                       NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit
                                        2009-1139
                                 (Serial No. 77/001,674)




                     IN RE NORTHLAND ORGANIC FOODS CORP.




       Michael E. Florey, Fish & Richardson P.C., of Minneapolis, Minnesota, for appellant.
With him on the brief was Jana L. France.

      Raymond T. Chen, Solicitor, Office of the Solicitor, United States Patent and
Trademark Office, of Alexandria, Virginia, for the Director of the United States Patent and
Trademark Office. With him on the brief were Thomas L. Stoll and Christina J. Hieber,
Associate Solicitors.


Appealed from: United States Patent and Trademark Office
               Trademark Trial and Appeal Board
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit


                                         2009-1139
                                  (Serial No. 77/001,674)




                     IN RE NORTHLAND ORGANIC FOODS CORP.




Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal
Board.
                          ___________________________

                                DECIDED: July 8, 2009
                            ___________________________

Before NEWMAN, CLEVENGER, and BRYSON Circuit Judges.


NEWMAN, Circuit Judge.

       Northland Organic Foods Corp. (Northland) seeks registration on the Principal

Register of the mark SEED TO PLATE and associated design, for various goods and

services. The examining attorney in the United States Patent and Trademark Office (PTO)

refused Northland’s application on the ground that the mark is likely to be confused with the

registered service mark SEED TO PLATE A COMMUNITY PARTNERSHIP IN CARING in

International Class 41, Registration No. 3,047,968, issued January 24, 2006 (the ‘968
mark). The Trademark Trial and Appeal Board (TTAB or Board) upheld the examining

attorney’s rejection 1 , and we affirm.

                                          BACKGROUND

         On September 18, 2006, Northland filed trademark application Serial No. 77/001,674

seeking to register the mark SEED TO PLATE and the associated design:




for various goods and services in a number of International Classes. The examining

attorney refused registration based on likelihood of confusion for the following classes of

goods and services: “books, magazines, newsletters and circulars, all on the subject of

information relating to environmentally sound and sustainable agricultural practices and the

production of organic and non-GMO [Genetically Modified Organisms] crops; printed

recipes distributed individually; and art prints” in International Class 16; “educational

information relating to agricultural research namely, research relating to environmentally

sound and sustainable agricultural practices and the production of organic and non-GMO

crops” in International Class 42; and “educational information relating to agricultural advice

namely, advice relating to environmentally sound and sustainable agricultural practices and

the production of organic and non-GMO crops” in International Class 44. 2 The examining


         1
               In re Northland Organic Foods Corp., Serial No. 77001674 (TTAB Sept. 29,
2008).
         2
              Northland also applied for registration for goods in International Classes 5 and
29. They are not at issue on this appeal. Northland, Serial No. 77001674, Board op. at 3
n.2 (“The refusal to register applied to the goods in International Classes 5 and 29 based


2009-1139                                     2
attorney determined that Northland’s mark is likely to be confused with the registered ‘968

mark




for “educational services, namely, conducting classes, seminars and workshops in the field

of planting, growing and harvesting crops” in International Class 41, 15 U.S.C. §1052(d). 3

The examining attorney found that the two marks have the same dominant literal element

SEED TO PLATE and that the associated designs do not sufficiently distinguish the marks.

The examining attorney also found that the two marks have similar potential purchasers

including crop growers and farmers and that the marks are likely to have the same general

commercial impression on these potential purchasers.




on requirement for more definite identifications has been withdrawn. In view thereof,
regardless of the outcome regarding the specified goods and services at issue in this
appeal, a notice of allowance may be issued for applicant’s mark for at least the remaining
goods in the application.”) (citing Trademark Rule 2.65(a)).
       3
             15 U.S.C. §1052(d) (entitled “Trademarks registrable on principal register;
concurrent registration”) provides, in relevant part:

       No trademark by which the goods of the applicant may be distinguished from
       the goods of others shall be refused registration on the principal register on
       account of its nature unless it—
       ***
       (d) Consists of or comprises a mark which so resembles a mark registered in
       the Patent and Trademark Office, or a mark or trade name previously used in
       the United States by another and not abandoned, as to be likely, when used
       on or in connection with the goods of the applicant, to cause confusion, or to
       cause mistake, or to deceive . . . .


2009-1139                                    3
       The TTAB upheld the examiner’s likelihood of confusion determination. The TTAB

found that the two marks appear identical in sound, meaning and commercial impression

because the phrase SEED TO PLATE is the dominant element in both marks. The TTAB

found that the goods and services identified in Northland’s application are related to those

in the ‘968 mark based on “several third-party use-based registrations . . . show[ing] that

numerous entities have adopted a single mark for books, magazines, educational services,

and information services.”    The TTAB also determined that the subject matter field

“planting, growing and harvesting crops” listed for the ‘968 registered mark encompasses

the channels of trade and class of purchasers relevant to Northland’s mark.

                                       DISCUSSION

       The determination of likelihood of confusion is a question of law based on underlying

facts. Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 671 (Fed. Cir.

