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.].
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.
I hope Monrovia appeals. These kinds of refusals are becoming common in class 31 and are often (in my view) nonsensical. I can relate almost any two products by saying they are both available at Walmart. The question is whether confusion is LIKELY, not whether some relationship can be inferred.
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