Redmond, Incorporatedv.The Real Co, Inc.

Trademark Trial and Appeal Board

Jul 24, 2020

92065332 (T.T.A.B. Jul. 24, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 24, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Redmond, Incorporated
v.
The Real Co, Inc.
_____

Cancellation No. 92065332

_____

Gregory M. Hess of Parr Brown Gee & Loveless PC
for Redmond, Incorporated
Ryan M. Kaiser of Kaiser IP, LLC
for The Real Co, Inc.
_____

Before Thurmon, Deputy Chief Administrative Trademark Judge,
Taylor and English, Administrative Trademark Judges.

Opinion by English, Administrative Trademark Judge:
Respondent, The Real Co, Inc., is the owner of Registration No. 4904525 for the
standard character mark THE REAL CO (“CO” disclaimed) registered on the
Principal Register for “rice; salt; sugar” in International Class 30.1

1 Issued February 23, 2016 from an application filed June 15, 2015 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on an allegation of first use and first use in
commerce on August 15, 2014.
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In its petition for cancellation, Petitioner alleges a claim of priority and likelihood
of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on
prior use and registration of the following marks:2
 REAL SALT, in typed format, for “table salt”; “SALT” disclaimed; claim of
acquired distinctiveness in whole under Section 2(f) of the Trademark Act, 15
U.S.C. § 1052(f);3
 for “herb salt; mineral salt for human consumption;
table salt”; “SALT” disclaimed; claim of acquired distinctiveness in whole
under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f);4 and

2 Petitioner also pleaded a dilution claim (1 TTABVUE 8-9, ¶¶ 25-28), but did not argue
dilution in its brief so we deem this claim waived. Knight Textile Corp. v. Jones Inv. Co., 75
USPQ2d 1313, 1314 n.4 (TTAB 2005) (pleaded dilution ground not pursued on brief deemed
waived).
3 Principal Register Registration No. 1876791 issued January 31, 1995 under Section 1(a) of
the Trademark Act, 15 U.S.C. § 1051(a), based on a claim of first use and first use in
commerce on April 1, 1984; twice renewed.
A typed mark is the legal equivalent of a standard character mark. In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012) (explaining that in 2003 there was a
non-substantive change in nomenclature from a “typed mark” to a “standard character
mark”).
4 Principal Register Registration No. 4121956; issued April 3, 2012 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on a claim of first use and first use in commerce
on April 1, 2009; Section 8 accepted; Section 15 acknowledged. The registration includes the
following description of the mark: “The mark consists of a shaded diamond divided in the
middle by a shaded rectangle with a curved bottom containing the words ‘REAL SALT’.” Color
is not claimed as a feature of the mark.
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 IS YOUR SALT REAL?, in standard characters, for “table salt.”5
In its answer, Respondent admits that “some of its products are sold at Vitacost”;
that “its products (or some of them) are sold (or have been sold) on Amazon.com,
Walmart.com and Target.com”; and that “it attends trade shows.”6 Respondent denies
the remaining salient allegations in the petition for cancellation.
For the reasons explained below, we grant the petition for cancellation.
I. The Record and Evidentiary Objections
The record includes Respondent’s involved Registration No. 4904525, by operation
of Trademark Rule 2.122(b)(1), 37 CFR § 2.122(b)(1), and the pleadings.
The parties also introduced the following evidence:
1. Petitioner’s Notice of Reliance on records of the U.S. Patent and
Trademark Office, including exhibits, filed on August 5, 2019;7

5 Principal Register Registration No. 2911065; issued December 14, 2004 from an application
filed December 3, 2003 under Section 1(a) of the Trademark Act, 15 U.S.C.§ 1051(a), based
on a claim of first use and first use in commerce on January 30, 2003; renewed.
6 Answer, 9 TTABVUE 3-4, ¶¶ 12, 13 and 16. Respondent also pleaded “affirmative defenses”
of failure to state a claim, unclean hands, laches, that “Petitioner’s marks (more specifically
the term ‘REAL’ as used in those marks) are weak, and thus, subject to only a narrow scope
of protection,” and that “Petitioner’s marks are not famous.” Id. at 5. Failure to state a claim
is not a true affirmative defense and Respondent did not challenge the sufficiency of
Petitioner’s pleading by motion or at trial. Respondent also did not pursue the affirmative
defenses of unclean hands or laches. Accordingly, we deem these defenses waived. See Harry
Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1422-23 n.7 (TTAB 2014);
Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1752 n.6 (TTAB
2013). Respondent’s allegations that Petitioner’s marks are weak and lack fame are
amplifications of Respondent’s denials of Petitioner’s claim and we treat them as such.
7 33 TTABVUE.
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2. Trial Declaration of Darryl Bosshardt, including exhibits, filed by
Petitioner on August 10, 2019;8
3. Trial Declaration of Kirk Butterfield, including exhibits, filed by
Petitioner on August 10, 2019;9
4. Trial Declaration of Brandon Brooks, including exhibits, filed by
Petitioner on August 16, 2019;10
5. Petitioner’s Notice of Reliance on Printed Publications, including
exhibits, filed on August 16, 2019;11
6. Petitioner’s Notice of Reliance on Interrogatory Responses, including
exhibits, filed on August 19, 2019;12
7. Petitioner’s Second Notice of Reliance on Printed Publications, including
exhibits, filed on August 19, 2019;13
8. Trial Declaration of Belal El-Banna, including exhibits, filed by
Respondent on October 18, 2019;14
9. Respondent’s First Notice of Reliance, including exhibits, filed by
Respondent on October 18, 2019;15
10. Respondent’s Second Notice of Reliance, including exhibits, filed by
Respondent on October 18, 2019;16

