Wellshire Farms, Inc.

Trademark Trial and Appeal Board

Mar 31, 2008

No. 78478496 (T.T.A.B. Mar. 31, 2008)

Mailed: March 31, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
_______

Trademark Trial and Appeal Board
_______

In re Wellshire Farms, Inc.
_______

Application No. 78478496
_______

Eugene E. Renz, Jr. of Eugene E. Renz, Jr., PC for
applicant.

Maureen L. Dall, Examining Attorney, Law Office 117 (Loretta
C. Beck, Managing Attorney).
_______

Before Seeherman, Walsh, and Mermelstein, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:
Wellshire Farms filed an application to register
the mark THE GLOBAL GOURMET (in standard characters)1
on the Principal Register for “meat products” in
International Class 29.
The examining attorney issued a final refusal to
register under Trademark Act § 2(d), 15 U.S.C. § 1052(d), on
the ground that applicant’s mark so resembles the mark
GLOBAL GOURMET (typed), previously registered for
providing users of a global computer network with
access to an interactive on-line computer database
and bulletin board services featuring information

1 Filed September 3, 2004, based on a bona fide intent to use the
mark in commerce. Applicant has disclaimed the exclusive right
to use “gourmet” apart from the mark as shown.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Application No. 78478496
2
about culinary products and services; providing
on-line computerized ordering of nutritional,
culinary and food-related products and services;
providing video recordings and printed information
regarding nutritional, culinary and food-related
information that may be downloaded from a global
computer network

in International Class 42,2 that it would, if used on
or in connection with the identified goods, be likely
to cause confusion, to cause mistake, or to deceive.
The examining attorney has also made final a
requirement for an acceptable identification of goods.
Applicant appealed. Both applicant and the examining
attorney have filed briefs.
We affirm.
I. Applicable Law
We base our determination under Section 2(d) on an
analysis of all of the probative evidence of record bearing
on the likelihood of confusion. See In re E.I. du Pont de
Nemours and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973);
see also Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005); In re Majestic Distilling Co., Inc., 315 F.3d
1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).

2 Registration No. 2145180, issued March 17, 1998. “Gourmet”
disclaimed. Filings under Trademark Act §§ 8 & 9 accepted and
granted.
Application No. 78478496
3
In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); In re
Azteca Rest. Enter., Inc., 50 USPQ2d 1209 (TTAB 1999).
II. Record on Appeal
A. Submitted Evidence
The examining attorney submitted the following
evidence:
• Dictionary definitions:

o gourmet ... Food expert: somebody who has an
expert knowledge and an enjoyment of good food and
drink.

ENCARTA WORLD ENGLISH DICTIONARY (North American
edition)(online version) (3/31/2005);

o culinary ... relating to cooking: relating to food
or cooking.

ENCARTA WORLD ENGLISH DICTIONARY (North American
edition)(online version) (10/14/07)(submitted with
brief);

o culinary ... having to do with cooking

LITTLE OXFORD ENGLISH DICTIONARY 162 (9th ed. 2006)
(submitted with brief);

• Thirty-five third-party registrations, submitted to
demonstrate the relationship between applicant’s
goods and the cited registrant’s services.

Application No. 78478496
4
Applicant submitted the following evidence in support
of registration:
• A page from applicant’s website purportedly showing
that its goods “are sold to consumers in high end
food markets such as WHOLE FOODS, INC., WILD OATS
and others.” Response to Office Action, p. 2.

• A page from registrant’s website purportedly showing
that “Registrant provides information identifying
sponsors such as AMAZON and others.... It is noted
that retail food markets are not identified as
sponsors and thus Registrant’s products listed in
its identification is limited to information and not
consumable products such as” applicant’s. Response
to Office Action, p. 2.

• The definition of “culinary[:]” as “of, or relating
to a kitchen or to cookery.”

Applicant’s Br. at 6, citing AMERICAN HERITAGE
DICTIONARY. See discussion infra.

