Rock Front Ranch Products

Trademark Trial and Appeal Board

May 27, 2021

87819103 (T.T.A.B. May. 27, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 27, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Rock Front Ranch Products
_____
Serial No. 87819103
_____
Francis J. Ciaramella of Francis J. Ciaramella, PLLC
for Rock Front Ranch Products.

John T. Billings, Trademark Examining Attorney, Law Office 113,
Myriah Habeeb, Managing Attorney.
_____
Before Wellington, Kuczma, and Lebow,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Rock Front Ranch Products (“Applicant”) seeks registration on the Principal
Register of the mark:
Serial No. 87819103
- 2 -

for “dried jujube fruit” in International Class 29. The word JUJUBES has been
disclaimed.1
The Examining Attorney has refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with thirteen
JUST [fruit name]-formative registered marks. The cited registrations are:
REG. NO. MARK GOODS
4661755 JUST GRAPES “dried fruit and vegetables”

4647461 JUST CRANBERRIES “dried fruit and vegetables, namely,
dried cranberries”

4647460 JUST CHERRIES “dried fruit and vegetables, namely,
dried cherries”

4647459

JUST BLUEBERRIES “dried fruit and vegetables, namely,
dried blueberries”

4439586 JUST
STRAWBERRIES
“dried fruit and vegetables”

1 Application Serial No. 87819103 was filed March 3, 2018, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s allegation of first use the mark
anywhere on January 1, 2016, and in commerce on January 1, 2018. The mark is described
in the application as:
[T]wo words stacked, JUST JUJUBES. in stylized brown font, except for the J in
JUST and the second J in JUJUBES., which are stylized as a single letter in the
color red with a green leave extending to the left of the top of the letter, the tittle
over the first J in red and the period in red; all of which appears on a white
background.
Serial No. 87819103
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REG. NO. MARK GOODS
4439584 JUST
STRAWBERRIES ‘N
BANANAS

“dried fruit and vegetables”
4436076 JUST RASPBERRIES “dried fruit”

4439583

JUST POMEGRANATE “dried fruit”
4439582

JUST PINEAPPLE “dried fruit”
4436075

JUST PEACHES “dried fruit”
4439572

JUST BANANAS “dried fruit and vegetables”
4439569

JUST APPLES “dried fruit and vegetables”
4333534

JUST MANGO “dehydrated fruit snacks”

All of the cited registered marks are in standard characters, with a disclaimer of the
name of the fruit in the mark, e.g., GRAPES, CRANBERRIES, CHERRIES, etc. The
same entity, Just Tomatoes, Inc. (“Registrant”), owns the registrations.
After the Examining Attorney made the refusal final, Applicant appealed and filed
a request for reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed and has been briefed.
For the reasons set forth below, we affirm the refusal to register.
I. Likelihood of Confusion
The determination under Section 2(d) involves 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) (setting forth factors to be
considered, hereinafter referred to as “DuPont factors”); see also In re Majestic
Serial No. 87819103
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Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the relatedness of the goods. See In re Chatam Int’l Inc., 380 F.3d
1340, 71 USPQ2d 1944 (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.”).
A. Relatedness of the Goods and Their Trade Channels
We begin our analysis with the DuPont factors regarding the similarity or
dissimilarity of the goods, DuPont, 177 USPQ at 567, and the “similarity or
dissimilarity of established, likely-to-continue trade channels.” Id. We base our
determinations in connection with these factors on the “nature of the goods or services
as described in an application or registration[s].” Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159 (Fed. Cir. 2014); Octocom
Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990).
All but three of the cited registrations are for “dried [or dehydrated] fruit” and this
term is broad enough to include Applicant’s “dried jujube fruit.”2 Thus, for purposes
of comparison of these goods, they are legally identical. See In re Hughes Furniture
Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded

