ProMark Brands and H.J. Heinz Company (collectively “Opposers”) opposed applications from GFA Brands (“Applicant”) to register the mark SMART BALANCE for frozen entrees and other frozen snack foods and desserts, on the basis of the registered mark SMART ONES for frozen entrees dessert and other frozen foods. The TTAB refused the opposition noting significant differences in the mark, particularly in view of the weakness of the “Smart” component, which is commonly used to describe healthy food products, and the 17 years of co-existence with no evidence of confusion. Further, the TTAB found that Applicant’s survey evidence supported a ruling of no likelihood of confusion.

The TTAB found Opposers’ survey, which claimed that 32% of the surveyed consumers were confused, to be fatally flawed. The survey excluded potential purchasers of SMART BALANCE products who were unaware of SMART ONES products, which the TTAB found “skewed the results of [the] survey by preventing those individuals least likely to be confused from participating.” Further, participating consumers were only asked closed-ended questions, and the survey did not include questions asking why the consumers might be confused. 

Opposers also tried to establish that the SMART ONES mark is famous for purposes of showing likelihood of confusion. Although Opposers submitted evidence that the SMART ONES mark has been heavily marketed during its 20 years of existence and has achieved a high volume of sales, the SMART ONES mark always appears in conjunction with the WEIGHT WATCHERS mark. Thus, the TTAB found that promotional expenditures or resulting product sales do not support fame of the SMART ONES mark separate from the WEIGHT WATCHERS mark. Opposers also submitted survey results showing 82% consumer awareness of the brand, but the TTAB found the survey lacked evidentiary value because the study may have counted mentions of “WEIGHT WATCHERS SMART ONES” meals as mentions of “SMART ONES” meals. “If such mentions were made and were counted as mentions of SMART ONES meals, the uncertainty as to the fame of ‘SMART ONES’ alone persists.” 

In light of the Supreme Court ruling in B&B Hardware reported above, parties may begin to submit survey evidence more frequently in proceedings before the Trademark Trial and Appeal Board. This case provides valuable guidance to parties about how to conduct consumer surveys. 

ProMark Brands Inc. v. GFA Brands, Inc., Opposition Nos. 91194974 and 91196358 (TTAB March 27, 2015) (precedential).