B. Evidentiary Issues
Both the examining attorney and applicant raised
evidentiary issues in their briefs. As noted above, the
examining attorney requested that we take judicial notice of
two dictionary definitions of the word “culinary.”
In addition to the evidence submitted during
examination, applicant requests in its brief that the Board
take judicial notice that “[a]pproximately 2,400 live
registrations contain the term GLOBAL. Of these live
registrations, about 36 are associated with a description of
the goods or services that includes the word ‘food.’”
Applicant also refers to and cites the definition of
Application No. 78478496
5
“culinary” from the American Heritage Dictionary in its
brief. Applicant’s Br. at 7.
The Board may take judicial notice of dictionary
definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food
Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372,
217 USPQ 505 (Fed. Cir. 1983), including online dictionaries
that exist in printed format or have regular fixed editions.
In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
The examining attorney furnished a copy of the two
definitions in question, both of which come from printed
dictionaries or online versions of printed dictionaries. We
therefore grant the examining attorney’s requests for
judicial notice of the two definitions of “culinary”
attached to her brief.
On the other hand, applicant did not supply a copy of
the definition of “culinary” it cited in its brief, nor did
it explicitly request that we take judicial notice of it.
The examining attorney has objected to consideration of this
definition. While applicant did not explicitly request
judicial notice, we think that is a fair interpretation of
applicant’s quotation and citation of the definition in its
brief. And while applicant should have furnished a copy of
the definition, this is clearly a fact which is “capable of
accurate and ready determination by resort to sources whose
Application No. 78478496
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accuracy cannot reasonably be questioned.” Under these
circumstances, we will take notice of this definition.
Finally, we note that applicant offered no evidence to
substantiate its statements about third-party registrations.
We have long held that we will not take judicial notice of
third-party registrations. In re Carolina Apparel, 48
USPQ2d 1542, 1542 n.2 (TTAB 1998); In re Duofold, 182 USPQ
638, 640 (TTAB 1974). Accordingly, applicant’s request for
judicial notice is denied, and we will not further consider
the existence of these registrations or the registrations
themselves.3
III. Issues on Appeal
A. Identification of Goods
The examining attorney maintains that applicant’s
identification of goods remains indefinite. We consider
applicant’s proffered identifications in turn.
1. Application as Filed
When it filed the subject application, applicant listed
its goods as “[m]eat products.”
By her first office action, the examining attorney
noted that the original identification was unacceptable, and
required amendment. Specifically, the examining attorney
found that

3 We add that we do not believe this evidence would require a
different result.
Application No. 78478496
7
[t]he wording “products” in the identification of
goods needs clarification because it is overly
broad. Applicant must specify the common
commercial name for the meat products. TMEP
§ 1402.01. Applicant may adopt the following
identification, if accurate: meat products,
namely, meat, in Class 29.

2. First Proffered Amendment
In response to the examining attorney’s office action,
applicant submitted an amendment of the identification of
goods to “[a]ll natural meat products.”
In her final Office action, the examining attorney
maintained the requirement for a more specific
identification of goods:
The wording “products” in the identification of
goods needs clarification because it is overly
broad. Applicant must specify the common
commercial name for the meat products. TMEP
§ 1402.01. The addition of “all natural” to the
identification does not clarify the “products.”
Applicant may simply indicate that its goods are
meat, e.g., “organic meat,” or it must specify the
common commercial name for each type of meat
product. Applicant may adopt the following
identification, if accurate: All natural meat
products, namely, organic meat, in Class 29.

3. Second Proffered Amendment
Applicant did not file a request for reconsideration
(or a request for remand while the appeal was pending).
Instead, applicant has submitted an “amendment” to its
identification of goods in its brief:
In response to the Examining Attorney’s
requirement, [applicant] hereby amends the
description of the goods to the following: “all
natural meat products, namely, sausage, bratwurst,
meatballs, bacon, hot dogs, hamburgers, turkey,
Application No. 78478496
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ham, chicken bites, pepperoni snack sticks and
natural meals consisting of frozen meat entries
[sic]”

In her responsive brief, the examining attorney
objected to this amendment as untimely, and further
maintained that this version of applicant’s identification
of goods is also unacceptable because
the wording ‘[h]amburgers’ could refer to items in
multiple classes, e.g., hamburger sandwiches in
Class 30 or hamburger meat in Class 29. The term
‘bites’ is indefinite and the term ‘frozen meat
entries’ is a bit indefinite. In this regard, the
term “entries” appears to be a misspelling of
“entrees.”

