TTABlog Test: Are Live Plants Related to Fresh Vegetables for Section 2(d) Purposes?

The USPTO refused to register the proposed mark COLORIFIC for "Live plants, namely, Echinacea and excluding fresh vegetables, for sale online and in garden centers and mass merchants," finding confusion likely with the identical mark registered for "fresh vegetables." Applicant Monrovia argued that its plants are "purely ornamental in nature" and not meant for consumption, that its echinacea plants are sold from its own website, that it does not sell fresh vegetables, and that the garden centers and mass merchants that buy applicant’s live echinacea plants typically do not sell fresh vegetables. How do you think this appeal came out? In re Monrovia Nursery Company, Serial No. 88559348 (March 18, 2021 [not precedential] (Opinion by Judge Elizabeth A. Dunn).

Of course, the Board holds that when the marks are identical, a lesser degree of relatedness between the goods is needed to support a Section 2(d) refusal. [Does this make sense? - ed.]. The Board found an "inherent relationship" between live plants and fresh vegetables. It took judicial notice that echinacea is  “the dried rhizome, roots, or other parts of any of three purple coneflowers that are used primarily in dietary supplements and herbal remedies for the stimulating effect they are held to have on the immune system." Since vegetables are the edible parts of plants, "it is clear not only that Applicant’s goods and the registered goods are inherently related as plant products, but they are functionally related as plant products beneficial to humans, either as herbal remedies or food." [That seems to be a stretch - ed.].

echinacea (coneflower)

As usual, the USPTO turned to third-party registrations and uses to show that the involved goods travel in the same channels of trade. Examining Attorney Claudia Garcia submitted three use-based third party registrations covering both vegetables and live plants. [Only three? color me unimpressed. - ed.]. She also submitted fourteen examples of retailers selling both live plants and vegetables. [Seems like every grocery store I (used to) frequent sells both. - ed.]. 

The Board pooh-poohed Monrovia's arguments, noting that echinacea plants are edible, at least in part. Also, the evidence showed that the channels of trade actually overlap, and in any case there is no restriction in the cited registration as to channels of trade.

Although the Board would have preferred a "deeper record," it nonetheless found confusion likely and it affirmed the refusal.

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TTABlogger comment: We grow coneflowers on Cape Cod. (pictured above). I never mistook them for vegetables

Text and coneflower photo Copyright John L. Welch 2020-2021.