Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 UNITED FOODS, INC.
J. R. SIMPLOT COMPANY
August 31, 1987
Hearing: May 14, 1987
Opposition No. 72,437 to application Serial No. 521,402 filed February 8, 1985.
Cooper, Dunham, Clerk, Griffin & Moran for United Foods, Inc.
Jones, Tullar & Cooper, P.C. for J. R. Simplot Company
Before Sams, Rice and Krugman
An application has been filed by J. R. Simplot Company to register QUICK 'N CRISPY (CRISPY disclaimed) as a trademark for frozen potatoes. [FN1]
Registration has been opposed by United Foods, Inc. on the ground that applicant's mark so resembles opposer's previously used and registered marks QUICK 'N CHEESY (CHEESY disclaimed) for frozen vegetables, [FN2] QUICK 'N BUTTERY (BUTTERY disclaimed) for frozen peas, corn, broccoli cuts and mixed vegetables [FN3] and QUICK 'N SAUCY (SAUCY disclaimed) for frozen mixed vegetables [FN4] as to be likely, when applied to applicant's goods, to cause confusion mistake or to deceive.
Applicant, in its answer to the opposition, has denied the salient allegations therein.
The record consists of the pleadings, the file of applicant's application, applicant's answers to opposer's interrogatories relied on by opposer, opposer's answers to applicant's interrogatories relied on by applicant, a number of official records of the Patent and Trademark Office consisting of third-party registrations relied on by applicant, an official record of the Patent and Trademark Office relied on by opposer during its rebuttal testimony period and the testimony deposition (and exhibits) taken by opposer of W. Donald Dresser, its vice president of business development. Both parties have filed a brief on the case and opposer has filed a reply brief. Both parties were represented at an oral hearing held before this panel.
There is no issue of priority in this case in view of opposer's introduction into the record of its three pleaded registrations in connection with the testimony deposition of Mr. Dresser. The only questions to be determined, then, are whether the respective marks are sufficiently similar and the goods sufficiently related as to result in a likelihood of confusion from the contemporaneous use of said marks in connection with the goods, for purposes of Section 2(d) of the Trademark Act.
Turning first to the goods, while the frozen vegetables actually sold by opposer under its various trademarks are specifically different from applicant's frozen potatoes, the likelihood of confusion question must be determined by analyzing the marks as applied to the goods as recited in the application vis-a-vis the goods in the registration and not by what evidence or argument shows those goods to be. See: Hecon Corporation v. Magnetic Video Corp., 199 USPQ 502 (TTAB 1978). In this regard, applicant's 'frozen potatoes' are encompassed by the recitation 'frozen vegetables' recited in opposer's QUICK 'N CHEESY registration. Moreover, frozen potatoes are, in our view, closely related goods to opposer's frozen mixed vegetables of the type recited in opposer's QUICK 'N BUTTERY and QUICK 'N SAUCY registrations. All of the foregoing products would ordinarily be sold through the same channels of trade to the same classes of customers under the same marketing conditions. Applicant's frozen potatoes and the various frozen vegetables sold by opposer would all be purchased as an accompanying side dish to an entree and we conclude that the respective goods are sufficiently related such that their marketing under the same or similar trademarks would be likely to cause confusion as to source or sponsorship.
*2 Turning to the marks, they all share the identical term 'QUICK 'N' and they all include a descriptive term which has been disclaimed apart from the mark as a whole. Opposer argues that the 'QUICK 'N' portion of the marks is entitled to more weight in determining likelihood of confusion since the remaining portions of the marks are descriptive terms which have little, if any, source-indicating significance and that the marks, taken in their entireties, create the same commercial impressions. Applicant counters by pointing to some 160 third-party registrations made of record herein in the food field which include the term 'QUICK' (or variants) and argues that the existence of the prefix 'QUICK 'N' cannot be the basis for finding likelihood of confusion herein.
It is clear that third-party registrations, without evidence of actual use, are of extremely limited value in the determination of the question of likelihood of confusion. Nevertheless, third-party registrations are entitled to some weight when they are offered to show the sense in which a term, word, prefix or other feature of a mark is used in ordinary parlance. They may show that a particular term has descriptive or suggestive significance as applied to certain goods or services. See, generally, Sams: Third Party Registrations in TTAB Proceedings, 72 TMR 297 (1982). See also: Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693 (CCPA 1976). As the Court stated in that case, third-party registrations are entitled to weight to show the meaning of a mark in the same way that dictionaries are used.
In the present case, even without the third-party registrations, it is obvious that the term 'QUICK' (or any phonetic equivalent) as used in connection with food products, including frozen vegetables and frozen potatoes, is a highly suggestive term indicating that the food item in connection with which the term is used, may be prepared swiftly or rapidly. The existence of numerous third party registrations in the food field for marks which include QUICK as a portion thereof, (including a number of marks which include 'QUICK ' N'), buttresses this conclusion and these registrations are entitled to some weight for that purpose.
Accordingly, while each of opposer's marks as well as applicant's mark suggests the concept of swiftness of preparation, we do not think this common element is sufficient to warrant a finding of likelihood of confusion where, as here, the common element is a highly suggestive term which has frequently been adopted by others as part of a mark and where the marks as a whole are visually and aurally distinguishable. We find the respective marks involved herein to be extremely weak and highly suggestive and we conclude that the addition of the CRISPY suffix to applicant's mark is sufficient to distinguish it from any and all of opposer's marks, notwithstanding the fact that the distinguishing portions of the marks have been disclaimed.
*3 We note that evidence of the fame of a party's mark for its goods will often outweigh evidence of third party registrations for marks which include a certain term or evidence of inherent weakness of a term. See: Conde Nast Publications, Inc. v. American Greetings Corp., 329 F.2d 1012, 141 USPQ 249 (CCPA 1964). However, in the present case, opposer's use of its frozen vegetable products under its three marks has been extremely limited, with only some 900 cases sold in 1984 and 1985 and less than $5,000 spent in 1984 and 1985 to promote the products sold under the marks. Moreover, opposer has neither claimed nor offered any proof that its three marks are promoted or recognized as a 'family' of marks.
Finally, opposer's argument that the trade dress of applicant is similar to opposer's trade dress is not well taken in a proceeding such as this which must determine likelihood of confusion based on the mark as presented in the drawing in applicant's application.
For the foregoing reasons, we conclude that opposer's marks, when taken in their entireties, do not so resemble applicant's mark as to result in likelihood of confusion when used on related food products.
Decision: The opposition is dismissed.
J. D. Sams
J. E. Rice
G. D. Krugman
Members, Trademark Trial and Appeal Board
FN1. Application Serial No. 521,402 filed February 8, 1985.
FN2. Registration No. 1,282,683 issued June 19, 1982.
FN3. Registration No. 1,301,968 issued October 23, 1984.
FN4. Registration No. 1,302,889 issued October 30, 1984.