To: | McCormick & Company, Incorporated (TMDocket@mofo.com) |
Subject: | U.S. Trademark Application Serial No. 88791983 - GROWN FOR GOOD MC - 274149366000 |
Sent: | April 29, 2020 01:11:13 PM |
Sent As: | ecom122@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 Attachment - 18 Attachment - 19 Attachment - 20 Attachment - 21 Attachment - 22 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88791983
Mark: GROWN FOR GOOD MC
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Correspondence Address:
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Applicant: McCormick & Company, Incorporated
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Reference/Docket No. 274149366000
Correspondence Email Address: |
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NONFINAL OFFICE ACTION
The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will be abandoned. Respond using the Trademark Electronic Application System (TEAS). A link to the appropriate TEAS response form appears at the end of this Office action.
Issue date: April 29, 2020
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issues below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION
Applicant’s mark is GROWN FOR GOOD & Design for, inter alia, “Processed herbs, spices, spice blends, seasonings, seasoning blends, and seasoning mixes; seasoning mixes and roasting bags combined in unitary packages; salt, seasoned salt, salt substitutes; pepper, extracts, not essential oils, used as food flavorings; marinades and marinade mixes; seasoned coatings for food, namely, frying mixes, breaders, batters, and batter mixes; gravy mixes; condiments, namely, tartar sauce, seafood cocktail sauce, sauces, excluding apple and cranberry, and sauce mixes; meat tenderizer; spaghetti sauce mix,” in International Class 030.
Registrant’s mark is GROWN FOR GOOD for “coffee,” in International Class 030.
Standard of Law
Although not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis: (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services. See In re i.am.symbolic, llc, 866 F.3d at 1322, 123 USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co.,544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”); TMEP §1207.01.
(1) Deleting the class to which the refusal pertains;
(2) Filing a Request to Divide Application form (form #3) to divide out the goods and/or services that have not been refused registration, so that the mark may proceed toward publication for opposition in the classes to which the refusal does not pertain. See 37 C.F.R. §2.87. See generally TMEP §§1110 et seq. (regarding the requirements for filing a request to divide). If applicant files a request to divide, then to avoid abandonment, applicant must also file a timely response to all outstanding issues in this Office action, including the refusal. 37 C.F.R. §2.87(e).; or
(3) Amending the basis, if appropriate. TMEP §806.03(h). (The basis cannot be changed for applications filed under Trademark Act Section 66(a). TMEP §1904.01(a).)
Comparison of the Marks
Applicant’s mark is GROWN FOR GOOD & Design. Registrant’s mark is GROWN FOR GOOD.
Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); TMEP §1207.01(b)-(b)(v). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d per curiam, 777 F. App’x 516, 2019 BL 343921 (Fed. Cir. 2019); TMEP §1207.01(b).
Although marks are compared in their entireties, one feature of a mark may be more significant or dominant in creating a commercial impression. See In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224 USPQ 749, 751 (Fed. Cir. 1985); TMEP §1207.01(b)(viii), (c)(ii).
In addition, the word portion of the mark is the dominant portion of the mark because when evaluating a composite mark consisting of words and a design, the word portion is normally accorded greater weight because it is likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the goods and/or services. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)); TMEP §1207.01(c)(ii). Thus, although marks must be compared in their entireties, the word portion is often considered the dominant feature and is accorded greater weight in determining whether marks are confusingly similar, even where the word portion has been disclaimed. In re Viterra Inc., 671 F.3d at 1366-67, 101 USPQ2d at 1911 (citing Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1570-71, 218 USPQ2d 390, 395 (Fed. Cir. 1983)).
In addition, the fact that applicant’s mark contains design elements does not distinguish the marks because registrant’s mark is in standard characters. A mark in typed or standard characters may be displayed in any lettering style; the rights reside in the wording or other literal element and not in any particular display or rendition. See In re Viterra Inc., 671 F.3d 1358, 1363, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); 37 C.F.R. §2.52(a); TMEP §1207.01(c)(iii). Thus, a mark presented in stylized characters and/or with a design element generally will not avoid likelihood of confusion with a mark in typed or standard characters because the word portion could be presented in the same manner of display. See, e.g., In re Viterra Inc., 671 F.3d at 1363, 101 USPQ2d at 1909; Squirtco v. Tomy Corp., 697 F.2d 1038, 1041, 216 USPQ 937, 939 (Fed. Cir. 1983) (stating that “the argument concerning a difference in type style is not viable where one party asserts rights in no particular display”).
Therefore, the marks have closely similar appearances, sound, meanings, and overall commercial impressions, such that this factor weighs in favor of a likelihood of confusion.
