-party registrations of composite marks including an
allegedly descriptive term can be used to help prove the
descriptive nature of that term.” 2 J. Thomas McCarthy, McCarthy
on Trademarks and Unfair Competition, 11:69 (4th ed. database
updated 2006). None of the registrations includes a disclaimer
of GONE, B GONE or BE GONE and none of the goods set forth in the
registrations is in the nature of opposer's goods. Thus, we are
not persuaded that GON or B-GON is descriptive or weak in the
context of opposer's goods.
Opposition No. 91156249
16
dominant portion of opposer's marks is B-GON. EASYGONE
suggests a result that one would achieve – that something
will be “gone” - and the manner the result is achieved,
i.e., with ease. In our view, neither EASY nor GONE is
dominant over the other.
In view of the foregoing, and mindful that “[w]hen
marks would appear on virtually identical goods or services,
the degree of similarity necessary to support a conclusion
of likely confusion declines,” Century 21 Real Estate Corp.
v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698
(Fed. Cir. 1992), we resolve this du Pont factor regarding
the similarities of the marks in opposer’s favor.
Conditions Under Which and Buyers
to Whom Sales Are Made

Opposer maintains that both applicant's and opposer's
goods are “rather inexpensive and are subject to the same
sort of impulse buying by consumers as occurs with food and
related grocery items.” Brief at p. 16. Opposer adds that
when goods are low in price and subject to impulse buying,
the risk of likelihood of confusion is increased, citing,
inter alia, Recot Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d
1894 (Fed. Cir. 2000). Brief at p. 16.
Applicant, on the other hand, points out that opposer's
and applicant's products are “all chemical products used as
pesticides around consumers’ lawn and gardens”; and that

Opposition No. 91156249
17
“[c]onsumers will spend a long amount of time studying
pesticide product labels.” Brief at pp. 19-20.
Consequently, applicant concludes that “consumers are
unlikely to be confused by the co-existence of EASYGONE with
Opposer's marks.” Id. at p. 20.
However, even if a prospective purchaser is careful in
choosing a pesticide product and spends time studying the
product labels, it does not follow that he or she will also
examine the trademarks on the product. Also, there is a
dearth of record evidence on this factor, and we are unaware
of any precedent that discusses the conditions under which
and buyers to whom sales are made for goods of the type
involved in this proceeding. Therefore, we do not resolve
this factor in either party’s favor but rather consider it
neutral.
Family of Marks
The family of marks doctrine applies in situations
where the plaintiff had established a group of marks
characterized by a recognizable common characteristic,
wherein the marks are composed and used in such a way that
the public associates not only the individual marks, but the
common characteristic of the family, with the trademark
owner. See J & J Snack Foods Corp. v. McDonald's Corp., 932
F.2d 1460, 18 USPQ2d 1889 (Fed. Cir. 1991).
Opposition No. 91156249
18
It is well settled that merely adopting, using and
registering a group of marks having a feature in common for
similar goods or related goods or services is insufficient
to establish, as against a defendant, a claim of ownership
of a family of marks characterized by the feature. Rather,
it must be demonstrated that prior to defendant's first use
of its challenged mark, the various marks said to constitute
the family, or at least a good number of them, were used and
promoted together in such a manner as to create among
purchasers an association of common ownership based upon the
family characteristic. Id., 18 USPQ2d at 1891. See also
Hester Industries Inc. v. Tyson Foods Inc., 2 USPQ2d 1646
(TTAB 1987); Cambridge Filter Corp. v. Sensodyne Corp., 189
USPQ 99 (TTAB 1975). “It is thus necessary to consider the
use, advertisement, and distinctiveness of the marks,
including assessment of the contribution of the common
feature to the recognition of the marks as of common
origin.” J & J Snack Foods, 18 USPQ2d at 1891.
In support of its assertion that it has a family of
marks, opposer relies on the following testimony from Mr.
Miranda at pp. 39 – 40 of his trial deposition:
Q. Have there been displays constructed by The
Scotts Company for advertising its B-Gon
family of marks and products since 1999 that
display, in fact, the full family or a
portion of the full family of B-Gon products?