Ex. Att. Br. n.5.
4. Discussion
We agree with the examining attorney that the amendment
proffered in applicant’s brief is untimely. Trademark Rule
2.142(d)(“The record in the application should be complete
prior to the filing of an appeal.”) If applicant desired an
opportunity to respond to the examining attorney’s final
refusal or to submit another amendment, the proper procedure
would have been to file a request for reconsideration with
the examining attorney prior to appeal or a request that the
Board suspend the appeal and remand the application for
further examination prior to briefing. Id. Accordingly,
the amendment proffered in applicant’s brief will not be
considered.
Application No. 78478496
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We further find that the examining attorney’s
requirement for amendment of the original identification of
goods and her rejection of applicant’s first proffered
amendment were both appropriate. As a general matter, “[i]t
is within the discretion of the PTO to require that one's
goods be identified with particularity.” In re Omega SA,
494 F.3d 1362, 83 USPQ2d 1541, 1544 (Fed. Cir. 2007)
(quotation marks and citation omitted).
Here, the USPTO has enunciated a policy regarding the
acceptability of words like “products”:
The identification should state common names for
goods or services, be as complete and specific as
possible and avoid indefinite words and phrases.
The terms “including,” “comprising,” “such as,”
“and the like,” “and similar goods,” “products,”
“concepts,” “like services” and other indefinite
terms and phrases are almost always unacceptable.

TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP)
§ 1402.03(a)(5th ed., 2007).
Moreover, as the examining attorney notes, terminology
that includes items in more than one class is indefinite.
TMEP § 1402.01, citing In re Omega SA, 494 F.3d 1362, 83
USPQ2d 1541 (Fed. Cir. 2007).
As the examining attorney points out in her brief, the
word “products” makes the original and amended
identification indefinite. While “meat” would have been
acceptable, a “meat product” has no understood meaning, and
may refer to anything made out of meat. For instance, as
Application No. 78478496
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the examining attorney argues, meat paste and meat pies both
seem to be “meat products,” although the former is in Class
29, while the latter is in Class 30. Because neither “meat
products” nor “all natural meat products” have a specific
meaning confined to one class, the examining attorney’s
requirement for an acceptable identification of goods was
correct.
B. Likelihood of Confusion
1. Similarity of the Marks
Applicant’s mark is GLOBAL GOURMET, while the mark in
the cited registration is THE GLOBAL GOURMET. We find these
marks to be virtually identical in appearance, sound,
meaning and commercial impression. The only difference
between them is the word “the” in THE GLOBAL GOURMET.
Applicant argues that “[w]here the common portion of
two marks is weak, otherwise minor differences in the
remaining portions could make for marks which are overall
not confusingly similar.” Applicant’s Br. at 8. Although
we have not taken judicial notice of the trademark
registrations advanced by applicant, we recognize that both
marks are suggestive of food or food-related products from
around the world. We also recognize that as a general
matter, weaker portions of marks are less likely to make a
strong impression on purchasers, and that customers are
Application No. 78478496
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likely in such cases to place more emphasis on other
elements of the mark.
The problem with applying this line of reasoning in
this case is that the only difference between these marks –
the definite article “the” at the beginning of the
registrant’s mark – is of far less significance than the
identical portion “GLOBAL GOURMET.” It is highly unlikely
that prospective purchasers would perceive “the” to have any
meaningful source-identifying function, let alone provide
enough distinctive difference between these marks to
distinguish them. The Board has had a number of occasions
to consider the significance of the article “the” in a
variety of contexts. The word has been repeatedly found to
have little or no trademark significance when used as it is
in the prior registration. See Citadel v. Army and Air
Force Exch. Serv., 21 USPQ2d 1158 (TTAB 1991) (“The marks
are clearly very much alike. Notwithstanding the fact that
opposer is always referred to by using the definite article
“THE” before the word “CITADEL”, it would be difficult to
conclude that if the parties sold similar products under
“CITADEL” and “THE CITADEL,” respectively, confusion would
not be likely.”); In re Narwood Prod., Inc., 223 USPQ 1034
(TTAB 1984)(fact that applicant’s mark includes definite
article “the” is “obviously insignificant” to likelihood of
confusion analysis); U.S. Nat. Bank of Or. v. Midwest Sav.
Application No. 78478496
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and Loan Ass’n, 194 USPQ 232, 236 (TTAB 1977)(“‘THE’ ...
adds little distinguishing matter because the definite
article most generally serves as a means to refer to a
particular business entity or activity or division
thereof....”).
We agree with applicant that the marks at issue are
suggestive, and therefore not intrinsically strong. Both
marks suggest that the respective goods and services are
rendered to customers who are (or like to think they are)
knowledgeable about food and the enjoyment of food, and that
such goods and services relate to food from around the
world. As such, the marks are not entitled to a
particularly broad scope of protection.
Nonetheless, even relatively weak marks are entitled to
protection, King Foods, Inc. v. Town & Country Food Co.,
Inc., 159 USPQ 44 (TTAB 1968), and the marks at issue are
highly similar; the only distinction between them is itself
of little or no distinctiveness. Accordingly, we conclude
that the marks are virtually identical in every meaningful
respect.
This factor strongly supports the refusal to register.
2. Channels of Trade, Classes of Purchasers, and
Limitation of Goods and Services

