Traditional Medicinals, Inc.

Trademark Trial and Appeal Board

Jul 10, 1998

No. 74431164 (T.T.A.B. Jul. 10, 1998)

Hearing: Paper No. 17
September 10, 1997 GDH/MD
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JULY 10, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Traditional Medicinals, Inc.
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Serial No. 74/431,164
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Jay H. Geller for Traditional Medicinals, Inc.
Karen Marie Strzyz, Trademark Examining Attorney, Law Office 101
(R. Ellsworth Williams, Managing Attorney).
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Before Hohein, Hairston and Walters, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Traditional Medicinals, Inc. has filed an application
to register the mark "GOLDEN GREEN TEA" for "teas".1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to its goods, so resembles the

1 Ser. No. 74/431,164, filed on September 2, 1993, which alleges dates
of first use of August 10, 1993. The words "GREEN TEA" are
disclaimed.
Ser. No. 74/431,164
2
mark "THE GREEN GOLD TEA" and design, which is registered, as
Ser. No. 74/431,164
3
reproduced below,
for "tea,"2 as to be likely to cause confusion, mistake or
deception.
Applicant has appealed. Briefs have been filed3 and an
oral hearing was held. We affirm the refusal to register.
As a general proposition, our principal reviewing count
has noted that, "[w]hen marks would appear on virtually identical
goods ..., the degree of similarity [of the marks] necessary to
support a conclusion of likely confusion declines." Century 21

2 Reg. No. 1,852,027, issued on August 30, 1994, which sets forth a
date of first use anywhere of December 21, 1992 and a date of first
use in commerce of February 7, 1994. The words "THE" and "TEA" are
disclaimed.
3 Applicant, with its initial brief, submitted excerpts of certain
dictionary definitions. While, under Trademark Rule 2.142(d), such
evidence is technically untimely, we have considered it inasmuch as
the Examining Attorney, in her brief, has treated the definitions as
being of record. See In re Nuclear Research Corp., 16 USPQ2d 1316,
1317 (TTAB 1990) at n. 2. Moreover, and in any event, it is well
settled that judicial notice may properly be taken of dictionary
definitions. See, e.g., Hancock v. American Steel & Wire Co. of New
Jersey, 203 F.2d 737, 97 USPQ 330, 332 (CCPA 1953) and University of
Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ
594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
Ser. No. 74/431,164
4
Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23
USPQ2d 1698, 1701 (Fed. Cir. 1992), cert. denied, 506 U.S. 1034
(1994). Here, both applicant’s goods and registrant’s goods are
identified as tea(s). Although applicant’s specimens of use
show, as underscored by the disclaimer in the application, that
the goods it offers under its mark are green tea while, as
applicant observes, "[t]he type of tea covered by the
registration is not stated," the respective goods must
nevertheless be considered to be identical inasmuch as the
application and registration broadly identify the goods simply as
tea(s).
Applicant argues, however, that despite the identity of
the respective goods, confusion as to the source or sponsorship
thereof is not likely because the marks at issue do not have the
same appearance, they are not a transposition of each other and
"they are totally dissimilar in sound". In particular, applicant
"submits that it is clear [that] when the two marks are compared
side by side, there is no similarity in appearance due to the
fact that:
Applicant’s mark is the words GOLDEN GREEN
TEA while the registered mark is comprised of
the barely legible words GREEN GOLD TEA
superimposed on a disproportionately and
extremely large, overpowering three leaf
sprig, surrounded by a double lined box out
of which emerge two of the leaves. From the
drawing in the registration, it is extremely
difficult to read the words "THE GREEN GOLDEN
TEA". On their face, the marks do not look
alike and do not have the same appearance.
Consequently, since "[o]ne can barely see the words" in
registrant’s mark, applicant maintains that it is the leaf design
Ser. No. 74/431,164
5
therein which "totally dominates the mark" and distinguishes it
visually from applicant’s mark.
Applicant further points out that, inasmuch as its mark
contains the word "GOLDEN" rather than "GOLD," its mark--strictly
speaking--is not a transposition of the words "GREEN GOLD" in
registrant’s mark. Moreover, according to applicant, the
respective marks are not only dissimilar in sound but, in light
of the dictionary definitions furnished by applicant, "it is
clear that the connotations of the noun GOLD and the adjective
GOLDEN are entirely different."4 Thus, in light of the asserted
differences in meaning, applicant contends that, when considered
in their entireties, its "GOLDEN GREEN TEA" mark engenders a
completely different commercial impression from registrant’s "THE
GREEN GOLD TEA" and design mark.5