8 34 TTABVUE (declaration and exhibits A – E, G, I – J); 35 TTABVUE (confidential exhibits
F and H); 38 TTABVUE (redacted exhibits F and H). Respondent objected to parts of the
Bosshardt Declaration. We resolve those objections below.
9 36 TTABVUE.
10 39 TTABVUE (confidential declaration); 30 TTABVUE (redacted declaration).
11 41 TTABVUE.
12 42 TTABVUE (redacted responses); 43 TTABVUE (confidential responses).
13 44 TTABVUE.
14 45 TTABVUE (redacted declaration); 46 TTABVUE (confidential declaration).
15 47 TTABVUE (third-party trademark registrations).
16 48 TTABVUE (dictionary definitions of “real” and “salt”).
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11. Respondent’s Third, Fourth and Fifth Notices of Reliance, including
exhibits, filed by Respondent on October 18, 2019;17
12. Respondent’s Sixth Notice of Reliance, including exhibits, filed by
Respondent on October 18, 2019;18
13. Respondent’s Seventh Notice of Reliance, including exhibits, filed by
Respondent on October 18, 2019;19
14. Rebuttal Declaration of Jason Nielsen, filed by Petitioner on December
2, 2019;20
15. Rebuttal Declaration of Kirk Butterfield, including exhibits, filed by
Petitioner on December 2, 2019;21 and,
16. Petitioner’s Rebuttal Notice of Reliance, including exhibits, filed on
December 2, 2019.22
Respondent objected to some of the evidence submitted by Petitioner. First,
Respondent objected to paragraph 4 and Exhibit C to the Brooks Declaration on
hearsay grounds. We overrule this objection, because we treat the testimony as
merely referring to the statements in the exhibit and not vouching for the truth of
the matters asserted in the documents found in the exhibit. To the extent the
testimony contains hearsay, we treat it accordingly and give weight only to the non-
hearsay portions of it.
Respondent presents a similar objection to paragraphs 5-11 and Exhibits B-H to
the Bosshardt Declaration. These exhibits are purported to contain market research

17 49, 50, 51 TTABVUE. The evidence submitted with these three Notices is marginally
relevant.
18 52 TTABVUE (Internet evidence showing uses of the word “real” with food).
19 53 TTABVUE (evidence of use and promotion of Petitioner’s REAL SALT mark).
20 54 TTABVUE.
21 55 TTABVUE.
22 56 TTABVUE.
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showing the position of Petitioner’s branded products in certain markets. We agree
with Respondent that these exhibits are hearsay, and Mr. Bosshardt does rely on the
truth of the data presented in the exhibits. No proper foundation was laid
establishing any exception to the hearsay rule, and therefore, we will not consider
these exhibits or any of the Bosshardt testimony based on these exhibits. Mr.
Bosshardt, however, did not rely solely on the data in these exhibits in testifying
about Petitioner’s market position. We discuss this evidence in our analysis below.
Respondent also objects to paragraphs 5-6 and Exhibit B to the Butterfield
Declaration. This evidence relates to an incident that occurred at a trade show.
Petitioner presents one version of the event and Respondent presents another
version. Though this evidence contains some hearsay, the parties do not dispute that
an incident occurred at a trade show involving persons affiliated with each party.
Because both sides have had their say on what happened, we address the substance
of this evidence in our analysis below.
Finally, Respondent objects to Petitioner’s Rebuttal Notice of Reliance because the
document submitted does “not rebut anything that was submitted by Registrant
during its Testimony Period.”23 We agree. This evidence purportedly goes to the
likelihood of confusion, which is part of Petitioner’s case-in-chief, and therefore,
should have been presented during Petitioner’s main testimony period. We strike this
evidence as improper rebuttal. Automedx, Inc. v. Artivent Corp., 95 USPQ2d 1976,
1977 (TTAB 2010) (evidence supporting a party’s case-in-chief is not rebuttal

23 Respondent’s Brief, 60 TTABVUE 43.
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evidence); Western Leather Goods Co. v. Blue Bell, Inc., 178 USPQ 382, 383 (TTAB
1973) (it is improper to submit during rebuttal evidence “that might appropriately
have been introduced during the party’s case-in-chief”).
II. Standing
Standing is a threshold issue that must be proven by the plaintiff in every inter
partes case. Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1061-62 (Fed. Cir. 2014); Lipton Indus., Inc. v. Ralston Purina Co.,
670 F.2d 1024, 213 USPQ 185, 187-89 (CCPA 1982); Bell’s Brewery, Inc. v. Innovation
Brewing, 125 USPQ2d 1340, 1344 (TTAB 2017). To meet the standing requirement,
a plaintiff need only show that it has a real interest, i.e., a personal stake, in the
outcome of the proceeding, and a reasonable basis for believing that it will be
damaged by the registration. See Ritchie v. Simpson, 170 F.3d 1092, 1095, 50
USPQ2d 1023, 1025-26 (Fed. Cir. 1999); Coach Servs., Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1727 (Fed. Cir. 2012). Petitioner’s pleaded
registrations and plausible likelihood of confusion claim are sufficient to establish
Petitioner’s standing to bring this proceeding. Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); L.C. Licensing Inc. v. Berman, 86
USPQ2d 1883, 1887 (TTAB 2008) (standing established by properly making pleaded
registrations of record); Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1285
(TTAB 2007) (standing based on pleaded registration and non-frivolous likelihood of
confusion claim).
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III. Priority and Likelihood of Confusion
To prevail on its Section 2(d) claim, Petitioner must prove priority and likelihood
of confusion by a preponderance of the evidence. Cunningham, 55 USPQ2d at 1844;
Hydro-Dynamics Inc. v. George Putnam & Co., 811 F.2d 147, 1 USPQ2d 1772, 1773
(Fed. Cir. 1987).
A. Priority
The filing dates of the applications that matured into Petitioner’s pleaded
registrations precede the June 15, 2015 filing date of the application that matured
into Respondent’s challenged registration, and Respondent has not established any
prior use of its mark. Accordingly, Petitioner has priority for the marks and goods
subject to its pleaded registrations. See, e.g., Calypso Tech. Inc. v. Calypso Capital
Mngt. LP, 100 USPQ2d 1213, 1219-20 (TTAB 2011) (petitioner’s priority established
based on filing date of the underlying application which matured into its pleaded
registration).
B. Likelihood of Confusion
We focus our analysis on whether there is a likelihood of confusion between
Respondent’s mark and Petitioner’s typed mark REAL SALT (“Petitioner’s Mark” or
“Petitioner’s Registration”) because if there is no likelihood of confusion between
these marks then Respondent’s mark is not likely to be confused with Petitioner’s
other pleaded marks, which include additional points of difference. See Sock It To Me,
Inc. v. Aiping Fan, 2020 USPQ2d 10611, *6 (TTAB 2020) (confining 2(d) analysis to
Cancellation No. 92065332
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most similar pleaded mark); Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB
2010) (same).
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on a likelihood of confusion. In re E. I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“Du Pont”); see
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003). We consider each Du Pont factor for which there is evidence and argument.
See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir.
2019); M2 Software, Inc. v. M2 Commc’ns., Inc., 450 F.3d 1378, 78 USPQ2d 1944,
1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232,
1242 (TTAB 2015) (“While we have considered each factor for which we have
evidence, we focus our analysis on those factors we find to be relevant.”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The
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.”). We
discuss these factors, and the other relevant Du Pont factors below.
1. Similarity or Dissimilarity of the Goods
We must base our comparison of the goods on the identifications in Respondent’s
registration and Petitioner’s Registration. See Stone Lion Capital Partners, LP v.
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Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom
Sys., Inc. v. Houston Comput. Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990). It is sufficient for a finding of likelihood of confusion if relatedness is
established for any item encompassed in the identification of goods or services in a
particular class. Tuxedo Monopoly, Inc. v. General Mills Fun Grp., 648 F.2d 1335, 209
USPQ 986, 988 (CCPA 1981); Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d
377409, *6 (TTAB 2019); In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB
2015).
Respondent has registered its mark for “salt,” which encompasses “table salt”
covered by Petitioner’s Registration. See In re Hughes Furniture Indus., Inc., 114
USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of
‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and
commercial furniture.’”). Accordingly, the goods are in part legally identical, which
weighs heavily in support of a likelihood of confusion.
2. Similarity or Dissimilarity of the Trade Channels and Classes of
Consumers