A. Yes.

Opposition No. 91156249
19
Opposer also maintains that applicant itself has recognized
“that the B-GON marks constitute a family,” relying on
Exhibit 10 of Mr. Vogelgesang’s testimonial deposition,
i.e., a document prepared by Mr. Yeager for a presentation,
entitled “Orchard Supply Hardware Easy Gone Development
Project,” stating “Presented August, 2003,” which applicant
produced in discovery. Brief at p. 20; Vogelgesang tr. at
pp. 87, 93. The document “discusse[s] whether or not
consumers had confusion between EASYGONE and the “B-GON
products,” brief at p. 20, and states in relevant part:
“[w]ith rare exceptions the name is not associated with the
Ortho brand, nor does there appear to be any confusion in
consumers’ minds between Easy Gone products and ‘-B-Gon’
products.” Exhibit 10, Vogelgesang dep., p. 10.5.
In this case, the record does not show that the B-GON
marks were used and promoted together in such a manner as to
create among purchasers an association of common ownership
based upon the family characteristic, i.e., B-GON. Mr.
Miranda, who was also opposer's Fed. R. Civ. P. 30(b)(6)
witness, stated in his discovery deposition that BUG-B-GON
has always been advertised alone and never with any other
products; that WEED-B-GON has not been advertised with any
of opposer's other B-GON products; that he was not aware if
WEED-B-GON and BUG-B-GON were ever advertised together in
radio or television advertisements; and that he was not
Opposition No. 91156249
20
aware of any end-aisle displays that featured more than one
B-GON product together. See applicant's first notice of
reliance (filed November 22, 2004), Miranda discovery dep.
at pp. 80-83, 90-94. Further, even if the displays Mr.
Miranda mentioned in his testimonial deposition promoted
several members of the alleged family of marks concurrently,
there is no testimony as to how frequently such displays
have been used, where in stores such displays are set up or
how many people viewed such displays. Also, the statement
in the material Mr. Yeager included in his presentation
materials to OSH can hardly be considered an admission or
acknowledgement on applicant's part that opposer's asserted
marks constitute a family of marks – the statement only
references “–B-Gon” products. The statement does not
include the term “family” and says nothing about use and
promotion of the marks in such a manner as to create an
association among purchasers of common ownership based upon
the common characteristic.
Thus, opposer has not met its burden of establishing
that a family of marks exists in this case. As applicant
has pointed out, simply using a series of similar marks does
not of itself establish the existence of a family. Brief at
p. 22.
Fame of Opposer's Marks
Opposition No. 91156249
21
The Federal Circuit, our primary reviewing court, has
stated that fame of the prior mark plays a dominant role in
cases featuring a famous or strong mark. Century 21 Real
Estate, 23 USPQ2d 1701, quoting, Kenner Parker Toys v. Rose
Art Industries, 963 F.2d 350, 22 USPQ2d 1453 (Fed. Cir.
1992). “[A] mark with extensive public recognition and
renown deserves and receives more legal protection than an
obscure or weak mark.” Id., 22 USPQ2d at 1456. “[F]ame of
a mark may be measured indirectly, among other things, by
the volume of sales and advertising expenditures of the
goods traveling under the mark, and by the length of time
those indicia of commercial awareness have been evident.”
Bose Corp. v. QSC Audio Products, Inc., 293 F.3d 1367, 63
USPQ2d 1303 (Fed. Cir. 2002). When the statistics of sales
and advertising as indicia of fame are large, the Federal
Circuit has tended to accept them without any further
supporting proof. Id., 63 USPQ2d at 1306.
In support of its contention that opposer's B-GON marks
are famous, opposer relies on Mr. Miranda’s trial testimony.
Mr. Miranda testified to opposer's (i) annual sales revenue
for the 1997/1998 time period for B-GON products when
applicant was distributing B-GON products;15 (ii) average
yearly revenue of opposer's B-GON products; and (iii) sales
revenue for 2003 for each of the WEED-B-GON, BUG-B-GON,
Opposition No. 91156249
22
MOSQUITO-B-GON, GRASS-B-GON, BRUSH-B-GON and ANT-B-GON
products.16 Miranda tr. at pp. 32-34. Mr. Miranda also
testified that opposer primarily advertises its BUG-B-GON
and WEED-B-GON marks on television, but also advertises them
on the radio and in print;17 that opposer's television and
radio advertising commenced in 1999; and to the amounts
opposer has spent annually in national television
advertising and radio advertising. Miranda dep. at p. 81;
Miranda tr. at pp. 34 – 36.18 Further, Mr. Miranda has
testified that opposer has commenced several legal
proceedings involving the B-GON marks to protect the
strength of the marks. Miranda tr. at pp. 46 – 47.
Because opposer has not established that it has a
family of marks, we consider whether each of the involved
marks is famous. After carefully considering the evidence
of record, particularly the sales revenue, advertising
expenditures and duration of use testified to by Mr.

