The Board affirmed this Section 2(d) refusal to register the mark RED LABEL for "chicken for sale to foodservice institutions," finding it likely to cause confusion with the identical mark registered for "frozen fish and seafood." Applicant Tyson Foods argued that its customers are sophisticated and would distinguish between the source of goods distributed under a mark from the source of goods manufactured or produced under a mark. The Board was not impressed. In re Tyson Foods, Inc., Serial No. 86533628 (August 9, 2016) [not precedential].

Please click here to view image

Of course, the identity of the marks weighed heavily in favor of a finding of likely confusion: when the marks are identical, a lesser degree of similarity between the involved goods is needed to support a Section 2(d) bar to registration.

There could be little dispute that the goods are similar in nature, since chicken, fish, and seafood may be used interchangeably as appetizers or entrees, or in salads and sandwiches. [Really? I think they taste quite different - ed.]. Tyson, however, focused on the fact that its goods are not directed to retail consumers but to foodservice institutions, and thus involve purchasers more sophisticated than the general public.

Because applicant Tyson limited its identified class of purchasers, the only overlap in purchasers is foodservice institutions. Tyson argued that foodservice purchasers are sophisticated and exercise a high degree of care when purchasing goods. The Board agreed that "it stands to reason that institutional investors will exercise greater care in making their purchases than the general purchasing public."

Examining Attorney Brittney L. Cogan provided excerpts from various commercial websites offering chicken and fish or seafood under the same mark to foodservice institutions. She also submitted third-party registrations covering all three products sold to such institutions. Tyson, however, asserted that although these products may be distributed by the same company, sophisticated foodservice buyers "are not likely to think that such goods are manufactured or produced by the same company even if the goods are identified by the same mark."

Tyson conceded that there may be a few exceptions - i.e., entities that both manufacture or produce, and distribute, poultry and seafood to food service institutions. Moreover, it conceded that foodservice buyers "buy directly from manufacturers or wholesale distributors."

The Board concluded that some sources distribute all of these food products under the same brand, while others both produce and distribute food products. "The cited third-party evidence serves to suggest that the identified goods are of a type that emanate from a single source."

Finally, the Board observed once again that even sophisticated buyers are not immune from source confusion, especially when the marks, "as used on their identified goods, so resemble one another as to be likely to cause confusion ...." [That begs the question, doesn't it? - ed.].

And so the Board affirmed the refusal to register.