Because the goods are in part legally identical and there are no restrictions or
limitations in the registrations, we must presume that the channels of trade and
classes of purchasers for the parties’ legally identical goods are the same. See Cai v.
Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018); In re
Viterra Inc., 101 USPQ2d at 1908 (legally identical goods are presumed to travel in
same channels of trade to same class of purchasers); In re Yawata Iron & Steel Co.,
403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical
Cancellation No. 92065332
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goods, the channels of trade and classes of purchasers are considered to be the same).
These factors also weigh heavily in favor of likelihood of confusion.
3. Sophistication of the Purchasers
Respondent argues that the sophistication of the purchasers and the different
price points of the parties’ products obviate any likelihood of confusion. Specifically,
Respondent asserts that its “consumers are sophisticated, educated purchasers who
… read labels carefully and ma[k]e informed decisions about the products they
purchase and put in their bodies” and that “many of Petitioner’s customers (i.e. food
wholesalers, food retailers, and food brokers) are in fact quite sophisticated about
food products and brands.”24 Respondent further argues that “Petitioner’s products
and [Respondent’s] products are sold at vastly different retail price-points,” e.g.
$10.19 for Petitioner’s 26 oz. pouch of salt v. $40.11 for Respondent’s 20 oz.25 These
arguments are unavailing because the parties’ registrations do not include
restrictions on the classes of purchasers or prices of the products. In re Fabfitfun, Inc.,
127 USPQ2d 1670, 1673 (TTAB 2018) (no price restrictions in identifications of
goods); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986) (evidence
that relevant goods are expensive wines sold to discriminating purchasers must be
disregarded given the absence of any such restrictions in the application or
registration).

24 Respondent’s Brief, 60 TTABVUE 9, 14 and 35-36; see also El-Banna Declaration, ¶ 14 at
45 TTABVUE 5.
25 Respondent’s Brief, 60 TTABVUE 9 and 36.
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We must make our determination based on the least sophisticated consumer, who
is an ordinary consumer. Stone Lion, 110 USPQ2d at 1163 (affirming that the Board
properly considered all potential investors for recited services, which included
sophisticated investors, but that precedent requires consumer care for likelihood-of-
confusion decision to be based “on the least sophisticated potential purchasers”).
Accordingly, while some consumers may exercise care in purchasing specialty salt,
the evidence does not establish that this true for all relevant consumers. Salt is a
staple, relatively inexpensive food seasoning,26 subject to frequent replacement.
“Purchasers of such products have long been held to a lesser standard of purchasing
care.” In re Martin’s Famous Pastry Shoppe, Inc., 223 USPQ 1289, 1290 (Fed. Cir.
1984) (“Bread and cheese are staple, relatively inexpensive comestibles, subject to
frequent replacement. Purchasers of such products have long been held to a lesser
standard of purchasing care.”); see also Kimberly-Clark Corp. v. H. Douglas Enters.,
Ltd., 774 F.2d 1144, 227 USPQ 541, 542 (Fed. Cir. 1985) (purchasers of “relatively
inexpensive and frequently replaceable … products have long been held to a lesser
standard of purchasing care”).
For these reasons, the sophistication of the purchasers is neutral or, at most,
slightly favors Petitioner.

26 The record shows a number of salt products listed for sale in the range of $2-10, including
Petitioner’s and Respondent’s salt products. See Bosshardt Declaration, Ex. A at 34
TTABVUE 7-25; Butterfield Declaration, Ex. A at 36 TTABVUE 8-13, 17-18, 20-21 and 23;
41 TTABVUE 136, 146 and 172-173; and 44 TTABVUE 9-10, 15-16, 18-19 and 23.
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4. Strength of Petitioner’s Mark
We next assess the strength of Petitioner’s Mark because the strength of the mark
affects its scope of protection. The fifth Du Pont factor, the fame of the prior mark,
and the sixth Du Pont factor, the number and nature of similar marks in use for
similar goods, Du Pont, 177 USPQ at 567, may be considered in tandem to determine
the strength of Petitioner’s Mark and the scope of protection to which it is entitled.
Bell’s Brewery, 125 USPQ2d at 1345. “In determining strength of a mark, we consider
both inherent strength, based on the nature of the mark itself, and commercial
strength or recognition.” Id. at 1345 (citing Couch/Braunsdorf Affinity, Inc. v. 12
Interactive, LLC, 110 USPQ2d 1458, 1476 (TTAB 2014)); see also In re Chippendales
USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength
is measured both by its conceptual strength (distinctiveness) and its marketplace
strength (secondary meaning).”).
In determining the conceptual strength of the Petitioner’s Mark, “we evaluate its
intrinsic nature, that is, where it lies along the generic-descriptive-suggestive-
arbitrary (or fanciful) continuum of words.” In re Davia, 110 USPQ2d 1810, 1815
(TTAB 2014). “Marks that are descriptive or highly suggestive are entitled to a
narrower scope of protection, i.e., are less likely to generate confusion over source
identification, than their more fanciful counterparts.” Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015). Petitioner’s
Registration issued based on a claim acquired distinctiveness under Section 2(f) of
the Trademark Act, 15 U.S.C. § 1052(f), and with a disclaimer of the generic term
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“salt.” Accordingly, there is no dispute that the mark is not inherently distinctive.
Yamaha Int’l Corp. v. Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1005
(Fed. Cir. 1988); see also Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586
F.3d 1352, 92 USPQ2d 1626, 1629 (Fed. Cir. 2009).
The record shows that the term “REAL,” defined as “not artificial ,”27 carries a
highly descriptive connotation for food products that are natural or unrefined. This
is the connotation of the term “REAL” in Petitioner’s Mark as Petitioner’s table salt
is consistently touted as “natural” or “unrefined.” Sock It To Me, Inc., 2020 USPQ2d
10611 at *10 (recognizing that the manner in which a mark is displayed may be
pertinent to how consumers perceive it). By way of example, the descriptors
“unrefined” and “all natural” appear on Petitioner’s REAL SALT packaging,28 and
Petitioner promotes its salt on its website by touting that: “Real Salt is an all-natural
sea salt that comes from our underground all natural salt deposit in Central Utah.
The deposit was left there by a pristine ancient sea that covered much of North
American millions of years ago…. Real Salt comes from an ancient sea bed,
unadulterated by pollutants found in modern day seas.”29
The record also includes examples of third parties using the phrase “real food” to
describe natural, unrefined food. By way of example, 100daysofrealfood.com defines