15 As mentioned earlier in this decision, opposer acquired the B-
GON marks from Monsanto in 1999.
16 Opposer maintains that its revenue and advertising figures are
confidential. Thus, they are not set forth in our decision.
17 Mr. Miranda testified that opposer's print advertising has been
in local newspapers and “run of press.”
18 Mr. Miranda stated that “displays set up in stores” are another
form of advertising of the B-GON marks; that from 1999 to 2004,
applicant set up displays in Home Depot, Lowe’s, Wal-Mart and
other chains, and that the displays are for WEED-B-GON, BUG-B-
GON, BRUSH-B-GON, GRASS-B-GON, ANT-B-GON, and other B-GON
products. Miranda tr. at pp. 38 - 39. For the reasons discussed
earlier in this decision regarding opposer's displays, its
displays are accorded limited weight in our determination of
whether opposer's marks are famous.

Opposition No. 91156249
23
Miranda, we find that there is evidence of some fame, but
only of the WEED-B-GON mark. See Palm Bay Imports, 73
USPQ2d at 1691 (“likelihood of confusion fame varies along a
spectrum from very strong to very weak.”) The record
reflects use of WEED—B-GON on herbicides “going back to the
early 1990s,”19 Miranda tr. at p. 54, and the sales and
advertising figures are of a size comparable to sales and
advertising figures in other cases where fame has been
found. See, e.g., Nina Ricci, S.A.R.L. v. E.T.F. Enters.,
Inc., 889 F.2d 1070, 12 USPQ2d 1901 (Fed. Cir. 1989) (NINA
RICCI for perfume, clothing and accessories: $200 million in
sales, over $37 million in advertising over 27 years);
Kimberly-Clark Corp. v. H. Douglas Enter., Ltd., 774 F.2d
1144, 227 USPQ 541 (Fed. Cir. 1985) (HUGGIES for diapers:
over $300 million in sales over 9 years, $15 million in
advertising in one year); Specialty Brands Inc. v. Coffee
Bean Distribs., Inc., 748 F.2d 669, 223 USPQ 1281 (Fed. Cir.
1984) (SPICE ISLANDS for teas, spices and seasonings: $25
million annually in sales for spices, $12 million between
1959 and 1981 for tea, “several million” in advertising, in
use for 40 years); Planters Nut & Chocolate Co. v. Crown Nut
Co., 305 F.2d 916, 134 USPQ 504 (CCPA 1962) (MR. PEANUT

19 As noted earlier, we do not consider the registration asserted
by opposer for WEED-B-GON which opposer alleges was registered in
1970 because the record does not contain a copy of the
registration that has been suitably authenticated.

Opposition No. 91156249
24
DESIGN for nuts and nut products: $350 million in sales, $10
million in advertising over 10 years). We thus need not
resort to other indicia of fame, such as market share,
critical acclaim or survey evidence. As for BUG-B-GON, the
evidence of record reflects that even though the mark has
been in use since 1983, roughly twenty years ago,20 BUG-B-
GON has not generated the sales revenue that WEED-B-GON has
generated. Also, there is no evidence of record regarding
BUG-B-GON’s market share or critical acclaim of BUG-B-GON,
or of a survey that supports opposer's assertion of fame of
the BUG-B-GON mark. Thus, on the record in this case, we do
not conclude that BUG-B-GON is a famous mark. However, the
sales revenue and advertising expenditures have been
sufficient to establish that BUG-B-GON mark is a strong,
well-known mark. As for opposer's remaining involved marks,
the underlying goods have not enjoyed nearly the same sales
revenue as the sales revenue for either WEED-B-GON or BUG-B-
GON, and are not advertised other than at the point of
purchase. See Miranda discovery deposition at p. 81. Thus,
on this record, we do not find that such marks, namely,

