Friday, June 12, 2020

TTABlog Test: Is "BARE" for Sausage Confusable with "JUST BARE" for Poultry?

The USPTO refused to register the mark BARE for "skinless beef sausage, skinless pork sausage; beef; pork; hamburger; beef snack sticks; processed pork, veal and beef," finding a likelihood of confusion with the registered mark JUST BARE, in standard character and design form (below), for poultry and processed chicken. Applicant Mello Meats argued that the word JUST distinguishes the two marks, and as to the goods, there are many entities that register and use their marks for only one type of meat product. How do you think this came out? In re Mello Meats Inc., Serial No. 87624232 (June 8, 2020) [not precedential] (Opinion by Judge Jonathan Hudis).

The Marks: Examining Attorney Christine Martin maintained that the marks BARE and JUST BARE are similar in sound, appearance, and commercial impression. Consumers are likely to view applicant's mark, with the elimination of the word "JUST," as a variation of the cited mark. As to the cited word-plus-design mark, the words JUST BARE are the dominant portion.

Mello Meats argued that the words "bare" and "just" each have a number of different meanings, "so there is absolutely no way that the Examining Attorney can know which connotation is implied to each of the cited registrations and then the applied-for registration to say that they have similar connotations." Furthermore, the inclusion of the word "JUST" in the cited marks suffices to distinguish them from applicant's mark. The Board disagreed.

We thus find that the marks BARE and JUST BARE appear and sound similar in that they share the dominant term “BARE,” notwithstanding the addition of the term “JUST” in Registrant’s standard character mark as well as the additional design features in Registrant’s JUST BARE and Design mark.

The meanings of connotations of the marks must be considered in the context of the goods. “BARE” suggests the goods have nothing added (such as filler or meat byproducts). “JUST” could mean “only” or “simply. – "[T]ogether, JUST BARE could suggest simply (or only) chicken or poultry,
nothing else. These are the only definitions of 'BARE' and 'JUST' that make sense in context." And so the Board concluded that the marks have similar meanings. The design element in the cited mark does not outweigh the similarities in the literal portion of the mark with applicant's mark.

The Goods: The Examining Attorney submitted copies of 20 third-party use-based registrations, each covering both Applicant’s goods and the goods listed in the cited registrations. She also submitted excerpts from 16 websites, each showing the promotion and sale of both types of goods under the same mark. The Board found that this evidence amply establishes the relatedness of the involved goods.

Mello Meats feebly attempted to distinguish its goods by arguing that: (1) there are just as many trademark registrations for only one type of meat product as there are trademark registrations for multiple types of meat products, including poultry and chicken, and (2) there are multiple online locations that only sell one type of meat product in addition to those (made of record by the Examining Attorney) that sell multiple types of meat products, including poultry and chicken. The Board was unmoved:

Merely because some companies register or promote their marks in connection with one type of meat product does not mean we can simply ignore the plethora of evidence made of record by the Examining Attorney showing the registration and promotion of many companies’ marks in connection with multiple types of meat products including beef, pork, poultry and chicken (including processed chicken).

Trade Channels and Consumers: Since there are no restrictions in the application or cited registrations, the goods must be presumed to travel in their normal channels of trade. The third-party website evidence  shows that the involved goods may be found in the same virtual marketplace, available to all relevant classes of purchasers. Mello Meats conceded that these goods may be found in the same store.

Purchaser Sophistication: The Board's decision on likelihood of confusion must be based upon the least sophisticated potential purchasers. Purchasers of poultry and meat products are ordinary consumers who are not likely to exercise a higher degree of care. In any event, when the goods are related and the marks similar, even discerning consumers are not “immune from trademark confusion.” The Board considered this DuPont factor to be neutral.

Conclusion: Finding that the first, second, and third DuPont factors favor a finding of likelihood of confusion, the Board affirmed the refusal.

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TTABlogger comment: Is this a WYHA?

Text Copyright John L. Welch 2020.


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