27 We take judicial notice of this definition. Merriam-Webster online dictionary, last visited
July 16, 2020 at https://www.merriam-webster.com/dictionary/real. The Board may take
judicial notice of online dictionaries that exist in printed format or have regular fixed
editions. In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.23 (TTAB 2013).
28 41 TTABVUE 24; 44 TTABVUE 9 and 18; 53 TTABVUE 6.
29 44 TTABVUE 7.
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the qualities of “real food,” as “Food in its most natural state”; “whole” and “raw”
food.30
Also, Respondent introduced a number of use-based registrations issued to
different third-parties for REAL-formative marks for food products, including salt.
“[T]hird-party registrations may be probative of conceptual strength or weakness as
they ‘may be considered to demonstrate the meaning of a word which comprises the
mark, or a portion thereof, to show that there is a well-known and commonly
understood meaning of that word and that the mark has been chosen to convey that
meaning. … The conclusion to be drawn in such a case is that there is an inherent
weakness in a mark comprised in whole or in part of the word in question and that,
therefore, the question of likelihood of confusion is colored by that weakness to the
extent that only slight differences in the marks may be sufficient to distinguish one
from the other.’” Sock It To Me, Inc., 2020 USPQ2d 10611 at *9 (quoting In re Melville
Corp., 18 USPQ2d 1386, 1388 (TTAB 1991); see also Juice Generation, 115 USPQ2d
at 1675 (“Third party registrations are relevant to prove that some segment of the
composite marks which both contesting parties use has a normally understood and
well-recognized descriptive or suggestive meaning, leading to the conclusion that that
segment is relatively weak.”).31

30 52 TTABVUE 6-7.
31 Respondent also submitted the first 50 results from a search of the USPTO’s Trademark
Electronic Search System (“TESS”) database for REAL-formative marks in International
Class 30, but these search results have limited probative value because they do not list the
specific goods covered by the registrations. 47 TTABVUE 201-202. In addition, Mr. El-Banna
attached to his declaration a commercial trademark search report generated by a third-party
prior to March 2015. El-Banna Declaration, ¶ 4 and Exhibit A, 45 TTTABVUE 2-3 and 8-98.
The report contains the results of a federal trademark search, website searches, and a
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Here, the third-party registrations reflect that the term “REAL” has different
meanings for food products depending on the mark in its entirety. In some marks,
“REAL” primarily connotes “authentic” food, e.g. REAL GUYANESE (“GUYANESE”
disclaimed), REAL GUYANA (“GUYANA” disclaimed), REAL INDIA (“INDIA”
disclaimed), and REAL TASTE OF HOMELAND & Design all for various seasonings,
spices and condiments.32 In others, it describes an “original” product, e.g. THE REAL
SOFT PRETZEL (Stylized) (“SOFT PRETZEL” disclaimed) for “soft pretzels” and
THE REAL ONE for “dough-enrobed food.”33 The third-party registrations below
demonstrate that the term “REAL” also may connote a “natural” or “unrefined” food
product as in Petitioner’s Mark.34
REG. NO. MARK GOODS35
Principal Reg.
No. 4900737

Salt; spices; sugar

company name search. “The trademark search report is not credible evidence of the third-
party uses or registrations listed in the report.” Centraz Indus., Inc. v. Spartan Chemical Co.,
Inc., 77 USPQ2d 1698, 1701 (TTAB 2006); see also 2 J. McCarthy, MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 11:59 (5th ed. 2019) (“A trademark search report,
in addition to being hearsay evidence, has been held incompetent to prove either registration
or use of third party marks.”). In addition, the company name listings do not establish use of
those names and there is no evidence that the websites are still active or the extent of
consumer exposure to the websites.
32 47 TTABVUE 30-38; 42-45; 51-59; 64-69; 75-79.
33 Id. at 157-167.
34 Id. at 9-29; 60-64; 70-74; 80-84; 89-106; 119-122; 130-138; 150-156; and 168-172. Some
marks may connote more than one of these meanings.
35 We have abbreviated the listings of some of the goods.
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REG. NO. MARK GOODS35
Principal Reg.
No. 5306753

(“REAL FOOD” disclaimed)

Salt; spices; sauces
Principal Reg.
No. 4496971

REAL FOODS (“FOODS”
disclaimed; 2(f) in whole)
Seasoned coating for meat,
fish or poultry; condiments,
namely, relish, ketchup,
mustard, mayonnaise; salsa;
barbecue sauce; marinades

Supplemental
Reg. No. 5477501
REAL RAW HONEY (“HONEY”
disclaimed)

Honey; sugar; treacle
Principal Reg.
No. 5201062
REAL DELIGHT FROM
REAL INGREDIENTS
Donut sugar
Principal Reg.
No. 4356810

(“REAL FOOD” disclaimed)

Natural sweeteners
Principal Reg.
No. 4041874
REAL FOOD – IS GOOD Flour; Flour for food
Principal Reg.
No. 4566150
QUINUA REAL
(“QUINUA” disclaimed; 2(f) in
whole)

