Response to Office Action

            Applicant has amended its goods description to clarify that the soil amendment is for use in connection with grass turf areas.  Applicant respectfully suggests that with the proposed amendment, confusion with the prior registration number 2,269,373 for corn seeds is not likely.

            If the goods or services in question are not related or marketed in such a way that they would not be encountered by the same persons in situations that would create the incorrect assumption that they originate from the same source, then, even if the marks are identical, confusion is not likely.  See, e.g., Shen Manufacturing Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350 (Fed. Cir. 2004) (cooking classes and kitchen textiles not related, even though a kitchen textile may be used in a cooking class).

            In this case, the prior registration is limited to corn seeds.  With Applicant's amendment, the present application is now limited to soil amendments for turf grass areas.  It no longer covers the broader agricultural field.  Although it is true that soil amendments are sometimes sold along with seeds, the general agricultural field is a large one and nothing in the documents provided by the Examining Attorney suggest that corn seeds are sold in conjunction with soil amendments intended to be used with grass turf areas.  Moreover, given the nature of the differences in the goods, the purchasers of corn seed are likely to be different that the purchases of soil amendments for turf grass areas.  See also, In re Coors Brewing Co., 343 F.3d 1340, 1345, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003) (no likelihood of confusion between applicant's BLUE MOON and design for beer and the registered mark BLUE MOON and design for restaurant services)

            The Examining Attorney did not address Applicant's prior arguments regarding the sophistication of the purchasers.  Applicant respectfully suggests that these arguments are even more applicable where the potential purchasers operate in distinct fields within the agricultural market, namely corn crops and turf grass. 

            Applicant respectfully submits that, with the amendment to the goods description, there exists no potential likelihood of confusion between its mark and the cited registration. Accordingly, Applicant respectfully requests that the Examining Attorney approve the application for publication. Applicant reserves the right to respond to any future arguments raised by the Trademark Office, with regard to likelihood of confusion or any other rejection or refusal.