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 In re Ridgefield Farm LLC, Serial No. 77758560 (February 25, 2011) [not precedential]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.
posted by John L. Welch @ 3/17/2011
6 comments
6 Comments:
Ridiculous decision by the TTAB.
I was surprised that neither the Board nor the examining attorney really grasped the nettle of the applicant's argument that the mark was a double entendre. When I first saw the mark, I thought it read "REAL BEEF RAISED RIGHT AROUND HERE" meaning that BRASSTOWN BEEF's meat was locally raised unadulterated beef. This would seem to be a different commercial impression than just RAISED RIGHT, which refers to just the conditions in which the cattle were raised.
Apparently for the Board and the examining attorney, the use of the two dots between BEEF and RAISED and RIGHT and AROUND fatally foreclosed the reading as a double entendre. So can the applicant file a new application omitting the dots?
Robert P.
You seem to have beef with this decision. If not, I'd ask where's the beef?
Even with the dots, I don't see how any reasonable consumer is going to perceive the individual clauses as discrete terms but not also see the clear double entendre created by the phrase REAL BEEF RAISED RIGHT AROUND HERE as a whole. The commercial impressions of the marks are arguably distinct even without the enormous brown cow and BRASSTOWN BEEF text in the middle of the applicant's mark.
Nah - I agree with the TTAB. The "Raised Right" is positioned in the graphic in a way that might grab the eye of an overworked, hurried, exhausted shopper. Sure, a reasonable person would see the difference, but in a grocery store, it's more about get in, get out, and get home. Many times I've ended up with the wrong product for simply because I made a hurried, impulsive grab.
This is one of the most esoteric analyses I've seen on an issue like this.
That tells me something's probably wrong.
But I could be wrong.
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