20 Opposer maintains in its brief that “the B-GON line of products
dates back to at least as early as 1945, when the first B-GON
mark (PEST-B-GON) was registered by Opposer's predecessor-in-
interest.” Brief at p. 17. While applicant's attorney’s
representation may be true, because opposer has not introduced
evidence as to the first use dates of any of the B-GON marks in
issue, opposer is limited to claiming the filing date of the
applications for the marks in issue.
Opposition No. 91156249
25
GRASS-B-GON, BRUSH-B-GON and ANT-B-GON, are famous or even
well-known.
Applicant has challenged the evidence on which opposer
relies in arguing that its marks are famous, maintaining
that “[f]ame of a mark is shown by evidence of advertising
figures, sales, market share, and survey evidence regarding
recognition of a mark”; that “[s]ales numbers alone are not
sufficient to establish the fame of a mark”; and that
applicant “did not introduce any documents regarding its
sales revenue for its B-GON products, nor did it introduce
any documents relating to its advertising expenditures, nor
did it introduce samples of its advertising or promotional
displays.” Brief at p. 20. Applicant points out that
opposer only relied on the testimony of Mr. Miranda, “who
testified that he only reviewed [a]dvertising [e]xpenditures
from 1999-2002 to prepare for his deposition”; and “did not
talk with anyone … to prepare for his deposition.” Id.
Applicant's challenge to opposer's reliance on Mr.
Miranda’s testimony is not well taken. Mr. Miranda is a
brand manager for opposer, and his duties “include
developing and executing marketing plans, promotional plans,
career development in terms of advertising, new product
development, and profit and loss statement[s].” Miranda tr.
at pp. 6-7. In view of his duties, there is no reason to
question the sales revenue and advertising expenditures to
Opposition No. 91156249
26
which he testified.21 Thus, while opposer has not
introduced documentary evidence in support of its sales
revenue and advertising expenditures, its failure to do so
does not defeat its contention that the B-GON marks are
famous. Further, applicant's contention that “[s]ales
numbers alone are not sufficient to establish the fame of a
mark” is of no moment – opposer has not relied only on sales
numbers.
Thus, the factor of fame is resolved in opposer's
favor, but only with respect to the WEED-B-GON mark.
Number And Nature Of
Similar Marks In Use On Similar Goods

Pursuant to a notice of reliance, applicant has
introduced into evidence twenty-two third-party
registrations taken from the Trademark Electronic Search
System (TESS) for marks which incorporate the formative “BE-
GONE” or “B-GONE” for what applicant characterizes as
“various consumer products, many of which would be found in
the stores that sell lawn and garden products such as
[applicant's] products.”22 Brief at p. 15. It is well

21 We note opposer's contention set forth on p. 9 of its reply
that opposer did produce documents during the discovery period
concerning its advertising and sales figures, and that applicant
did not challenge Mr. Miranda’s testimony during his testimonial
deposition.
22 Applicant has also, pursuant to a notice of reliance,
introduced into evidence TESS copies of various trademark
applications for marks containing the formative “BE GONE” or “B
GONE.” We give no further consideration to these applications
because applications serve only as evidence that the applications
Opposition No. 91156249
27
established that third-party registrations, by themselves,
are entitled to little weight on the question of likelihood
of confusion. In re Hub Distributing, Inc., 218 USPQ 284
(TTAB 1983). Third-party registrations are not evidence of
what happens in the marketplace, or that the public is
familiar with the use of such marks. AMF Inc. v. American
Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268 (CCPA
1973). Moreover, the various goods and services which the
third-party registrations list are unrelated to applicant's
goods. See, e.g., Registration No. 2890193 for MONSTERS BE
GONE for “bubble bath”; Registration No. 2660748 for TAT2 BE
GONE for “providing plastic surgical cosmetic procedures,
namely the removal of tattoos, vascular veins, age spots,
scars and wrinkles”; and Registration No. 2634445 for DOO BE
GONE for “cleaning preparations, namely, liquid cleaning
products for removal of bird droppings.”23 In view of the
foregoing, and because applicant's and registrant’s goods
are essentially identical, we resolve this du Pont factor in
opposer's favor.

were filed. In re Phillips Van Heusen Corp., 63 USPQ2d 1047
(TTAB 2002).
23 Applicant also identified Registration No. 2157411 for FROST B-
GONE and design, but Office records reflect that Registration No.
2157411 was cancelled on February 19, 2005. We therefore give no
further consideration to Registration No. 2157411.
Opposition No. 91156249
28
Absence Of Actual Confusion and Length of Time During and
Conditions Under Which There Has Been Concurrent Use Without
Evidence of Actual Confusion