2 A “jujube” is a “small sweet greenish to red fruit … also called Chinese date.” THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th Edition 2020). Copy of definition
attached to Office Action issued April 6, 2020.
Serial No. 87819103
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identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified
‘residential and commercial furniture’”). As to the three cited registrations that
identify a certain dried fruit, i.e., cranberries, cherries and blueberries, these goods
are also related to Applicant’s dried jujube fruit to the extent that they are all dried
fruit and may be eaten as snacks. The Examining Attorney submitted evidence
showing that, like other dried fruit, “freshly harvested, as well as candied dried
[jujube] fruit, are often eaten as a snack, or with coffee.”3 The Examining Attorney
also submitted evidence demonstrating that dried jujubes and other dried fruit like
that offered by Registrant are advertised on the same retail websites.4
Where, as here, the goods are in part legally identical because one listed item
encompasses another, we presume that the channels of trade and classes of
purchasers for those identical goods are also the same. See In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence
regarding channels of trade and classes of consumers, the Board was entitled to rely
on this legal presumption in determining likelihood of confusion); In re Yawata Iron
& Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally
identical goods or services, the channels of trade and classes of purchasers are
considered to be the same); Am. Lebanese Syrian Associated Charities Inc. v. Child
Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011).

3 From online dictionary Wikipedia (www.en.wikipedia.org); printouts attached to Office
Action issued April 6, 2020.
4 See, e.g., printouts from Nuts.com website attached to April 6, 2020 Office Action, TSDR
pp. 40-47.
Serial No. 87819103
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Accordingly, the second and third DuPont factors weigh heavily in favor of finding
likelihood of confusion.
B. Alleged Weakness of Shared Term JUST
The sixth DuPont factor considers “[t]he number and nature of similar marks in
use on similar goods.” DuPont, 177 USPQ at 567. “Evidence of third-party use of
similar marks on similar goods is relevant to show that a mark is relatively weak and
entitled to only a narrow scope of protection.” Palm Bay Imps. Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir.
2005), quoted in 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).
Applicant argues “there is no evidence that the cited Prior Marks are famous or
have acquired secondary meaning within the marketplace or that consumers
associate the term JUST with the [Registrant]. To the contrary, … there are many
marks containing the word JUST for use with fruit-related goods and services, and
the [Registrant] represents a minuscule percentage of such trademarks.”5 Applicant
further contends that because “other marks besides those belonging to the Applicant
and [Registrant] have used the word JUST for use with fruit-related goods and
services … it cannot be said that Applicant’s mark will create a likelihood of

5 6 TTABVUE 10.
Serial No. 87819103
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confusion.”6 In support, Applicant submitted copies of thirty-three, third-party
registrations for marks that have the term JUST and covered fruit-related products.7
Upon review of the third-party registration evidence, we note that only one (JUST
GRAPES AND SUN) is for dried fruit, and one other registration (JUST ENOUGH)
is for “trail mix consisting of dried fruit and chocolate.” All of the other registrations
are for different fruit products, such as: fresh/frozen/processed fruit, confections,
juices or beverages, purees, salads, etc. Thus, while one third-party registration is for
the same goods as those at issue, the others have much less of a relationship. As the
Federal Circuit has emphasized, the relevant inquiry under the sixth DuPont factor
is the number and nature of similar marks on similar goods. Omaha Steaks Int’l, Inc.
v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1693-94 (Fed. Cir.
2018) (citing Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874 , 23
USPQ2d 1698, 1701 (Fed. Cir. 1992).
In addition, as the Examining Attorney points out, twelve of the third-party
registrations for marks that do have a similar JUST (with name of fruit) structure
are owned by a single entity, Smucker Natural Foods, Inc., and are for fruit drinks or
juices.8 Thus, not only do these registrations cover different goods, but the fact that a

