The USPTO refused registration of the mark SOUTHERN GIRLS GOURMET SAUCES for "sauces; spice rubs" [GOURMET SAUCES disclaimed), finding the mark likely to cause confusion with the mark SOUTHERN GIRL registered by one owner for beer and by another owner for bakery products. The Board found the marks confusingly similar, but what about the goods? How do you think this came out? In re Southern Girls Gourmet Sauces LLC, Serial No. 86932732 (April 19, 2017) [not precedential] (Opinion by Judge Taylor).

The Marks: Not surprisingly, the Board found the marks to be similar in sound, appearance, and meaning, and very similar in overall commercial impression. Applicant pointed to the fact that the two cited registrations are owned by different entities, arguing that if those two registrations can co-exist on the Register, its mark can too. The Board was unmoved.

While the Office strives for consistency in examination, the Board is not bound by the prior decisions of examining attorneys in allowing marks for registration. It is well established that each case must be decided on its own facts. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)

The Board further noted that, to the extent applicant contends that the cited registrations should be treated in the same manner as third-party registrations, these two registrations "do not persuade us that the phrase SOUTHERN GIRL(S) 'has a normally understood and well-recognized descriptive or suggestive meaning, leading to the conclusion that that [term] is relatively weak.'" Juice Generation, Inc. v. GS Enters., 115 USPQ2d 1671 (Fed. Cir. 2015). In short, two registrations are not enough to show that SOUTHERN GIRLS carries a suggestive or descriptive connotation and is a weak formative for the involved goods.

The Goods: Examining Attorney Tara L. Bhupathi relied on various websites showing use of the same mark for both sauces and/or spice rubs and bakery goods and beer. She also made of record third-party use-based registrations for marks covering items in the subject application and cited registrations. The Board found this evidence sufficient to establish the relatedness of the goods, "such goods all being comestibles and flavorings for food that are often sold by the same source under the same mark."

Conclusion: With the marks similar, the goods related, and the channels of trade and classes of purchasers overlapping, the Board found confusion likely and it affirmed the refusal to register.