Applicant maintains that EASYGONE products are only
sold at OSH stores, numbering approximately eighty-five
stores throughout California. Vogelgesang tr. at pp. 11 and
22. Opposer's goods under opposer's involved marks are also
sold at OSH stores, and some of opposer's and applicant's
goods are sold in close proximity to each other. Mr.
Yeager, whose responsibilities include the business
management, marketing and strategic planning of EASYGONE
products, testified that no one at OSH has reported to him
any confusion between EASYGONE and any B-GON product.
Yeager tr. at pp. 6, 13 and 64. Opposer maintains too that
it is unaware of any instances of actual confusion.
Response to applicant's Interrogatory No. 42.
While there is no evidence of actual confusion, this
fact does not indicate that there is no likelihood of
confusion. The absence of actual confusion does not mean
there is no likelihood of confusion. Giant Food, Inc. v.
Nation's Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390
(Fed. Cir. 1983); J & J Snack Foods, 18 USPQ2d at 1892.
Additionally, the record does not reflect how long both
parties’ goods have been sold concurrently at OSH and the
extent of sales of EASYGONE goods. Thus, to the extent that
Opposition No. 91156249
29
this factor is probative, it is neutral and not resolved in
favor of either party.
Applicant's Survey
Applicant commissioned a survey to “determine whether
or not there is a likelihood of confusion of source or
affiliation among consumers in the relevant market
concerning [opposer's] marks WEED-B-GON [and] BUG-B-GON,
with [applicant's] mark EASYGONE.” Survey Report,
Exhibit 10 to Cogan tr. (hereinafter “Exhibit 10.”) The
survey concluded that there was no likelihood of confusion
between EASYGONE and WEED-B-GON, and EASYGONE and BUG-B-GON.
The survey was conducted by Dr. Cogan, who has an MBA
in marketing and a doctorate degree in business
administration. Cogan tr. at pp. 7–8. Over the course of
her career, Dr. Cogan estimates she has conducted over four
hundred surveys, of which at least one hundred and fifty
surveys have involved trademark or unfair competition
issues. Cogan tr. at pp. 12-16. Additionally, Dr. Cogan
has been designated as a survey expert in fourteen federal
court actions and four state court actions. Cogan tr. at
pp. 14–15.
The survey conducted by Dr. Cogan was a “mall
intercept” survey designed to recreate the marketplace.
Cogan tr. at p. 42. Dr. Cogan conducted two product line-up
surveys in malls located in West Covina, California;
Opposition No. 91156249
30
Ontario, California; Orland Park, Illinois; Lombard,
Illinois; and Bradenton, Florida. According to Dr. Cogan,
the two malls in California were chosen because of the
availability of EASYGONE products in the area; and the malls
in Illinois and Florida were chosen because they are “areas
with strong gardening activity and good sales of OMS’ WEED-
B-GON and BUG-B-GON products.” Cogan tr. at pp. 20-21.
Potential respondents were screened in order to
participate in the survey. They were deemed qualified if
they were over eighteen years of age, lived less than one-
hundred miles from the mall interviewing location and had a
home lawn or garden which they cared for in the past year.
Further, they must have purchased any lawn weed killer or
any lawn and garden insect killer in the past. Exhibit 10
at p. DEF 3004.
In the first product line-up – identified as the weed
control survey – one hundred survey respondents were shown
two displays of lawn weed killers. The respondents first
viewed a container of opposer's WEED-B-GON. After they
finished viewing the container, it was covered. Next, the
survey respondents were shown a display of three lawn weed
killer containers; EASYGONE, and two control brands, i.e.,
ADVANCED Lawn All-In-One Weed Killer for Lawns, and WEED
Opposition No. 91156249
31
STOP Weed Killer for Lawns (“Weed Stop”).24 According to
applicant, ADVANCED and WEED STOP were selected because
“they are major brands that have products with the same
functions as the WEED-B-GON lawn weed killer product and the
EASYGONE lawn weed killer product.” Brief at p. 36.
In the second product line-up, another hundred survey
respondents were shown two displays of insect killers. The
respondents first saw a container of BUG-B-GON. After they
finished viewing the container, it was covered. Next, the
survey respondents were shown a second display which
included three yard and garden insect killers, i.e.,
EASYGONE, and two “control brands,” namely, ADVANCED Garden
Power Force Multi-Insect Killer and BUG STOP Multi-Purpose
Insect Control Concentrate. Applicant maintains that these
brands were selected because “they are major brands that
have products with the same functions as the BUG-B-GON
Garden and Landscape Insect Killer product and the EASYGONE
Multi Purpose Yard and Garden Insect Killer product.” Brief
at p. 37.
After the respondents had a chance to view the second
displays, each respondent was asked:
Do you think any of these (lawn weed killers) or
(lawn and garden insect killers) is made by the
same company as the company which makes the (lawn
weed killer) or (lawn and garden insect killer)
you just saw?