1984). In accordance with the Administrative Procedure Act, the TTAB’s legal conclusions

are reviewed de novo and factual findings are reviewed on the standard of support by

substantial evidence. 5 U.S.C. §706; see, e.g., On-Line Careline Inc. v. American On-Line,

Inc., 229 F.3d 1080, 1085 (Fed. Cir. 2000) (applying the Administrative Procedure Act to

issues of likelihood of confusion). Likelihood of confusion is conventionally determined by

applying the factors set forth in In re E.I. DuPont De Nemours & Co., 476 F.2d 1357, 1361

(CCPA 1973).      The marks are compared for similarities “in their entireties as to

appearance, sound, connotation, and commercial impression.” Id.; see Specialty Brands,

748 F.2d at 672-76 (applying the DuPont factors).

       Northland argues that the TTAB erred by focusing only on the phrase SEED TO

PLATE in the mark without considering the associated drawing or the commercial




2009-1139                                    4
impression created by the entirety of the mark. Northland argues that unlike the ‘968 mark

which has an elaborate design including a tree being tended by a man and a woman

planting seeds, the mark at issue contains a simple design of “a soybean sitting on a plate”

with very clean lines. Northland argues that confusion is unlikely because a viewer would

notice the visual differences between the two marks. Northland argues that while both

marks contain the phrase SEED TO PLATE, the TTAB erred by giving no weight to the

phrase A COMMUNITY PARTNERSHIP IN CARING in the ‘968 mark. Northland argues

that because the viewer’s attention would immediately focus on the design element of the

‘968 mark rather than the word elements of the mark. Northland argues that the TTAB

incorrectly found the phrase SEED TO PLATE to be the dominant phrase in the ‘968 mark.

       Northland also argues that there are sufficient dissimilarities in the commercial

impression rendered by the two marks to prevent a likelihood of confusion. As argued by

Northland: “the connotation or commercial impression created by the [‘968] mark is that one

can attend one of registrant’s classes, seminars or workshops to learn to grow his or her

own food,” Appellant Br. at 14, whereas “the connotation and commercial impression

created by [Northland’s] Mark is that of being able to eat more wholesome food products.”

Id. at 15.

       The PTO argues that the TTAB correctly found that the phrase SEED TO PLATE in

large, bold letters across the top of the mark is the dominant element of the ‘968 mark

whereas the phrase COMMUNITY PARTNERSHIP IN CARING is written in smaller letters

at the bottom of the design. The PTO states that the TTAB properly considered both marks

in their entireties including the associated designs, and found that the similarities outweigh

the dissimilarities.   The PTO argues that the similarities between the commercial




2009-1139                                     5
impressions, i.e., both marks relating to growing crops as food, will be likely to cause

confusion because the two marks offer related goods and services with overlapping

channels of trade and purchasers.

       Trademarks are considered in their entireties, words and design. In re Shell Oil Co.,

992 F.2d 1204, 1206 (Fed. Cir. 1993). “Although examining the marks in their entireties,

the comparison, for rational reasons, may give more or less weight to a dominant feature of

the mark.” Herbko Int’l Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165 (Fed. Cir. 2002). In

this case, both marks contain the identical phrase “SEED TO PLATE.” The phrase SEED

TO PLATE is prominent in each mark, where it is presented in capitalized and bold letters.

Although we agree with Northland that the associated drawings are different, in considering

the overall impression “it is not proper to dissect a mark; our predecessor court recognized

that one feature of a mark may be more significant than other features, and that it is proper

to give greater force and effect to the dominant feature.” Giant Food, Inc. v. Nation’s

Foodservice, Inc., 710 F.2d 1565, 1570 (Fed. Cir. 1983). ”[T]here is nothing improper in

stating that, for rational reasons, more or less weight has been given to a particular feature

of a mark, provided the ultimate conclusion rests on consideration of the marks in their

entireties.” In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985).

       The Board found that the phrase SEED TO PLATE dominates both marks, and that

the differences in the associated designs do not diminish their effect of substantial identity

as to source, when viewed in their entireties. See China Healthways Institute, Inc. v.

Wang, 491 F.3d 1337, 1340 (Fed. Cir. 2007) (“The word CHI is an integral part of both

marks and must be given appropriate weight.”)




2009-1139                                     6
       On appeal, Northland does not disagree with the Board’s determination that the

goods and services at issue are related and that the channels of trade and classes of

customers overlap. Northland instead argues that its mark creates a different commercial

impression than that of the ‘968 mark based on the differences in their overall designs.

Northland argues:

       The [‘968] mark creates the impression of a community who comes together
       to grow its own food as a result of the use of an image of a man and a
       woman tending a garden along with the words “A Community Partnership in
       Caring.” Whereas, . . . [Northland’s] mark, when viewed in connection with
       the manner in which it is used, creates the impression that the food that is
       placed on one’s plate will be of the highest quality due to [Northland’s]
       fastidious supervision of the production cycle from its earliest stage when the
       food one the plate was merely as seed. Therefore, the differences between
       the marks, visually, phonetically and connation, support a finding of no
       likelihood of confusion.

Likelihood of confusion requires consideration of the degree of similarity between the marks

including the respective commercial impression; and it is thus not necessary for the

commercial impressions to be identical in order to sustain a finding of likelihood of

confusion. See In re Research & Trading Corp., 793 F.2d 1276, 1278 (Fed. Cir. 1986)

(“The confusion referred to in section 2(d) is that of purchasers in the market place where

the marks are used. It is thus not necessary that the goods of the parties be identical in

order to sustain a finding of likelihood of confusion.”).

       In view of the identity of the words of the marks, and the undisputed finding that the

marks offer related goods and services and have overlapping channels of trade and

customers, reversible error has not been shown in the Board’s finding that potential

purchasers are likely to be confused. “That the relevant class of buyers may exercise care

does not necessarily impose on that class the responsibility of distinguishing between




2009-1139                                     7
similar trademarks for similar goods.” Research & Trading, 793 F.2d at 1279. (“Human

memories even of discriminating purchasers . . . are not infallible.”) (citation omitted).

       The refusal of registration is affirmed.




2009-1139                                     8