4 Specifically, although the excerpts from Webster’s Ninth New
Collegiate Dictionary (1986) at 526 do indeed show that the noun
"gold" is defined, inter alia, as "1 : a malleable ductile yellow
metallic element that ... is used esp. in coins, jewelry, and
dentures," while the adjective "golden" is listed as signifying, among
other things, "2 a : having the color gold," the former is also
defined as "3 : a variable color averaging deep yellow" and the latter
is set forth as meaning "1 : consisting of, relating to, or containing
gold." Such terms, as applicant’s own evidence shows, may therefore
be considered as essentially synonymous in meaning rather than being,
as applicant urges, "entirely different".
5 Applicant also argues, without any affidavit or other evidentiary
support, that it "has used its mark ... since August, 1993," while
"[t]he registered mark has been used by the registrant since December
1992." Applicant asserts, in view of the period of contemporaneous
use of the respective marks, that it "is aware of no instances of
confusion" and that, "while absence of actual confusion is not
dispositive of likelihood of confusion, it is a factor to be
considered" which "tip[s] heavily in applicant’s favor." We note,
however, that while the absence of any incidents of actual confusion
over a significant period of time is a factor indicative of no
likelihood of confusion, such is a meaningful factor only where the
record demonstrates appreciable and continuous use by the applicant of
its mark for a significant period of time in the same markets as those
served by the registrant under its mark. See, e.g., Gillette Canada
Ser. No. 74/431,164
6
We agree, however, with the Examining Attorney that
confusion is likely to result from contemporaneous use of the
marks "GOLDEN GREEN TEA" and "THE GOLD GREEN TEA" and design for
tea. While applicant is correct that the respective marks must
be considered in their entireties, it is nevertheless the case
that, in articulating reasons for reaching a conclusion on the
issue of likelihood of confusion, "there is nothing improper in
stating that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided [that] the
ultimate conclusion rests on consideration of the marks in their
entireties." In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985). For instance, "that a particular
feature is descriptive or generic with respect to the involved
goods or services is one commonly accepted rationale for giving
less weight to a portion of a mark ...." 224 USPQ at 751.
Here, while there are indeed differences in the
respective marks which are apparent upon a side-by-side
comparison,6 the prominence of the three-leaf design in

Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). It is not a
mitigating factor where, as here, the record is devoid of information
concerning the nature and extent of the marketing activities of
applicant and registrant under their respective marks during the
asserted period of contemporaneous use and such period has been
relatively brief. In this case, we not only have no indication as to
what registrant’s experience has been, but we have no details as to
the level of sales, advertising expenditures and marketing areas
served by applicant during an asserted period of contemporaneous use
of less than four years. Compare In re General Motors Corp., 23
USPQ2d 1465, 1470-71 (TTAB 1992). The purported absence of any
instances of actual confusion thus does not have any meaningful
bearing on the issue of likelihood of confusion in this case.
6 Such a comparison, however, is not the proper test, generally
speaking, to be used in determining the issue of likelihood of
confusion since it ordinarily is not the way that a prospective
customer will be exposed to the marks. Instead, it is the similarity
Ser. No. 74/431,164
7
registrant’s mark is an insufficient basis for regarding such
mark as being distinguishable from applicant’s mark. This is
because, as applied to labeling or packaging for tea, the three-
leaf design in registrant’s mark would be regarded as a
representation of tea leaves and, thus, such design is
descriptive of registrant’s goods.7 Consequently, despite the
prominence of the three-leaf design, it is the mark "THE GREEN
GOLD TEA" in registrant’s mark which, in terms of indicating
origin or affiliation, would be most likely to be impressed upon
a customer’s memory and which, as the Examining Attorney notes,
would be used by a prospective purchaser when requesting or
otherwise looking for registrant’s tea. Such words, when framed
by a rectangular border and superimposed over a design of three
tea leaves, are simply not so minuscule as to be imperceptible,
as contended by applicant.
We agree, moreover, with the Examining Attorney that,
not only are the words "THE GREEN GOLD TEA" in registrant’s mark
noticeable, but such words constitute, as a practical matter, a