24 The purpose of including the “control brands was to measure the
level of survey “noise” or respondent “guessing.”
Opposition No. 91156249
32

Twenty-five persons in the weed killer survey answered “yes”
and twenty persons in the insect killer survey answered
“yes,” for a total of forty-five persons who said “yes.”
The forty-five persons who said “yes” then were asked the
following question:
Which of these (lawn weed killers) or (lawn and
garden insect killers) do you think is made by the
same company which makes the (lawn weed killer) or
lawn and garden insect killer) you saw first?

Eight of the two hundred survey respondents selected
EASYGONE, twelve selected ADVANCED Lawn/ADVANCED Garden and
twenty-nine selected WEED STOP/BUG STOP. Exhibit 10, pp.
DEF 3005–3007.
When these eight respondents who selected EASYGONE were
asked why they thought WEED-B-GON or BUG-B-GON and EASYGONE
were products made by the same company, “only one mentioned
that the names sounded similar. Others mentioned the style,
designs, colors, the handle, the bottle shape and that OSH
is a store brand that is contracted out to someone else.”
Exhibit 10, p. DEF 3010.
Next, Dr. Cogan asked “follow-up assessment questions …
to provide respondents with sufficient opportunity to voice
an opinion regarding a relationship between EASYGONE and
WEED-B-GON.” Brief at p. 34. Specifically, respondents
were asked:
Do you think any of these (lawn weed killers) or
(lawn and garden insect killers) is licensed by,
Opposition No. 91156249
33
sponsored by, or connected in any way with the
company which makes the (lawn weed killer) or
(lawn and garden insect killer) you saw first?

Twenty-four respondents in each survey (weed killer and
insect killer) responded “yes.”25 They then were asked the
following question:
Which of these (lawn weed killers) or (lawn and
garden insect killers) do you think is licensed
by, sponsored by, or connected with the company
which makes the (lawn weed killer) or (lawn and
garden insect killer) you saw first?

Five respondents identified EASYGONE in the weed killer
survey and seven respondents identified EASYGONE in the
insect killer survey. Exhibit 10, p. DEF 3043.
From the foregoing, applicant concludes:
In the Weed-Control survey, six percent of the
respondents thought there was a source affiliation
between EASYGONE and WEED-B-GON. This is less
than the background noise level of fourteen
percent for the control brands. In the Bug-
Control Survey, nine percent thought there was a
source affiliation between EASYGONE and BUG-B-GON.
Again, this is less than the background noise
level of 13.5% for the control brands.
Accordingly, there is no likelihood of confusion
between EASYGONE and WEED-B-GON or BUG-B-GON.

… If the results of the Weed-Control and the Bug-
Control surveys are combined, a total of fifteen
respondents out of the total two-hundred
respondents, or 7.5%, thought that EASYGONE was
made by the same company that made WEED-B-GON and
BUG-B-GON. Out of the fifteen, only one person
gave a reason for the confusion [which] was the
similarity of the names. The level of confusion

25 According to applicant, by asking this question, applicant “was
bending over backwards to find out if any confusion existed in
the marketplace between EASYGONE and WEED-B-GON.” Brief at p.
34.
Opposition No. 91156249
34
found by the survey is less than the average noise
level of 13.7%.

In Helene Curtis Indus., Inc. v. Suave Shoe Corp.,
13 USPQ2d 1618 (TTAB 1989), this Board noted that
a 7.6 percent level of confusion is not
significant, while surveys disclosing a likelihood
of confusion in the range of 11 percent to 25
percent have been found to be significant.
Accordingly, the results of this survey show a de
minimus level of confusion between EASYGONE and
WEED-B-GON/BUG-B-GON. (Citations omitted.
Underlining in original.) Brief at pp. 38-39.

