Pet Center, Inc.

Trademark Trial and Appeal Board

Dec 4, 2008

No. 76667082 (T.T.A.B. Dec. 4, 2008)

Mailed:
December 4, 2008
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Pet Center, Inc.
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Serial No. 76667082
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Thomas I. Rozsa of Rozsa Law Group LC for Pet Center, Inc.

Paul A. Moreno, Trademark Examining Attorney, Law Office 103
(Michael Hamilton, Managing Attorney).
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Before Bucher, Zervas and Taylor, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Pet Center, Inc. seeks registration on the Principal
Register of the mark PORKYCHEWZ (in standard character
format) for goods identified in the application, as amended,
as follows:
“edible chews for animals, namely, pork rind
hides for dogs” in International Class 31;1
This cases is before the Board on appeal from the final
refusal of the Trademark Examining Attorney to register this
mark based upon Section 2(d) of the Trademark Act, 15 U.S.C.

1 Application Serial No. 76667082 was filed on October 6, 2006
based upon applicant’s allegation of a bona fide intention to use
the mark in commerce.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 76667082
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§ 1052(d). The Trademark Examining Attorney has found that
applicant’s mark, when used in connection with the
identified goods, so resembles PORK CHEWZ registered in
for “edible pig skin treats in assorted shapes and sizes,
for dogs,” also in International Class 31,2 as to be likely
to cause confusion, to cause mistake or to deceive.
Applicant and the Trademark Examining Attorney fully
briefed the appeal. We affirm the refusal to register.
Applicant contends that there is no likelihood of
confusion given that “reconstituted pork-based bones for
dogs … have nothing whatsoever to do with intact pork
rinds … ”; that the respective marks are not confusingly
similar as to sound, meaning or appearance when considered
in their entireties; that the Trademark Examining Attorney
has improperly dissected applicant’s mark into its component
parts; and finally, that these two marks can peacefully
coexist in this field inasmuch as the cited mark is
registered on the Supplemental Register, the registration
contains a disclaimer of the right to use the word "Chews"
(or its phonetic equivalent, “Chewz”) and there cannot be

2 Registration No. 2833387 issued on the Supplemental Register
on April 13, 2004. No claim is made to the right to use the word
“Chews” apart from the mark as shown.

Serial No. 76667082
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any exclusivity as to the word “Pork” in the pet food
industry.
By contrast, the Trademark Examining Attorney argues
that the applied-for mark is confusingly similar to the
registered mark because the marks create similar commercial
impressions; that even if we should conclude that the cited
mark is “weak,” such marks are still entitled to protection
against registration by a subsequent user of the same or
similar mark for the same or closely-related goods or
services; that the goods are related; and that
applicant’s and registrant’s respective goods will move in
all normal channels of trade for such goods, and will be
available to all the same classes of potential customers.
Preliminary Matter
Three of the four exhibits that applicant has attached
to its reply brief purport to be copies of “printouts” of
registered marks for goods in International Class 31 having
some form of the words “Pork,” “Porky” or “Chew” within
them. Inasmuch as the evidentiary record in an application
should be complete prior to the filing of an ex parte appeal
to the Board, this new evidence filed with the reply brief
has been given no consideration. 37 CFR § 2.142(d).
Serial No. 76667082
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Likelihood of Confusion
We turn then to a consideration of the issue of
likelihood of confusion. Our determination of likelihood of
confusion is based upon our analysis of all of the probative
facts in evidence that are relevant to the factors bearing
on the issue. See In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In any likelihood of confusion analysis,
however, two key, although not exclusive, considerations are
the similarities between the marks and the relationship
between the goods and/or 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).
The marks
We turn first to the du Pont factor that focuses on the
similarity or dissimilarity of the marks in their entireties
as to appearance, sound, connotation and commercial
impression. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005).
Serial No. 76667082
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Applicant is correct in contending that we must
consider the marks in their entireties. However, in
weighing the confusing similarity of these two marks, our
focus should be placed on the recollection of the average
consumer who normally retains a general rather than a
specific impression of trademarks. Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
As for the appearance of the marks, applicant has
inserted the letter “Y” where registrant has a space. This
does add a third syllable to applicant’s mark, creating a
slightly different sound. As to connotation, the first
portion of both marks is dominated by the idea of “flesh of
hogs,” while the final portion is an identical misspelling
(e.g., “Chewz”) of the category of goods involved herein,
namely, dog “chews.” The commercial impressions of both of
these composite marks draws upon the idea of an edible dog
chew made from pigskin.
On balance, then, we find that applicant’s mark is
similar to registrant’s mark as to appearance and sound, and
that both marks create the same connotations and commercial
impressions. Hence, this critical du Pont factor favors a
finding of likelihood of confusion.
Serial No. 76667082
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The Goods, their Trade Channels and Conditions of Purchase
In its appeal brief, applicant argues as follows:
It is respectfully submitted that the goods
as discussed in the ’387 Registration have
nothing whatsoever to do with edible pig skin
treats in assorted shapes and sizes, for
dogs. The ’387 Registration is for edible
products for dogs having an ingredient of
pork skin which is deconstructed and
reformed with other ingredients in the shape
of bones to be eaten by dogs. Absolutely
none of these goods has anything to do with
a completely different type of pork rind
treats which are whole, intact pieces of
pork rind prepared and cut into appropriate
sizes for dogs. Therefore, even though both
products relate to the general area of dog
treats, it is respectfully submitted that
they are totally different because the
cited ’387 Registration is used
specifically for reconstituted pork-based
bones for dogs that have nothing whatsoever
to do with intact pork rinds.

While applicant’s counsel has made an argument as to
the difference in the goods (e.g., “bones” versus “intact
pork rinds”), this alleged difference is certainly not drawn
from the goods as identified in the application and
registration. In any case, as noted by the Trademark
Examining Attorney, even if the goods are not identical in
formulation and appearance, and even if they should prove
not to be directly competitive products, they are related in
that both are edible treats for dogs, with both products
having their origins in pigskins.
Serial No. 76667082
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We presume both would be marketed through the same
channels of trade, and would be encountered by the same
classes of ordinary purchasers under circumstances that
would give rise to the mistaken belief that the goods come
from a common source. These items are presumably
inexpensive enough that their purchase would not be
subjected to a heightened degree of care.
Accordingly, all of these related du Pont factors
favor the position taken by the Trademark Examining
Attorney.
Conclusion
In view of the confusing similarity of these two marks
and the relatedness of the respective goods – with the
understanding that both identified goods would be marketed
through the same channels of trade to the same classes of
ordinary consumers, we find that applicant’s mark for its
identified goods is likely to cause confusion with the cited
registration.
Decision: We hereby affirm the refusal to register
based upon Section 2(d) of the Lanham Act.