Ramon E. Jaquez

Trademark Trial and Appeal Board

Aug 10, 2005

No. 76581665 (T.T.A.B. Aug. 10, 2005)

Mailed:
10 August 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Ramon E. Jaquez.
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Serial No. 76581665
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Myron Amer of Myron Amer, P.C. for Ramon E. Jaquez.

Tracy L. Fletcher, Trademark Examining Attorney, Law Office
115 (Tomas Vlcek, Managing Attorney).
_______

Before Hairston, Rogers, and Drost, Administrative
Trademark Judges.

Opinion by Drost, Administrative Trademark Judge:

On March 15, 2004, applicant, Ramon E. Jaquez, filed
an application to register the mark CARIBBEAN RED ROCK in
standard character form on the Principal Register for goods
ultimately identified as “bottled fruit flavored water” in
Class 32.1 Applicant has disclaimed the term “Caribbean.”
The examining attorney has refused to register
applicant’s marks under Section 2(d) of the Trademark Act

1 Serial No. 76581665. The application contains a statement that
the mark was first used and first used in commerce on March 12,
2004.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser Nos. 76581665
2
(15 U.S.C. § 1052(d)) because of a prior registration for
the mark RED ROCK in standard character form for “soft
drinks and concentrates for making soft drinks" in Class
32.2 After the examining attorney made the refusal final,
this appeal followed.
When there is a question of likelihood of confusion,
we analyze the facts as they relate to the relevant factors
set out in In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). See also In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973); and Recot, Inc. v. Becton, 214 F.3d 1322, 54
USPQ2d 1894, 1896 (Fed. Cir. 2000). In considering the
evidence of record on these factors, we must 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).
We start by comparing applicant’s and registrant’s
marks as to the “similarity or dissimilarity of the marks
in their entireties as to appearance, sound, connotation,
and commercial impression.” Majestic Distilling, 65 USPQ2d
at 1203. When we compare the marks, “there is nothing

2 Registration No. 2,675,869, issued January 21, 2003.
Ser Nos. 76581665
3
improper in stating that, for rational reasons, more or
less weight has been given to a particular feature of a
mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties. Indeed,
this type of analysis appears to be unavoidable.” In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985).
Registrant’s mark is for the term RED ROCK;
applicant’s mark is CARIBBEAN RED ROCK. Both marks are in
standard character form. Both applicant’s and registrant’s
marks contain the identical words RED ROCK in the same
order. Inasmuch as applicant’s mark otherwise includes
registrant’s mark in its entirety, the only difference is
the presence of the word “Caribbean” in applicant’s mark.
While the term “Caribbean” cannot be ignored, applicant has
disclaimed the term. Disclaimed matter is often “less
significant in creating the mark’s commercial impression.”
In re Code Consultants Inc., 60 USPQ2d 1699, 1702 (TTAB
2001). The term Caribbean would describe beverages
originating from the Caribbean or of a Caribbean type or
style. “Regarding descriptive terms, this court has noted
that the ‘descriptive component of a mark may be given
little weight in reaching a conclusion on the likelihood of
confusion.’” Cunningham v. Laser Golf Corp., 222 F.3d 943,
Ser Nos. 76581665
4
55 USPQ2d 1842, 1846 (Fed. Cir. 2000), quoting, In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed.
Cir. 1985).
Here, both marks include the same term RED ROCK. It
is the only term in registrant’s mark and, as displayed on
applicant’s specimen, it is in larger and thicker type than
the term CARIBBEAN. RED ROCK would be the dominant portion
of both marks.
When we compare the marks in their entireties, we
conclude that they are very similar in sound, appearance,
meaning, and commercial impression. While undoubtedly the
presence of the word “Caribbean” in applicant’s mark is a
difference, it would not significantly change the
pronunciation, appearance, meaning, or commercial
impression of the marks. Both marks would be dominated by
the term RED ROCK and the word CARIBBEAN would likely be
viewed as a term identifying a slightly different or new
product sold under the RED ROCK mark. Thus, the mere
addition of the word “Caribbean” does not create dissimilar
marks. Wella Corp. v. California Concept Corp., 558 F.2d
1019, 194 USPQ 419, 422 (CCPA 1977) (CALIFORNIA CONCEPT and
surfer design likely to be confused with CONCEPT for hair
care products); In re Chatam International Inc., 380 F.3d
1340, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (“With respect
Ser Nos. 76581665
5
to JOSE, the Board correctly observed that the term simply
reinforces the impression that GASPAR is an individual’s
name. Thus, in accord with considerable case law, the JOSE
term does not alter the commercial impression of the mark.”
The marks JOSE GASPAR GOLD and GASPAR’S ALE were determined
to be similar). We also note that if “the dominant portion
of both marks is the same, then confusion may be likely
notwithstanding peripheral differences.” In re Denisi, 225
USPQ 624, 624 (TTAB 1985).
We add that the term RED ROCK does not appear to have
any meaning when used in association with soft drinks or
bottled water and there is no evidence that registrant’s
mark is entitled to only a narrow scope of protection.
Furthermore, we reject applicant’s argument that the
examining attorney has improperly dissected the mark.
Applicant’s own specimen emphasizes the RED ROCK portion of
its mark. In re Nationwide Industries, 6 USPQ2d 1882, 1884
(TTAB 1984) (“Thus, it is settled that evidence of the
context in which a mark is used on labels, packaging,
advertising, etc., is probative of the significance which
the mark is likely to project to purchasers”).3 These

