Seedbiotics, LLC

Trademark Trial and Appeal Board

Jun 29, 2001

No. 75681024 (T.T.A.B. Jun. 29, 2001)

06/29/01
Paper No. 10
GFR
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Seedbiotics, LLC
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Serial No. 75/681,024
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Ken J. Pedersen of Pedersen & Company PLLC for Seedbiotics,
LLC.
Tina L. Snapp, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney 105).
_______
Before Hairston, Rogers and Drost,
Administrative Trademark Judges.
Opinion by Rogers, Administrative Trademark Judge:
Seedbiotics, LLC has filed an application to register
the mark UPSTART for goods identified, following amendment,
as "chemicals for use in agriculture, namely, polymer
coatings to improve the longevity and germination of legume
seeds," in International Class 1.1 The Examining Attorney
has refused registration under Section 2(d) of the
1 Application No. 75/681,024, filed April 12, 1999, based on
applicant's allegation that it has a bona fide intention to use
the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/681,024
2
Trademark Act, in view of the prior registration of UP-
START for "fertilizers" in International Class 1.
When the Examining Attorney made the refusal final,
applicant appealed. Both applicant and the Examining
Attorney filed briefs2, but an oral argument was not
requested. We affirm the refusal.
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
confusion issue. See In re E.I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In the
analysis of likelihood of confusion presented by this case,
key considerations are the virtually identical nature of
the marks, the related nature of the goods, and the
presumptive overlap in classes of consumers for the
respective goods. Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
The marks appear the same, but for registrant's
insertion of a hyphen between the "UP" and "START" portions
of its mark. The marks would be pronounced the same and
would appear to have the same connotation; at least,
2 In reviewing the file, we noted that the Examining Attorney
mailed her brief to a different attorney, at a different firm,
than applicant's counsel. Applicant's counsel was contacted by
phone and confirmed that he received the brief, though much later
Ser. No. 75/681,024
3
applicant has not presented evidence or argument that the
marks would have different connotations because of
differences in the goods. In sum, the commercial
impressions created by the marks are virtually identical.
The virtual identity of the marks makes it likely
that, if the marks were used in connection with related
goods, confusion would result. In this regard, the Board
has stated that "[i]f the marks are the same or almost so,
it is only necessary that there be a viable relationship
between the goods or services in order to support a holding
of likelihood of confusion." In re Concordia International
Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983).
Essentially conceding the identity of the marks,
applicant has focused on the differences in the goods and
the asserted differences in their channels of trade and
classes of consumers. The Examining Attorney argues that
the involved goods are related because they "may… be
characterized as 'chemicals for use in agriculture'" and
seed coatings often contain fertilizer. Applicant admits
that seed coatings "often contain a fertilizer ingredient"
but argues that any purchaser of fertilizer for use in
manufacture of seed coatings would not, when marketing the
than if it had been mailed correctly. Counsel also stated that
applicant had chosen not to file a reply brief.
Ser. No. 75/681,024
4
resulting coatings, reveal the identity of the fertilizer
used as an ingredient thereof. Thus, applicant concludes
that prospective purchasers of seed coatings would not also
be confronted with the mark for the fertilizer used to make
the coatings.
As an alternative argument, the Examining Attorney
asserts that third-party registrations made of record are
evidence that both fertilizers and seed coatings emanate
from the same source. Applicant admits that it "appears to
be true" that there are manufacturers that make both seed
coatings and fertilizers. Yet applicant argues that the
third-party registrations introduced by the Examining
Attorney to support this contention do not also support a
conclusion that the different goods, though emanating from
a single source, are marketed to the same or similar
classes of consumers through the same or similar channels
of trade. In this regard, while the Examining Attorney
argues that both types of goods "promote the germination of
seedlings," applicant asserts that seed coatings "are sold
to persons who plant seeds. Fertilizers, on the other
hand, are sold to people who grow plants. Seed planters
and plant growers are not necessarily the same."
The Examining Attorney's characterization of the goods
as related merely because they both may be broadly
Ser. No. 75/681,024
5
characterized as agricultural chemicals is overly
simplistic. The mere fact that one may use the same broad
term to describe two types of goods does not establish that
they are related or competitive. Also, the Examining
Attorney's characterization that both involved goods
"promote the germination of seedlings" appears botanically
incorrect.3 Nonetheless, there is no apparent support for
applicant's assertion that planting of seeds and growing of
plants are activities undertaken separately. They
obviously are activities on one continuum of plant
development, i.e., planted seeds germinate into seedlings
(small plants or trees) whose continued growth is then
cultivated. In other words, it appears fundamental that
persons who plant seeds do so to grow plants,
notwithstanding applicant's argument to the contrary.
Applicant admits that persons who plant seeds will use
its seed coatings. These same persons will, after their
seeds have germinated into seedlings, be prospective
purchasers of fertilizers for use in their cultivation or
3 Seeds, not seedlings, germinate. See the definition of
"germinate" at The Random House College Dictionary 553 (Rev. ed.
1982) (2. Bot. a. to develop into a plant or individual, as a
seed, spore, bulb, or the like. b. to sprout; put forth shoots.).
Seedlings, as small plants, grow after having been germinated
from a seed. See the definition of "seedling" at The Random
House College Dictionary 1191 (Rev. ed. 1982) (1. a plant or tree
grown from a seed. 2. a tree not yet three feet high. 3. any
young plant, esp. one grown in a nursery for transplanting.).
Ser. No. 75/681,024
6
transplanting of the seedlings. In short, based on the
identifications of goods, applicant's seed coatings and
registrant's fertilizers appear to be complementary
products that would be used by a common class of consumers.
In the absence of restrictions in either identification--
and there are none--the goods must be presumed to travel or
be marketed to such consumers through the same channels of
trade. Canadian Imperial Bank of Commerce, National
Association v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813, 1815-16 (Fed. Cir. 1987).
In view of the virtually identical marks and clear
relationship of the goods, there is a likelihood of
confusion or mistake or that consumers would be deceived.
Decision: The refusal to register under Section 2(d)
is affirmed.