Applicant submitted copies of its web page and that of
the cited registrant in an effort to show the actual nature
Application No. 78478496
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of the respective goods and services, and the customers to
whom they are sold. Applicant contends that its goods
are sold to consumers in high end food markets
such as WHOLE FOODS, INC., WILD OATS and
others.... Registrant on the other hand provides
an interactive computer data base featuring
information about culinary products and services.
Registrant provides information identifying
sponsors such as AMAZON and others listed in its
website.... It is noted that retail food markets
are not identified as sponsors and thus the
Registrant’s products listed in its identification
is [sic] limited to information and not consumable
products such as all natural meat products sold
and available in food markets.

Resp. to Office action at 2.
Applicant essentially invites us to limit the
registrant’s services, as well as the channels of trade, and
the classes of customers with respect to its application and
the cited registration. However, we cannot consider its
evidence for this purpose because the identifications in
the application and the cited registration are not limited.
It is well-established that our analysis of the goods,
the channels of trade, and the classes of customers must be
determined by the identifications of goods set out in the
application and in the cited registration. Where those
goods or services are identified broadly, we must construe
them as such, even if evidence is proffered to show that the
applicant or registrant is engaged in more limited
activities than would be covered by its application or
registration. E.g., Can. Imperial Bank of Commerce, N.A. v.
Application No. 78478496
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Wells Fargo Bank, 1 USPQ2d 1813 (Fed. Cir. 1987); In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981); In re Linkvest S.A.,
24 USPQ2d 1716, 1717 (TTAB 1992). When the goods or
services are not limited, the goods must be construed to (1)
move in all of the usual channels of trade for such goods;
and (2) be purchased by the full range of potential
purchasers for goods of that type. Kalart Co., Inc. v.
Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139, 139-40 (CCPA
1958).
We therefore consider applicant’s goods without
limitation to their being sold through “high end” food
stores, and we do not consider registrant’s current
activities (even if applicant’s information is correct) to
limit the scope of the cited registration.
So considered, there is an overlap in the customers for
applicant’s goods and the registrant’s services. We must
assume that applicant’s goods are sold through such channels
as online sales, like those recited in the cited
registration. We note that the third-party registrations
submitted by the examining attorney include several which
specifically identify both meat items and online ordering
services specifically related to those goods. See
discussion at p. 16. Accordingly, we consider online
ordering services (such as the registrant’s) to be one of
the usual channels of trade for meat products (such as
Application No. 78478496
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applicant’s), and conclude that, at least to that extent,
both the class of prospective purchasers and the relevant
channels of trade overlap.
The overlapping channels of trade and classes of
customers are factors supporting the refusal to register.
3. Similarity of the Goods and Services
Applicant’s goods are “all natural meat products,”
while the services in the cited registration are identified
as follows:
Providing users of a global computer network with
access to an interactive on-line computer database
and bulletin board services featuring information
about culinary products and services; providing
on-line computerized ordering of nutritional,
culinary and food-related products and services;
providing video recordings and printed information
regarding nutritional, culinary and food-related
information that may be downloaded from a global
computer network.