3 The fact that initially the examining attorney notified
applicant of, and subsequently withdrew, a pending application
for the mark CARIBBEAN RED for fresh fruits and vegetables
excluding red fruits and vegetables, when applicant’s goods were
Ser Nos. 76581665
6
factors favor registrant in this likelihood of confusion
determination.
We next look at whether applicant’s and registrant’s
goods are related. Applicant’s goods are bottled fruit
flavored water while registrant’s goods are soft drinks and
concentrates for making soft drinks. We, of course,
consider the goods as they are identified in their
respective identifications of goods. Paula Payne Products
v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76, 77
(CCPA 1973) (“Trademark cases involving the issue of
likelihood of confusion must be decided on the basis of the
respective descriptions of goods”). We also do not read
limitations into the identifications of goods. Squirtco v.
Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir.
1983)(“There is no specific limitation and nothing in the
inherent nature of Squirtco’s mark or goods that restricts
the usage of SQUIRT for balloons to promotion of soft
drinks. The Board, thus, improperly read limitations into
the registration”). For example, registrant’s soft drinks
could include fruit flavored soft drinks. Furthermore, the
term “soft drink” does not exclude non-carbonated soft
drinks. Webster’s English Dictionary for Home, School or

identified simply as “beverages” did not prevent the examining
attorney from also citing the registration of record.
Ser Nos. 76581665
7
Office (2003) (“soft drink – a nonalcoholic drink”); The
Random House Dictionary of the English Language (2d ed.
1987) (unabridged) (“soft drink – a beverage that is not
alcoholic or intoxicating and is usually carbonated, as
root beer or ginger ale”) (emphasis added).4 Therefore, the
goods, which would include applicant’s bottled fruit
flavored water and registrant’s fruit-flavored carbonated
and non-carbonated soft drinks are closely related.
In addition to the inherent nature of the goods, the
examining attorney has submitted other evidence to show the
relationship between the goods. First, the examining
attorney has provided copies of several registrations to
show that the same entity has registered a common mark for
soft drinks and water. In re Infinity Broadcasting Corp.
of Dallas, 60 USPQ2d 1214, 1217-18 (TTAB 2001) (“The
registrations show that entities have registered their
marks for both television and radio broadcasting services.
Although these registrations are not evidence that the
marks shown therein are in use or that the public is
familiar with them, they nevertheless have probative value
to the extent that they serve to suggest that the services

4 We take judicial notice of these definitions. University of
Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594,
596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
Ser Nos. 76581665
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listed therein, including television and radio
broadcasting, are of a kind which may emanate from a single
source. See, e.g., In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993); and In re Mucky Duck
Mustard Co. Inc., 6 USPQ2d 1467, 1470 at n. 6 (TTAB
1988)"). See, e.g., Registration No. 2,837,150 (“fruit-
based soft drinks … flavored drinking water”); No.
2,769,244 (“flavored water, and non-carbonated soft drinks,
namely fruit flavored and fruit based soft drinks and sport
drinks”); No. 2,833,172 (“soft drinks” and “bottled
water”); No. 2,885,112 (“soft drinks” and “flavored
waters”); No. 2,875,637 (“flavored and non-flavored
sparkling water; catenated and non-catenated drinks,
namely, soft drinks, namely, soft drinks with or without
fruit flavoring”); and No. 2,853,674 (“flavored waters” and
“soft drinks”).
Second, the examining attorney introduced printouts
that show that soft drinks and water are advertised as
originating from the same source. For example, the
Adirondack Beverages website indicates that “Adirondack
Beverages has been producing both carbonated and non-
carbonated beverages… We produce a wide array of sodas,
seltzers, mixers, and bottled waters.” The Coca-Cola
website shows both bottled water and cola as originating
Ser Nos. 76581665
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from the same source and the Polar Beverages site pictures
soda, such as birch beer and orange dry, and lists “spring
water” among its other products.
When we consider the nature of applicant’s and
registrant’s goods as well as the evidence that these goods
are associated with a common source, we conclude that the
goods are related. Furthermore, absent restrictions in the
identification, we must assume that the goods travel in
“the normal and usual channels of trade and methods of
distribution.” CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ
198, 199 (Fed. Cir. 1983). See also Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005
(Fed. Cir. 2002); Kangol Ltd. v. KangaRoos U.S.A., 974 F.2d
161, 23 USPQ2d 1945, 1946 (Fed. Cir. 1992). There is no
evidence that these goods are marketed in significantly
different channels of trade or that their prospective
purchasers would be different, and we conclude that the
channels of trade and purchasers would at least overlap.
Prospective purchasers of non-alcoholic beverages could
easily encounter fruit flavored bottled water and soft
drinks, which may be fruit flavored. If these purchasers
see applicant’s CARIBBEAN RED ROCK bottled water and
registrant’s RED ROCK soft drinks, they would likely
Ser Nos. 76581665
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believe that these beverages originate from a common
source, and there would be a likelihood of confusion.
Decision: The examining attorney’s refusal to
register applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.