We find that the survey is flawed in that the stimulus used
is one not suited for Board proceedings where the issue in
question is the registrability of the mark depicted in the
drawing. Specifically, applicant showed respondents
containers containing a variety of wording, shapes, colors
and trade dress. Applicant's marks and opposer's marks were
not displayed prominently, other marks were on the
containers, and the marks at issue here were subordinated to
other house marks and source indicators, which undoubtedly
influenced the responses. Further, opposer has noted that
the “EASYGONE container in each instance is shorter than all
three other containers; it is a bright white color as
compared to the dark colors of the other three containers;
and the EASYGONE containers are formed to make a closed
handle, where none of the other three containers are.”26

26 Opposer has also challenged the survey on the basis that the
survey is in reality two surveys with sample sizes too small to
be of any value; and that omitting respondents who responded
“don’t know” and persons who did not speak English from further
questioning was in error.
Opposition No. 91156249
35
Reply at p. 18. Applicant’s mark is in standard character
form, thus the stimulus should also have been in standard
character form. See Miles Laboratories Inc. v. Naturally
Vitamin Supplements Inc., 1 USPQ2d 1445 (TTAB 1986) (“In the
case before us, we have already held that the issue we have
to decide concerns only the likelihood of confusion of the
terms VIT-A-DAY and SUPER VIT-A-DAY with ONE A DAY, without
regard to any special form of lettering or design features
which may, in fact, be currently associated with either of
those word marks in the marketplace. Accordingly, using the
card on which the mark is displayed in block letters was the
only appropriate stimulus available to the survey
designer.”). See also Carl Karcher Enterprises, Inc. v.
Stars Restaurants Corp., 35 USPQ2d 1125 (TTAB 1995).
Applicant’s methodology was better suited for a survey for
trademark infringement litigation. Therefore, the survey
has extremely limited probative value in determining whether
there is a likelihood of confusion in this case.
Applicant's Intent
Applicant maintains as follows:
[T]he evidence of record shows that Applicant is
not simply a competitor who has stumbled upon an
infringing mark. Instead, Applicant is a former
distributor of the B-GON products which lost its
right to sell those products in connection with
Opposer’s acquisition of the marks from their
former owner. As such, Applicant had knowledge
of the large volume of sales and great success

Opposition No. 91156249
36
enjoyed by the B-GON products, and had every
motivation to ensure that the new house brand
names it wanted to develop would likewise enjoy
similar success. In this case, therefore, the
issue of intent is relevant, and it weighs
heavily in Opposer's favor. (Citations omitted.)
Brief at p. 21.

Opposer also cites, among other things, as evidence of
applicant's alleged bad faith to the fact that when a T&T
search was commissioned, it was for EASY GON rather than
EASYGONE or EASY GONE, with GON spelled the same as GON in
opposer's marks.
We are unpersuaded from the evidence before us that
applicant had any bad intent in adopting EASYGONE.
Applicant sought to develop a line of value products prior
to the termination of its distributorship relationship in
1999, retained naming companies to aid in the selection of a
trademark (and a naming company, not applicant, came up with
EASYGONE), commissioned a T&T search (although for the
phonetic equivalent EASY GON) which was reviewed by one of
its trademark attorneys and commissioned a research firm to
determine the impression EASYGONE would have on potential
consumers. Vogelgesang tr. at pp. 61, 83. Also, applicant
conducted its own in-house testing of EASYGONE and it was
OSH, not applicant, who chose the mark for the value line of
products to be sold in OSH’s stores, which choice was
approved by Excel Marketing.
Conclusion
Opposition No. 91156249
37
In view of the foregoing, we find that opposer has
established a likelihood of confusion between opposer's
WEED-B-GON mark and applicant's EASYGONE mark, particularly
because there is some evidence of fame of the WEED-B-GON
mark. We also find because opposer has established that
BUG-B-GON is a strong mark, that confusion is likely between
opposer's BUG-B-GON mark and applicant's EASYGONE mark.
However, with the remaining marks, i.e., BRUSH-B-GON, GRASS-
B-GON and ANT-B-GON, which have not been widely advertised
and whose underlying goods have not had the commercial
success applicant's other marks have had, we find that
opposer has not established a likelihood of confusion
between such marks and applicant's EASYGONE mark.
Dilution
The parties have not addressed opposer's dilution claim
in their briefs. Accordingly, and in view of our
determination that applicant's mark is likely to cause
confusion with opposer's WEED-B-GON and BUG-B-GON marks, we
need not reach opposer's dilution claim.
DECISION: The opposition is sustained on the basis of
likelihood of confusion under Section 2(d) and registration
to applicant is refused.