Flour made from quinoa
Principal Reg.
No. 5796142
REAL FOOD FROM THE
GROUND UP (“FOOD”
disclaimed)

Snack foods
Supplemental
Reg. No. 4891324
THIS IS REAL FOOD FOR
BABIES.
Prepared meals
Cancellation No. 92065332
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REG. NO. MARK GOODS35
Supplemental
Reg. No. 4883303
HANDMADE REAL FOODS
(“FOODS” disclaimed)
Prepared entrees and
prepackaged dinners,
appetizers and side dishes

Principal Reg.
No. 4671860
REAL FOOD TASTES BETTER Snack foods, including
organic granola-based snack
bars; packaged and prepared
foods

Principal Reg.
No. 4458603
REAL WRAPS (“WRAPS”
disclaimed; 2(f) in whole)
Prepared goods, namely,
burritos and tortilla wrap
sandwiches

Principal Reg.
No. 4444662
REAL MEDLEYS (“MEDLEYS”
disclaimed)

Grain-based food bars
Principal Reg.
No. 3750681
SIMPLY REAL (“REAL”
disclaimed)
Fruit-based organic food bars
containing whole food
ingredients

Respondent’s mark is closer to Petitioner’s Mark than any of the third -party
registered marks. The two marks for salt, and , each
include other distinctive matter,36 and the registration for the most similar mark,
REAL FOODS, does not cover salt. Still, the third-party registrations above
corroborate that the term “REAL” has a recognized meaning in the food industry as
referring to unrefined, natural food.
“The Board must determine ‘how the average purchaser would encounter the
mark under normal marketing of such goods and also … what the reaction of the

36 In addition to the crown design in the mark LA REAL, we take judicial notice that the term
“la” means “the” in Spanish. Collins Online Spanish-English Dictionary, last visited July 16,
2020 at https://www.collinsdictionary.com/dictionary/spanish-english/la.
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average purchaser would be to this display of the mark.’” Dena Corp. v. Belvedere
Int’l, Inc., 950 F.2d 1555, 21 USPQ2d 1047, 1052 (Fed. Cir. 1991) (quoting In re Magic
Muffler Serv., 184 USPQ 125, 126 (TTAB 1974)). The record supports that consumers
encountering Petitioner’s Mark are likely to perceive it as referring to the natural
and unrefined nature of Petitioner’s table salt. Accordingly, we find that Petitioner’s
Mark is conceptually weak.
We now turn to the commercial strength of the mark, which also “varies along a
spectrum from very strong to very weak.” Joseph Phelps Vineyards, LLC v. Fairmont
Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017). Under the
sixth DuPont factor, “evidence of third-party use of similar marks on similar goods
‘can show that customers have been educated to distinguish between different marks
on the basis of minute distinctions.”’ Jack Wolfskin Ausrustung Fur Draussen GmbH
& Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129,
1136 (Fed. Cir. 2015) (quoting Juice Generation, 115 USPQ2d at 1674)). The third-
party registrations Respondent submitted “are not evidence that the registered
marks are in use on a commercial scale, let alone that consumers have become so
accustomed to seeing them in the marketplace that they have learned to distinguish
among them by minor differences.” In re Morinaga Nyugyo Kabushiki Kaisha, 120
USPQ2d 1738, 1745 (TTAB 2016); see also Sock It To Me, Inc., 202 USPQ2d 10611 at
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*9. The record, however, includes some examples of third-party use of “real” marks
for salt and condiments:37
 THE REAL FOOD sea salt;
 HELLMAN’S REAL mayonnaise;
 BEST FOODS REAL mayonnaise;
 BEST FOODS REAL ketchup; and
 JULIE’S REAL coconut vanilla bean cashew butter.
The third-party uses are not so “ubiquitous” or “considerable” that we can conclude
that customers have been conditioned to distinguish between different REAL-
formative marks for salt and other seasonings and condiments. See In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017)
(evidence of third-party use “falls short of the ‘ubiquitous’ or ‘considerable’ use of the
mark components present in [applicant’s] cited cases”); Jack Wolfskin, 116 USPQ2d
at 1136 (discussing “voluminous evidence” of registration and use of paw print design
elements); Juice Generation, 115 USPQ2d at 1674 & n.1 (referring to evidence of “a
considerable number,” 26 third-party marks).
Moreover, although the record does not demonstrate how long the third-party
products have been on the market and the extent to which consumers have been
exposed to them, they are listed for sale by the online retailers Amazon and Walmart.
Cf. Rocket Trademarks Pty. Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1072 (TTAB 2011)

37 41 TTABVUE 117, 141-142, 145, and 148-149. Respondent did not point to this evidence,
but admissible evidence may be relied on for any proper purpose. Trademark Rule 2.122(a),
37 C.F.R. § 2.122(a); see also Nazon v. Ghiorse, 119 USPQ2d 1178, 1181 n.6 (TTAB 2016).
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(internet printouts “on their face, show that the public may have been exposed to
those internet websites and therefore may be aware of the advertisements contained
therein”). While mayonnaise, ketchup, and cashew butter are specifically different
products from salt, they are condiments and, therefore, the marks for these goods are
relevant.38 Although there are only five uses, as noted, the products are sold by
extremely large online retailers. We thus find that the third-party uses demonstrate
some commercial weakness of Petitioner’s Mark.
Commercial strength also may be measured indirectly by the volume of sales and
advertising expenditures of the goods and services at issue, the length of time the
mark has been in use, widespread critical assessments and notice by independent
sources of the goods and services identified by the mark as well as the general
reputation of the goods and services. Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d
1367, 63 USPQ2d 1303, 1305 (Fed. Cir. 2002) (recognizing that strength of a mark
may be measured by sales and advertising figures); Weider Publ’ns, LLC v. D &D
Beauty Care Co., 109 USPQ2d 1347, 1354 (TTAB 2014) (same).
Petitioner has been using the mark REAL SALT for “table salt” since at least as
early as April 1, 1984 and sells its goods throughout the United States through brick-
and-mortar retailers and online retailers such as Amazon, Walmart, and Ebay.39
Petitioner’s sales from 1993 to June 30, 2019 have generally increased year to year