6 Id. at 11.
7 Printouts for registrations from Office electronic database (TESS) attached to Request for
Reconsideration filed October 6, 2020.
8 The Examining Attorney lists the twelve registrations at 8 TTABVUE 15-16. The registered
marks include JUST GRAPEFRUIT, JUST PINEAPPLE, JUST TART CHERRY, JUST
BLUEBERRY, etc.
Serial No. 87819103
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single entity owns them diminishes any notion that JUST [fruit name] marks are
owned by many different entities.
We further note that there is no evidence regarding whether the third-party
registered marks are actually in use in commerce. “Applicant’s citation of third-party
registrations as evidence of market weakness is unavailing because third-party
registrations standing alone, 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) quoted in Sock It To Me, Inc. v. Aiping Fan, 2020 USPQ2d 10611, *9
(TTAB 2020). The third-party registrations, with no evidence of the extent of their
use in commerce, do not diminish the commercial strength of Registrant’s marks. Id.
“We have frequently said that little weight is to be given such [third-party]
registrations in evaluating whether there is likelihood of confusion. The existence of
these registrations is not evidence of what happens in the market place or that
customers are familiar with them....” AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d
1403, 177 USPQ 268, 269 (CCPA 1973) quoted in In re Inn at St. John’s, 126 USPQ2d
at 1746 (TTAB 2018).
In terms of conceptual strength of the term, third-party registration evidence may
be probative. “[E]vidence of third-party registrations is relevant to show the sense in
which a mark is used in ordinary parlance, … that is, some segment that is common
to both parties’ marks may have a normally understood and well-recognized
Serial No. 87819103
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descriptive or suggestive meaning, leading to the conclusion that that segment is
relatively weak….” Jack Wolfskin, 116 USPQ2d at 1136 (citing Juice Generation, 115
USPQ2d at 1675). As the Examining Attorney points out, many of third-party
registered marks show the term JUST used in various different contexts and
imparting very different connations, e.g., JUST SMILE, JUST OUR SECRET, JUST
ABOUT, JUST PRESSED, JUST MADE, JUST PIK’T, etc. However, several of the
third-party registered marks, particularly the twelve owned by Smucker Natural
Foods, Inc., employ the JUST [name of fruit] structure that Applicant and Registrant
use, and this helps show such marks may impart a suggestive connotation, namely,
to signify that the focus of such goods is only (“just”) on the fruit name in the mark.
Again, the probative value of these registrations is only to show some conceptual
weakness in the marks based on their suggestive nature in connection with food or
beverages, in general. Textronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 917 (CCPA
1976).
In sum, there is no showing of commercial weakness under the sixth DuPont
factor. However, there is some conceptual weakness in the term JUST when followed
by a name of a fruit, and this weighs against a likelihood of confusion.
C. Comparison of the Marks
We now compare the marks “in their entireties as to appearance, sound,
connotation and commercial impression.” Palm Bay Imps. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005) (quoting du Pont, 177 USPQ at 567). The test assesses not whether the marks
Serial No. 87819103
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can be distinguished in a side-by-side comparison, but rather whether their overall
commercial impressions are so similar that confusion as to the source of the goods
offered under the respective marks is likely to result. Coach Servs. Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom
Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). There is nothing
improper in stating that, for rational reasons, we have given more or less weight to a
particular feature of a mark, such as a common element, provided the ultimate
conclusion rests on a consideration of the marks in their entireties. In re Detroit
Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing In re
Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
Applicant’s mark, again, is and the cited registered marks are
JUST GRAPES, JUST CRANBERRIES, JUST CHERRIES, JUST BLUEBERRIES,
JUST STRAWBERRIES, JUST STRAWBERRIES ‘N BANANAS, JUST
RASPBERRIES, JUST POMEGRANATE, JUST PINEAPPLE, JUST PEACHES,
JUST BANANAS, JUST APPLES, and JUST MANGO.
Here, Applicant’s mark is overall very similar to each of the registered marks
because they all share the same word structure—JUST [name of a fruit].9 Although
we have found this JUST [name of fruit] word structure to be suggestive of food goods,