Comparison of the Goods and Services and Trade Channels
Applicant’s goods are “Processed herbs, spices, spice blends, seasonings, seasoning blends, and seasoning mixes; seasoning mixes and roasting bags combined in unitary packages; salt, seasoned salt, salt substitutes; pepper, extracts, not essential oils, used as food flavorings; marinades and marinade mixes; seasoned coatings for food, namely, frying mixes, breaders, batters, and batter mixes; gravy mixes; condiments, namely, tartar sauce, seafood cocktail sauce, sauces, excluding apple and cranberry, and sauce mixes; meat tenderizer; spaghetti sauce mix,” in International Class 030. Registrant’s goods are “coffee,” in International Class 030.
Applicant’s and Registrant’s Goods and/or Services Are Related
Here, applicant’s goods/services and registrant’s goods/services are related because they are commonly offered by the same companies under the same mark and sold through the same trade channels to the same consumers. Therefore, consumers are accustomed to these goods/services emanating from the same source.
The attached Internet evidence, consisting of http://shop.flycreekcidermill.com/condiments-grilling/spices-rubs.html and http://shop.flycreekcidermill.com/cider-beverages/coffee-tea-cocoa.html, http://www.margaritavillefoods.com/products.html?category=67 and http://www.margaritavillefoods.com/products.html?category=66, http://shurfineinspires.com/product-category/coffee/ and http://shurfineinspires.com/product-category/condiments/, establishes that the same entity commonly manufactures, produces, or provides the relevant goods and/or services and markets the goods and/or services under the same mark. Thus, applicant’s and registrant’s goods and/or services are considered related for likelihood of confusion purposes. See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB 2009).
Therefore, applicant’s goods and/or services are related to registrant’s goods and/or services which weighs in favor of a likelihood of confusion.
Conclusion
In sum, the similarities between the marks’ appearances, sounds, meanings, and overall commercial impressions combined with the close relationship between the goods and/or services results in a likelihood of confusion and registration is refused under Section 2(d) of the Trademark Act.
AMENDED DESCRIPTION OF MARK REQUIRED
The following description is suggested, if accurate: The mark consists of the words “GROWN FOR GOOD” in an arch, with single shaded leaves below the “G” in “GROWN” and the “D” in “GOOD,” above a shaded circle featuring a stylized hand below three shaded leaves, all above the letters “MC” in stylized lettering with the top of the letter “M” overlapping the bottom of the shaded circle in an unshaded rectangular cut-out. The colors black, white, and/or gray represent background, outlining, shading, and/or transparent area and is/are not part of the mark.
REQUIREMENT -- IDENTIFICATION OF GOODS AND SERVICES
Applicant may substitute the following wording, if accurate:
International Class 029
Soup mixes; dip mixes; processed onions, garlic, peppers and edible seeds, not being seasonings or flavorings; salad toppings, namely, formed, textured vegetable protein bits having a bacon flavor for use as a meat substitute; dehydrated vegetables; dairy-based food beverage mixes; fruit-based spreads.
International Class 030
Processed herbs, spices, spice blends, seasonings, seasoning blends, and seasoning mixes; seasoning mixes and roasting bags combined in unitary packages; salt, seasoned salt, salt substitutes; pepper, extracts, not essential oils, used as food flavorings; marinades and marinade mixes; seasoned coatings for food, namely, frying mixes, bread mixes, batters and batter mixes for fried food; gravy mixes; condiments, namely, tartar sauce, seafood cocktail sauce, sauces, excluding apple and cranberry, and sauce mixes; meat tenderizer for household purposes; spaghetti sauce mix.
International Class 035
Providing business information via a website featuring informational reports regarding flavor trends and flavor solutions for using making business decisions; preparing business reports about sustainability initiatives and local community impact.
International Class 041
Providing a website featuring non-downloadable publications in the nature of reports in the field of flavor trends and flavor solutions.
International Class 043
Providing a database in the field of recipes and cooking information; providing a website featuring information promoting fair
trade sustainability practices within food supply chains [this wording must be clarified]; business reports about sustainability initiatives and local community
impact [business reporting should be in International Class 035].
For assistance with identifying and classifying goods and services in trademark applications, please see the USPTO’s online searchable U.S. Acceptable Identification of Goods and Services Manual. See TMEP §1402.04.
Response guidelines. For this application to proceed, applicant must explicitly address each refusal and/or requirement in this Office action. For a refusal, applicant may provide written arguments and evidence against the refusal, and may have other response options if specified above. For a requirement, applicant should set forth the changes or statements. Please see “Responding to Office Actions” and the informational video “Response to Office Action” for more information and tips on responding.
The USPTO does not accept emails as responses to Office actions; however, emails can be used for informal communications and are included in the application record. See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.
How to respond. Click to file a response to this nonfinal Office action.
/Jeff Molinoff/
Jeffrey S Molinoff
US Patent & Trademark Office
Examining Attorney
Law Office 122
571.272.7290
jeffrey.molinoff@uspto.gov
RESPONSE GUIDANCE