IP Law Daily, TRADEMARK—TTAB: ELLA FRESH mark was likely to cause confusion with registered mark ELLA ROSE FARM, (Jul 22, 2022)

By Kevin M. Finson, J.D.

The marks were very similar marks used with related goods.

A seller of fruits and vegetables was unable to show that its proposed mark ELLA FRESH mark and design would not cause confusion with the registered ELLA ROSE FARM mark, the Trademark Trial and Appeal Board has held. The marks were similar, were used with related goods, and flowed to similar classes of consumers through the same trade channels (In re Innova Agri Bio Park Ltd., July 7, 2022, Greenbaum, C.).

Innova Agri Bio Park, Limited (Innova) sought registration on the Principal Register of the mark ELLA FRESH and an associated design for use with fresh fruits and vegetables in International Class 31. The Examining Attorney refused registration on the ground of likelihood of confusion with the registered mark ELLA ROSE FARM for use with several varieties of rose-related goods, including edible flowers in International Class 31. Innova appealed. The Board applied the DuPont factors for which there was evidence of record.

Strength of the marks. Innova argued that the term ELLA was a weak term not entitled to a broad scope of exclusivity because it was widely used. However, it was only able to provide evidence of registrations of Ella-formative marks, not evidence of any actual use. The Board held that this did not show weakness of the marks.

Similarity of the marks. The Board found that the marks were very similar because of the shared dominant element ELLA. The design element of the proposed mark would produce far less of an impression on the customer than the words, which were shared with the exception of descriptive elements.

Similarity of goods and channels of trade. Although the goods were not the same, the Examining Attorney showed several websites from sellers of both fresh vegetables and flowers, which demonstrated that members of the public would expect the goods to emanate from the same source. The same evidence showed that they would travel through the same channels of trade because neither the registration nor the application specified any limitations to channels of trade or classes or consumers.

Actual confusion. Innova argued that the marks had coexisted without any evidence of actual confusion. The Board held that there was no evidence of any opportunity for such confusion, so this factor was neutral.

Balancing these factors, the Board held that there was a likelihood of confusion and affirmed the refusal to register.

The Case is Serial No. 88489477.

Attorneys: Deborah A. Wilcox (Baker & Hostetler LLP) for Innova Agri Bio Park Ltd. Jeffrey Oakes for the USPTO.

Companies: Innova Agri Bio Park Ltd.

Cases: Trademark USPTO