a. Goods and Services are Closely Related
Among other things, the prior registration covers the
provision of “on-line ... ordering of nutritional, culinary
and food-related products and services.” The examining
attorney contends that these services would encompass the
ordering of “all natural meat products” and points out that
the record copies of pages from applicant’s web site
indicate that applicant’s goods can be ordered online.
Applicant argues that the examining attorney has read
the cited registration too broadly. Applicant notes that
the services in the cited registration are limited to
Application No. 78478496
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“culinary and food-related products,” but do not mention any
services related to food (such as applicant’s goods) itself.
Appl. Br. at 6-7. Moreover, applicant contends that the
dictionary evidence supports the conclusion that the term
“culinary” does not include food.
The various record definitions of “culinary” do not
definitively resolve this question; none of them indicates
whether “culinary,” in this context, includes food. We find
it unnecessary to resolve this dispute, because the prior
registrant’s services relate not only to “culinary and food-
related products,” but to “nutritional ... products” as
well, and this term is a clear reference to food.
Nutritional products are those which provide nutrition,
i.e., food. We therefore agree with the examining attorney
that the registrant’s services include online ordering of
“all natural meat products,” and that those familiar with
the registrant’s services would, upon encountering
applicant’s goods sold under a highly similar mark, likely
be confused as the source or sponsorship of those goods.
b. Third-Party Registrations
The examining attorney submitted a number of third-
party registrations covering applicant’s goods and those of
the cited registrant. Third-party registrations which
individually cover a number of different items and which are
based on use in commerce may serve to suggest that the
Application No. 78478496
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listed goods are of a type that may emanate from a single
source. See In re Albert Trostel & Sons, 29 USPQ2d 1783
(TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467,
1469 (TTAB 1988), aff'd (unpublished) No. 88-1444 (Fed. Cir.
Nov. 14, 1988).

Although applicant urges that its goods and the cited
registrant’s services are not significantly related, the
evidence suggests the contrary. Of the third-party
registrations submitted by the examining attorney, there are
approximately 24 which identify meat items4 on the one hand
and online services in the field of “culinary and food-
related products” on the other, e.g., Registration Nos.
2329960, 2599010, 2840193, 2329960, and two registrations
which cover both meat products and the online provision of
“culinary and food-related” information, Registration Nos.
2599010, 2832738. While such third-party registrations are
not evidence that the marks are in use, they do tend to
suggest that the goods and services are of a type which may
emanate from a single source. Consumers used to seeing, for
instance, meat and on-line ordering services coming from a
single source and under the same mark, may assume that
applicant’s “all natural meat products,” and the

4 E.g., meat, beef, ham, sausage, poultry, pork loins, deli
loafs, and hamburger. None of the third-party registrations
specifically restricts the identified meat items to “all natural
meat products,” which is understandable given the fact that
Application No. 78478496
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registrant’s online ordering and information services, sold
or offered under virtually identical marks, originate from
the same source or that the sources are otherwise
affiliated. Based on this evidence, we find that although
the goods and services at issue are not specifically the
same, they are nonetheless significantly related in the mind
of the consumer.
The related nature of the goods is a factor which
supports the refusal to register.
IV. Conclusion
After careful consideration of the entire record, we
conclude:
(1) The examining attorney’s requirement for an
amendment to applicant’s identification of goods was
appropriate, and applicant’s identification of goods is
unacceptable because it is indefinite.
(2) In view of the nearly identical marks at issue,
the related nature of applicant’s goods and opposer’s
services, and the overlapping customers for both,
applicant’s mark is likely to cause confusion.
Decision: The final requirement for a definite
identification of goods, and the refusal to register under
Trademark Act Section 2(d) are both AFFIRMED.

applicant’s identification has been found to be unacceptable.