38 We take judicial notice that “A condiment is a substance such as salt, pepper, or mustard
that you add to food when you eat it in order to improve the flavor”; also “a seasoning or relish
for food such as pepper, mustard, sauces, etc.” Collins Online Dictionary, last visited July 16,
2020 at https://www.collinsdictionary.com/us/dictionary/english/condiment.
39 Bosshardt Declaration, ¶¶ 2 and 4, 34 TTABVUE 2-3.
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and are significant.40 In addition, Mr. Bosshardt, a member of the executive team of
Redmond Trading Company, L.C., a company owned and controlled by Petitioner,
testified that “since 2005 and continuing to the present, the REAL SALT brand of
table salt has been the number 1 selling brand of table salt in the United States
Natural Foods Market and, since 2005 to the present, has had the largest share of
that market, by dollar volume.”41 This evidence suggests that Petitioner has achieved
some brand recognition, but it is uncertain whether such recognition is for
Petitioner’s word mark REAL SALT, as opposed to the REAL SALT logo consistently
used on Petitioner’s product packaging:

Mr. Bosshardt also testified that Petitioner “markets, promotes, offers, sells, and
distributes its REAL SALT brand table salt products to distributors, brokers,
retailers, and e-tailers by numerous means, including product advertisements,
product catalogues and price sheets, trade show presentations, buyer meetings, in
person store visits and presentations, telephone calls, websites and Internet

40 We discuss Petitioner’s sales figures in general terms because this information is
confidential and has been filed under seal at 39 TTABVUE.
Respondent argues that Petitioner’s sales figures include sales outside the United States,
but Mr. Brooks, COO of Redmond Life, a company owned and controlled by Petitioner, has
testified that Petitioner’s “International sales of REAL SALT brand table salt products are
only a small fraction of its overall sales of REAL SALT brand products.” Brooks Declaration
¶ 4, 40 TTABVUE 3.
41 Bosshardt Declaration, ¶ 5, 34 TTABVUE 3.
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marketing, industry publications, social media marketing, blog posts, radio shows,
product samples and placement, and email[.].”42 There are, however, no details about
the extent or frequency of such advertising and promotional efforts. Nor has
Petitioner submitted evidence of any advertising expenditures. The evidence of third-
party blogs, online articles, customer reviews and print publications mentioning
Petitioner’s REAL SALT product are not quantitatively significant. Moreover, public
exposure to the online blogs and articles is unknown, the print articles are old, dating
from 1989 to 2011, and the circulation of at least 4 of the print publications is local to
Utah, where Petitioner is located.43
On balance, even if Petitioner’s long use and significant sales support some
measure of brand recognition in the REAL SALT word mark (as opposed to the REAL
SALT logo), there is little evidence on this point and it is counter-balanced by the
noted third-party uses, which evidence some commercial weakness.
In addition, as addressed above, Petitioner’s Mark is conceptually weak for
Petitioner’s natural and unrefined table salt. Accordingly, Petitioner’s Mark is
entitled to a limited scope of protection. Nonetheless, even weak marks are entitled
to protection against registration of similar marks (as more fully discussed below) for
identical goods. See In re Max Capital Grp. Ltd., 93 USPQ2d at 1246; see also In re
Clorox Co., 578 F.2d 305, 198 USPQ 337, 341 (CCPA 1978) (ERASE for a laundry soil
and stain remover held confusingly similar to STAIN ERASER, registered on the

42 Bosshardt Declaration ¶ 3, 32 TTABVUE 2-3.
43 Id. at ¶ 12 and Exhibit J, 34 TTABVUE 4-5 and 51-76; 41 TTABVUE 6-104.
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Supplemental Register, for stain remover); King Candy Co. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974) (“Confusion is confusion. The
likelihood thereof is to be avoided, as much between ‘weak’ marks as between ‘strong’
marks, or as between a ‘weak’ and a ‘strong’ mark.”); In re Chica Inc., 84 USPQ2d
1845, 1850 (TTAB 2007); In re Colonial Stores, Inc., 216 USPQ 793, 795 (TTAB 1982).
5. Similarity or Dissimilarity Between the Marks
We next consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. Stone Lion, 110
USPQ2d at 1160; Du Pont, 177 USPQ at 567. The issue 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. Coach Servs. Inc., 101 USPQ2d at 1721. The focus is on the recollection of the
average purchaser, who normally retains a general rather than specific impression of
trademarks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ
39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). We do not
predicate our analysis on a dissection of the involved marks; we consider the marks
in their entireties. Stone Lion, 110 USPQ2d at 1160; Franklin Mint Corp. v. Master
Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a
mark should not be dissected and considered piecemeal; rather, it must be considered
as a whole in determining likelihood of confusion.”).
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We also are mindful that where, as here, the goods are identical, the degree of
similarity necessary to find likelihood of confusion need not be as great as where there
is a recognizable disparity between the goods. Coach Servs., Inc., 101 USPQ2d at
1721; Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d
1698, 1700 (Fed. Cir. 1992); Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1108
(TTAB 2007).
The one term common to both marks, “REAL,” is highly descriptive of “natural” or
“unrefined” food products, and both marks engender this descriptive meaning. Often
when the only shared portion of two marks is inherently weak, other differences will
be sufficient to distinguish the marks. Cf. American Lebanese Syrian Associated
Charites, Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1031 (TTAB 2011)
(where the common element in the marks is highly suggestive, the additional matter
in the marks may serve to distinguish the marks). The definite article “the” and the
entity abbreviation “co”44 in Respondent’s mark create some obvious differences
between the marks in appearance and sound. Respondent’s mark is three terms and
five syllables as consumers are likely to pronounce the abbreviation “co” as
“company.” In contrast, Petitioner’s Mark consists of two, four-letter, one-syllable
words. Despite these differences, however, both marks retain the meaning of
“natural” and “unrefined” food.

