Test Your TTAB Judge-Ability: Do You Have a Beef with This Section 2(d) Decision?
Applicant Ridgefield Farm sought to register the logo mark shown below, for beef [BEEF and REAL BEEF disclaimed]. The Examining Attorney refused registration in light of the registered mark RAISED RIGHT for "poultry, meat and game." Of course, the goods are considered legally identical, and the Board then presumed that they travel in the same, normal channels of trade to the same classes of consumers. But what about the marks? Are they confusingly similar? Remember that when the goods are identical, a lesser degree of similarity is necessary to support a finding of likely confusion. In re Ridgefield Farm LLC, Serial No. 77758560 (February 25, 2011) [not precedential]
The Board pointed out that the test is not whether the marks can be distinguished in a side-by-side comparison. "The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks." It concluded that, on balance, the similarities outweighed the differences:
Registrant's mark “RAISED RIGHT” is incorporated in full in applicant’s mark. The phrase, “REAL BEEF • RAISED RIGHT • AROUND HERE” in sight and sound is several syllables/words longer than the mark in the cited registration. However, the term “RAISED RIGHT,” set off by raised dots, is a visually significant part of applicant's mark and it creates an impression apart from the other wording. Furthermore, the term “RAISED RIGHT” is significant in creating the commercial impression of applicant's mark as a whole. It is displayed prominently in the top portion of applicant's mark directly above the image of a cow, and it gives the same connotation and commercial impression as registrant's mark, both suggesting beef (or meat) from cattle that have been raised in the right manner.
Finally, the Board noted that the involved goods are "staple, relatively inexpensive items that may be subject to impulse purchases."
And so the Board affirmed the refusal
TTABlog comment: So what do you think? Do you agree that RAISED RIGHT creates a separate commercial impression? Doesn't it go with AROUND HERE, to create a double entendre? RAISED RIGHT and RAISED RIGHT AROUND HERE?
Text Copyright John L. Welch 2011.