of the general overall commercial impression engendered by the marks
which must determine, due to the fallibility of memory and the
consequent lack of perfect recall, whether confusion as to source or
sponsorship is likely. The proper emphasis is accordingly on the
recollection of the average purchaser, who normally retains a general
rather than a specific impression of trademarks or service marks.
See, e.g., Grandpa Pidgeon’s of Missouri, Inc. v. Borgsmiller, 477
F.2d 586, 177 USPQ 573, 574 (CCPA 1973); Envirotech Corp. v. Solaran
Corp., 211 USPQ 724, 733 (TTAB 1981); and Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106, 108 (TTAB 1975). Thus, even though
applicant’s and registrant’s goods are identical, it cannot be assumed
that the tea sold by each will invariably be sold side-by-side in all
outlets at which goods of such kinds are marketed.
7 Counsel for applicant conceded at the oral hearing that prospective
purchasers would view the leaves in registrant’s mark as tea leaves
when the mark is displayed on packaging for registrant’s tea.
Ser. No. 74/431,164
8
transposition of applicant’s "GOLDEN GREEN TEA" mark. As the
Examining Attorney persuasively points out in her brief:
The applicant’s transposition [of the literal
elements of registrant’s "THE GREEN GOLD TEA"
and design mark] does not alter the overall
commercial impression of the applicant’s
mark. GOLDEN GREEN and GREEN GOLD both
connote tea that is green and gold(en) in
color or tea that is green and precious or of
high quality.
Given the substantial identity in their overall commercial
impression, and the substantial similarities shared by the marks
in sound, appearance and connotation, the contemporaneous use
thereof in connection with the same goods--tea--would be likely
to cause confusion. See, e.g., In re Wine Society of America
Inc., 12 USPQ2d 1139, 1142 (TTAB 1989) [mark "THE WINE SOCIETY OF
AMERICA" and design for wine club membership services including
the supplying of printed materials held likely to cause confusion
with mark "AMERICAN WINE SOCIETY 1967" and design for a
newsletter, bulletin and journal of interest to the registrant’s
members] and In re Nationwide Industries Inc., 6 USPQ2d 1882,
1884 (TTAB 1988) [mark "RUST BUSTER" (with "RUST" disclaimed) for
rust-penetrating spray lubricant held likely to cause confusion
with mark "BUST RUST" for penetrating oil].
Applicant insists, nevertheless, that "any likelihood
of confusion is lessened" because the respective goods "are not
purchased on impulse." Instead, according to applicant, the
products "are purchased by sophisticated, knowledgeable consumers
looking for a particular product and particular brand" of tea.
Again, we concur with the Examining Attorney that tea typically
Ser. No. 74/431,164
9
"is not an expensive or complicated" product; that it is commonly
found prepackaged in supermarkets and grocery stores; and that it
is often purchased on impulse. Furthermore, even if tea
drinkers, by and large, were to be viewed as sophisticated and
knowledgeable about the types of tea which they prefer, such does
not necessarily mean that they are knowledgeable or sophisticated
in the field of trademarks or immune from source confusion. See,
e.g., In re Decombe, 9 USPQ2d 1812, 1814-15 (TTAB 1988) and In re
Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983).
Finally, to the extent that there could be any doubt as
to our conclusion that contemporaneous use of the marks "GOLDEN
GREEN TEA" and "THE GREEN GOLD TEA" and design in connection with
tea is likely to cause confusion, we resolve such doubt--as we
must--in favor of the registrant. See, e.g., In re Pneumatiques,
Caoutchouc Manufacture et Plastiques Kleber-Colombes, 487 F.2d
918, 179 USPQ 729 (CCPA 1973).
Decision: The refusal under Section 2(d) is affirmed.
G. D. Hohein
P. T. Hairston
C. E. Walters
Administrative Trademark Judges,
Trademark Trial and Appeal Board