44 The letters “CO” appear without punctuation, but based on the syntax of the mark,
consumers are likely to perceive “CO” as short for “company.” Indeed, while we recognize that
consumer perception is not controlled by how a trademark owner intends its mark to be
perceived, Respondent’s CEO, Mr. El-Banna, testified that “CO” in Respondent’s mark “is
short for ‘Company’.” El-Banna Declaration, ¶ 13, 45 TTABVUE 5.
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In this way, the facts here are different from those in In re Bed & Breakfast
Registry, 791 F.2d 157, 229 USPQ 818 (Fed. Cir. 1986) where the Federal Circuit
found no likelihood of confusion between the marks BED & BREAKFAST REGISTRY
for lodging reservation services and BED & BREAKFAST INTERNATIONAL for
room booking agency services. The Federal Circuit determined that because “bed &
breakfast” was descriptive of the parties’ services, consumers were “more likely to
rely on the non-common portion of each mark, e.g. ‘registry’ vs. ‘international,’ to
distinguish among similar services.” Id. at 819. The court concluded that the marks
were different in appearance, sound and meaning: “The words ‘registry’ and
‘international’ do not have the same meaning either alone or in combination with the
term ‘bed and breakfast.’… The word ‘registry’ has not been shown to have either
international or national connotations, and the mark BED & BREAKFAST
REGISTRY conveys no information of geographic scope.” Id. Here, the marks are
similar in commercial impression. Respondent’s mark connotes a company that
produces natural and unrefined food and Petitioner’s Mark connotes a natural and
unrefined food product, specifically salt.
Ultimately, we find that given the very similar commercial impressions conveyed
by both marks in their entireties, when consumers familiar with Petitioner’s REAL
SALT product are confronted with salt identified by Respondent’s mark THE REAL
CO they are likely to believe that they are variant marks identifying companion
products emanating from the same source. The factor of similarity of the marks
accordingly weighs in favor of a finding of likelihood of confusion.
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6. Actual Confusion
The seventh and eighth Du Pont factors are “[t]he nature and extent of any actual
confusion” and “[t]he length of time during and the conditions under which there has
been concurrent use without evidence of actual confusion.” Du Pont, 177 USPQ at
567. With respect to the seventh Du Pont factor, Kirk Butterfield, a sales associate
for a wholly-owned subsidiary of Petitioner has recounted an incident that occurred
at the January 23, 2017 Fancy Food trade show in San Francisco, California, attended
by both parties. Mr. Butterfield testified that during the trade show he and other
representatives for Petitioner spoke with Respondent’s representatives and that “one
of the representatives … indicated that people have asked them if their product is
‘Redmond Real Salt’ or ‘Real Salt from Utah.”45 Attached to Mr. Butterfield’s
declaration is a “memorandum to file” that Mr. Butterfield and two Redmond
employees prepared about such conversations stating that:46 (1) the wife of one of
Respondent’s owners, “Mohamad,”47 approached Petitioner’s booth and informed
them that “people” have asked Respondent “if their product is Real Salt from Utah”
and when this happens Respondent “refer[s] them to [Petitioner’s] booth to let them
know that it is a different product”; and (2) two of Petitioner’s employees visited
Respondent’s booth and spoke with Belal El-Banna, CEO of Respondent, who told
them that “when customers ask if [Respondent’s product] is Redmond Real Salt, he
refers them to [Petitioner.]”48
However, Mr. El-Banna testified: (1) that the woman referred to in the
memorandum “was not an employee of The Real Co, but rather an employee’s spouse
Cancellation No. 92065332
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assisting [Respondent] in staffing our booth because we were short-handed”; (2) I told
Petitioner’s representatives that “if any customer ever asked if our salt was
Redmond’s salt, we would direct them to Redmond”; and (3) “[i]n the five-plus years
that The Real Co. has been selling salt, rice, and sugar under our THE REAL CO
brand, I have never witnessed nor been made aware of any consumer, distributor, or
retailer ever being confused as to whether there was an association between The Real
Co. and Redmond. I’ve seen no indication that our use of THE REAL CO as a brand
name for our rice, sugar, and salt products has caused any confusion with Redmond’s
REAL SALT mark.”49
The disagreement as to what was said at the trade show highlights the
problematic nature of hearsay evidence. Mr. El-Banna has testified, under oath, that
he’s never been made aware of any instances of actual consumer confusion. We find
this testimony credible as well as Mr. El-Banna’s explanation that he merely advised
Petitioner’s representatives what Respondent would do if there were any instances
of actual confusion. As to the alleged actual confusion reported by the wife of one of
Respondent’s representatives, “without direct testimony from supposedly confused
individuals, there is insufficient evidence to ascertain what they were thinking, or

45 36 TTABVUE 3, ¶ 5.
46 In his declaration, Mr. Butterfield testified that he created the memorandum with three
other employees, but the memorandum lists only three authors, including Mr. Butterfield.
Id. and Exhibit B at 25-26.
47 In the memorandum, this name is also spelled as “Mohammad.” Id. at 26.
48 Id. at 3 and 25-26, ¶ 5 and Exhibit B.
49 El-Banna Declaration, ¶¶ 11-12, 45 TTABVUE 4.
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whether they were actually confused.” Double Coin Holdings, 2019 USPQ2d 377409
at *8; see also Georgia-Pacific Corp. v. Great Plains Bag Co., 614 F.2d 757, 204 USPQ
697, 701 (CCPA 1980) (“Actual confusion is entitled to great weight but only if
properly proven … Such is not the case here.”).
Turning to the eighth Du Pont factor, the parties’ marks have been in concurrent
use since 201450 and Petitioner acknowledges that there has been an opportunity for
actual confusion due to the overlap in trade channels.51 But Respondent’s sales from
January 1, 2016 to March 1, 2019 were a small percentage of Petitioner’s sales over
the same time period suggesting that the opportunity for confusion has not been
significant.52 Moreover, proof of actual confusion is not necessary to establish a
likelihood of confusion. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d
1047, 1053 (Fed. Cir. 2018); Weiss Assocs. Inc. v. HRL Assocs. Inc. 902 F.2d 1546, 14
USPQ2d 1840, 1842-43 (Fed. Cir. 1990); Double Coin Holdings, 2019 USPQ2d 377409
at *8.
For these reasons, we find that the seventh and eighth Du Pont factors are
neutral.