9 Only the registered mark JUST STRAWBERRIES ‘N BANANAS differs slightly in this
formula because it contains the names of two fruits.
Serial No. 87819103
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we note that this also brings Applicant’s and Registrant’s marks closer in terms of
their commercial impressions. Despite any conceptual weakness, consumers
perceiving such a connotation and already familiar with Registrant’s JUST-formative
marks for different dried fruit, are likely to mistakenly believe that Applicant’s mark
is simply an extension of that line. Put differently, consumers will not rely on the
names of the different fruits in the marks, but are more likely to notice the term JUST
in each of the marks because it is also the only inherently distinctive word in the
marks. See Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d
1253, 1257 (Fed. Cir. 2011) (“[W]hen a mark consists of two or more words, some of
which are disclaimed, the word not disclaimed is generally regarded as the dominant
or critical term.”)
We do not ignore the font stylization and letter J with a leaf design in Applicant’s
mark. Indeed, the letter J design appears large and is centered in Applicant’s mark
to connect the terms JUST and JUJUBES. This is a difference; however, we also keep
in mind that with marks “consisting of words and a design, the words are normally
accorded greater weight because they are likely to make a greater impression upon
purchasers, to be remembered by them, and to be used to request the goods.” In re
Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra
Inc., 101 USPQ2d at 1908). The stylized font for the wording in Applicant’s mark does
not distinguish it from the cited marks because the registered marks are in standard
character format and may be displayed in the same exact font as Applicant’s mark.
In re Viterra Inc., 101 USPQ2d 1909-11 (holding that the specific font style of a mark
Serial No. 87819103
- 12 -
cannot serve as the basis to distinguish it from a mark in standard character form);
In re Aquitaine Wine USA, LLC, 2018 TTAB LEXIS 108, 126 USPQ2d 1181, 1186
(TTAB 2018) (literal elements of a standard character mark may be presented in any
font style, size or color). Moreover, the J letter with leaf design does not significantly
alter or detract from the commercial impression conveyed by wording; at best, it may
suggest a natural quality of the dried jujube fruit because it grows on a tree like
many other types of fruit. Thus, “because applicant’s mark shares with registrant’s
mark that element responsible for creating its overall commercial impression, the
marks are confusingly similar.” See In re Appetito Provisions Co. Inc., 3 USPQ2d
1553, 1554 (TTAB 1987).
In sum, the identity of the same first word and word structure makes the marks
overall very similar and outweighs the differences between the marks. Accordingly,
this DuPont factor weighs in favor of likely confusion.
D. Lack of Actual Confusion
Finally, Applicant argues that “there has been no documented evidence that
shows that any consumers have confused the respective marks in commerce. There
have been no demonstrated events of confusion by consumers between the respective
marks.”10
The absence of any reported instances of confusion is meaningful only if the record
indicates appreciable and continuous use by Applicant and Registrant of their marks

10 6 TTABVUE 10.
Serial No. 87819103
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for a significant time in the same markets. In re Opus One Inc., 60 USPQ2d 1812,
1817 (TTAB 2001); In re Kangaroos U.S.A., 223 USPQ 1025, 1026-27 (TTAB 1984).
In other words, for the absence of actual confusion to be probative, there must have
been a reasonable opportunity for confusion to occur.
Here, Applicant only alleges use of its mark in commerce as of January 1, 2018.
There is no probative evidence relating to the extent Applicant and Registrant have
used their respective marks since 2018 for us to find that there has been real
opportunity for instances of actual confusion to have occurred in the marketplace.
Thus, we cannot make any conclusions in this regard based solely on Applicant’s mere
assertion of no instances of actual confusion. In any event, a lack of evidence of actual
confusion carries little weight in an ex parte case such as this. In re Majestic Distilling
Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). “[I]t is unnecessary to
show actual confusion in establishing likelihood of confusion.” Giant Food, Inc. v.
Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 396 (Fed. Cir. 1983). This
DuPont factor is neutral.
II. Conclusion
Despite some conceptual weakness in their shared word structure, JUST [name
of fruit], we find Applicant’s mark and Registrant’s marks are overall very similar,
such that when they are used on identical goods that move in the same channels of
trade to the same classes of customers, confusion is likely.
Decision: The refusal to register Applicant’s mark is affirmed.