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The USPTO refused registration of the mark SAVORY
ROASTERS for "pet food; pet treats" [SAVORY
disclaimed], deeming the mark likely to cause confusion with the
registered mark HEARTY ROASTERS for "pet
food." Applicant argued that ROASTERS is "clearly
designed to be suggestive of the goods," and thus is not the
dominant portion of the marks. How do you think this appeal came
out? In re DPC Pet Specialties LLC, Serial No.
86951910 (June 6, 2018) [not precedential] (Opinion by Judge Linda
Kuczma).
The Goods: Because the goods are in part
identical, those overlapping goods must be presumed to travel
through the same, normal channels of trade to the same classes of
purchasers. Moreover, as to applicant's pet treat products,
Examining Attorney Gidette Cuello submitted evidence showing the
same entity commonly manufactures or sells pet treats and pet food
under the same mark. Thus these factors strongly favored a finding
of likelihood of confusion.
The Marks: The Board found that the terms
SAVORY and HEARTY do not detract from the similarities of the
marks. Both words are adjectives used to favorably describe food or
its attributes. While the two words may have different
connotations, they have little, if any, source-identifying
significance because they are descriptive or highly suggestive of
pet food products - as reflected in applicant's disclaimer of
SAVORY and as evidenced by the submitted dictionary
definitions.
Applicant argued that "the shared element of the mark[s] -
ROASTERS - is clearly designed to be suggestive of the goods being
sold," and therefore that the Examining Attorney was wrong in
concluding that ROASTERS is the dominant portion of applicant's
mark.
The Board observed that it must consider the marks in their
entireties. Although the leading descriptive elements in the marks
differ visually and aurally, "consumers familiar with
Registrant's HEARTY ROASTERS pet food may well conclude that
Applicant's SAVORY ROASTERS pet food and pet treats are a new
line of pet food from the maker of HEARTY ROASTERS pet
food."
Moreover, the Board observed once again, when the goods of the
parties are identical or as closely related, a lesser degree of
similarity between the marks is necessary to support a finding of
likely confusion.
The Board concluded that the marks are sufficiently similar in
appearance, sound, connotation, and commercial impression for
confusion to be likely.
And so the Board affirmed the Section 2(d) refusal.
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