50 Brooks Declaration, ¶ 3, 40 TTABVUE 3; El-Banna Declaration, ¶¶ 3 and 5, 45 TTABVUE
2-3.
51 Brooks Declaration, ¶ 7, 40 TTABVUE 3; see also Butterfield Declaration, ¶ 4, 36
TTABVUE 2-3.
52 Respondent’s sales were less than 10% of Petitioner’s sales over the relevant time period.
The parties’ sales figures are filed under seal at 39 TTABVUE and 46 TTABVUE. We
acknowledge that Petitioner’s sales include international sales, but as noted in footnote 40
above, Mr. Brooks has testified that international sales of the REAL SALT product are only
a “small fraction” of Petitioner’s sales.
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7. Balancing the Factors
The parties’ goods, trade channels and classes of consumers are in part identical
and otherwise overlap. Although the common portion of the marks is entitled to a
limited scope of protection and there are differences between the marks in overall
appearance and sound, the connotation and commercial impression of both
Respondent’s mark THE REAL CO and Petitioner’s Mark REAL SALT is that of
natural, unrefined food. Accordingly, we find that Respondent’s mark is likely to
cause confusion with Petitioner’s Mark. In reaching this conclusion, we bear in mind
that Respondent, as the subsequent user, had an obligation to select a mark that
avoided confusion with existing marks. See Bridgestone Ams. Tire Operations LLC v.
Federal Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1063 (Fed. Cir. 2012) (citing
Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1003
(Fed. Cir. 2002) (“This court resolves doubts about the likelihood of confusion against
the newcomer because the newcomer has the opportunity and the obligation to avoid
confusion with existing marks.”)); Planters Nut & Chocolate Co. v. Crown Nut Co.,
305 F.2d 916, 134 USPQ 504, 511 (CCPA 1962) (“[A]ll doubt as to whether confusion,
mistake, or deception is likely is to be resolved against the newcomer.”).
IV. Conclusion
Petitioner has proven its standing and claim of priority and likelihood of confusion
Decision: The petition to cancel Registration No. 4904525 is granted. The
registration will be cancelled in due course.

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Opinion by Thurmon, Deputy Chief Administrative Trademark Judge, dissenting:
I dissent because Petitioner has not carried its burden of proving a likelihood of
confusion. The majority finds the case close and notes that doubts as to the likelihood
of confusion should be resolved against the junior party. While correct, it is also true
that Petitioner bears the burden of proof and unless that burden has been met, we
must deny the petition. The evidence of record, in my view, shows that consumers
will easily distinguish between the parties’ marks. The only similarity is the word
“real,” which is used in a highly descriptive manner in both marks. Consumers who
understand that both marks are used with real salt are not confused as to source.
The majority’s analysis is solid and I agree with most of it. I join the majority in
finding that Petitioner’s REAL SALT mark is very weak. I would add two factual
observations to the majority’s discussion of this issue. First, in its own advertising,
Petitioner states, “Real Salt is real, authentic salt. Unrefined, full of flavor and
naturally-occurring minerals, Real Salt is salt exactly as nature made it.”53 This text
from Petitioner’s website tells the world that “REAL SALT is real … salt.” The second
point I would add is that one of Petitioner’s asserted marks is the phrase “Is Your
Salt Real?”, which again emphasizes the normal, descriptive use of the word “real”.
It is difficult to imagine a less distinctive trademark than REAL SALT for real
salt. Salt is generic, leaving only the word “real” to distinguish Petitioner’s mark from
other marks used on real salt. The evidence shows that consumers know what “real”
means. It follows, therefore, that consumers know what real salt is. At best for

53 36 TTABVUE 10, 11, 12.
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Petitioner, the REAL SALT mark is exceedingly descriptive, as it identifies a category
of salt. Only use of a nearly identical mark on identical goods would cause confusion.
The marks, however, are not nearly identical. The marks share the word “real,”
but that only tells consumers that both parties sell real salt. The evidence
overwhelmingly supports that conclusion. Almost all the marketing evidence
Petitioner submitted touts the fact that its salt is real. Shared use of such a highly
descriptive word is not likely to lead to confusion. It is instead likely to lead
consumers to the correct conclusion that both parties sell real salt. Consumers will
look for other ways to differentiate these parties’ salt.
When we look past the shared word real, there is nothing else similar in the
marks. Registrant’s mark THE REAL CO does not look or sound like Petitioner’s
REAL SALT mark. The only similarity in meaning is due to the descriptive nature of
the word real, and that is unlikely to lead to confusion.54
The majority notes that given the highly descriptive nature of the REAL SALT
mark, even “minute distinctions” will prevent confusion. There are distinctions
between these marks, but the majority discounts the distinctions because it views the
other elements of the marks—THE, CO, and SALT—as non-distinctive. That is true,
but the word real as used in these marks is highly descriptive and thus is not
distinctive, standing on its own. Indeed, while the other elements of the marks may

54 The majority seems to compare THE REAL CO salt to REAL SALT, but those are not the
marks. The evidence shows the both parties use their registered marks as trademarks, and
add other generic/descriptive identifiers to their goods. Even when both marks are used with
salt, the marks remain THE REAL CO and REAL SALT.
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not convey any meaningful information (except perhaps the generic term “salt” used
in Petitioner’s mark), the word real conveys accurate information to consumers about
the goods, not about the source of the goods.
The majority discounts the CO element of Registrant’s mark because, the majority
finds, this element is merely an entity identifier. That is, the majority finds this
element is an abbreviation for company. There is no evidence of what this element
means to consumers, as it is used in Registrant’s mark.
The mark includes just the letters CO, with no punctuation. Registrant disclaimed
this portion of its mark, but the record contains no explanation for the disclaimer.
More importantly, consumers will not see disclaimers contained in the Office records.
Consumers will see THE REAL CO mark on Registrant’s goods. Petitioner submitted
no evidence of consumer perception of the CO portion of Registrant’s mark, and for
that reason, I would not make any finding as to what it means to consumers. The
majority is correct that Co. is an abbreviation for company, but Petitioner’s Mark does
not include Co.55
The most likely result of concurrent use of these two marks is consumer awareness
that both parties sell real salt. When the marks as a whole are compared, there are

55 Registrant’s name is The Real Co, Inc. This name includes Inc., which is an entity
identifier. Maybe Registrant’s full name is The Real Company, Incorporated, but if so, there
is no evidence of that in the record.
The letters CO are also the official postal abbreviation for Colorado. There is no evidence that
consumers are likely to understand the CO portion of Registrant’s mark as referring to
Colorado, but nor is there evidence that consumers will recognize this element as meaning
company. The CO in Registrant’s mark is a distinction between the marks and there is no
good reason to discount the impact this element might have on consumers, who, the majority
notes, are likely to look for minute distinctions given the weakness of the REAL SALT mark.
Cancellation No. 92065332
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more differences than similarities, and the different elements are only marginally
less distinctive than the shared element. The word real is so highly descriptive of the
parties’ goods that the public will look to other elements to distinguish the source of
the goods. See Juice Generation, 115 USPQ2d at 1674-75; In re Bed & Breakfast
Registry, 229 USPQ at 819. Petitioner has not proven a likelihood of confusion and
for that reason, I would deny the petition.