Wednesday, August 17, 2016

Finding Institutional Chicken Related to Frozen Fish, TTAB Affirms RED LABEL 2(d) Refusal

The Board affirmed this Section 2(d) refusal to register the mark RED LABEL for "chicken for sale to foodservice institutions," finding it likely to cause confusion with the identical mark registered for "frozen fish and seafood." Applicant Tyson Foods argued that its customers are sophisticated and would distinguish between the source of goods distributed under a mark from the source of goods manufactured or produced under a mark. The Board was not impressed. In re Tyson Foods, Inc., Serial No. 86533628 (August 9, 2016) [not precedential].

Of course, the identity of the marks weighed heavily in favor of a finding of likely confusion: when the marks are identical, a lesser degree of similarity between the involved goods is needed to support a Section 2(d) bar to registration.

There could be little dispute that the goods are similar in nature, since chicken, fish, and seafood may be used interchangeably as appetizers or entrees, or in salads and sandwiches. [Really? I think they taste quite different - ed.]. Tyson, however, focused on the fact that its goods are not directed to retail consumers but to foodservice institutions, and thus involve purchasers more sophisticated than the general public.

Because applicant Tyson limited its identified class of purchasers, the only overlap in purchasers is foodservice institutions. Tyson argued that foodservice purchasers are sophisticated and exercise a high degree of care when purchasing goods. The Board agreed that "it stands to reason that institutional investors will exercise greater care in making their purchases than the general purchasing public."

Examining Attorney Brittney L. Cogan provided excerpts from various commercial websites offering chicken and fish or seafood under the same mark to foodservice institutions. She also submitted third-party registrations covering all three products sold to such institutions. Tyson, however, asserted that although these products may be distributed by the same company, sophisticated foodservice buyers "are not likely to think that such goods are manufactured or produced by the same company even if the goods are identified by the same mark."

Tyson conceded that there may be a few exceptions - i.e., entities that both manufacture or produce, and distribute, poultry and seafood to food service institutions. Moreover, it conceded that foodservice buyers "buy directly from manufacturers or wholesale distributors."

The Board concluded that some sources distribute all of these food products under the same brand, while others both produce and distribute food products. "The cited third-party evidence serves to suggest that the identified goods are of a type that emanate from a single source."

Finally, the Board observed once again that even sophisticated buyers are not immune from source confusion, especially when the marks, "as used on their identified goods, so resemble one another as to be likely to cause confusion ...." [That begs the question, doesn't it? - ed.].

And so the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlog comment: If a distributor called Joe Blow's offered to deliver chicken on one day, and the next day someone offered to sell directly seafood under the Joe Blow's mark, I would think the seafood producer and the chicken distributor service were related, wouldn't you? I can see why Tyson got knocked out.

Text Copyright John L. Welch 2016.


At 6:50 AM, Blogger Gene Bolmarcich, Esq. said...

Tyson got an earful from the Board

At 10:21 AM, Anonymous Freiburger said...

The Board cited one of its decisions from 1978 for the proposition that "chicken, fish and seafood can be used interchangeably as appetizers or entrees, or in salads and sandwiches."

But can the Board just pluck a factual finding from another case (especially one from 1978!) and "recycle" it? I don't believe it can. See, e.g., Standard Knitting Ltd. v. Toyota Jidosha Kabushiki Kaisha, 77 U.S.P.Q.2d 1917, 1931 n.24 (T.T.A.B. 2006) (cases cited in support of argument that goods are related “cannot be relied on by opposer as proof of the facts found therein.”). And if the Board *could* rely on factual findings from other cases, there would be no need to require the pro forma submission of evidence from examining attorneys that various alcoholic beverages are related, as the Board could simply cite to the many cases in which it has made such a finding.

At 10:55 AM, Blogger EMeltzer said...

This comment has nothing to do with the merits of the decision. Rather, it's a groan in response to Mr. Welch's irresistible remark, "I can see why Tyson got knocked out."

At 11:30 AM, Anonymous Anonymous said...

The most disturbing portion of the decision deals with the evidentary issue. Based on the text of the decision as described by the Board, the examiner submitted screenshots from Tyson's website to show that chicken and seafood may emanate from the same source (although it "does" emanate from the same source in this situation). Tyson is now allowed to submit any additional screenshot from the company's entire website based on the principles from In re Bed & Breakfast Registry, which deals with printed publication. This seems to be an overreaching interpretation of the decision as the information contained in an entire website is less accessible and far more malleable than a printed publication. According to the Board, "The Examining Attorney had the opportunity to review the suppliers’ entire websites." Really? Has the Board never seen the information on a website? Its like saying that if you pull a book from the library, every book in the library is fair game as the examiner could have reviewed any of those.

At 12:01 PM, Blogger Brad Salai said...

I'm not sure how they expected the sophisticated purchaser argument to succeed here. The marks are IDENTICAL so a sophisticated purchase would have to think that chicken and fish were never sold by the same source and there was evidence that they are. The sophisticated purchaser argument only works when there is some difference that a casual purchaser might not notice, and there was nothing like that here.
The board didn't even take judicial notice that everything tastes like chicken...
To me, this never had a chance.


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