Applicant Coastal Sunbelt sought to register the mark SUNBELT ORGANIC, in standard form and in several design forms, for “organic foodstuffs, namely, salsa” and “processed organic fruits and vegetables” [ORGANIC disclaimed]. Opposer claimed a likelihood of confusion with the registered marks SUNBELT and SUNBELT BAKERY (including in the design form shown further below) for granola, granola bars, snack bars, cereal, cookies and snack cakes [BAKERY disclaimed]. Of course the marks are similar, but what about the goods?McKee Foods Kingman, Inc. v. Coastal Sunbelt Produce, LLC, Opposition No. 91224476 (October 13, 2017)[not precedential] (Opinion by Judge Marc A. Bergsman).

The parties stipulated that 16 third-parties “offer for sale” various combinations of the involved goods under the same mark. (Only one sold salsa). The Board therefore inferred that the goods of the parties may emanate from the same source.

The Board found that consumers are likely to believe that organic fruits and vegetables are different lines of products sold by a company specializing in healthful foods. Fruits, vegetables, and granola may be sold in the same section or different sections of grocery stores. However, there was no evidence as to where salsa may be found.

The evidence indicated that many of opposer’s products contain fruit, and furthermore consumers may combine fruit with other items in opposer’s line. The Board concluded that applicant’s fruits and vegetables are related to opposer’s products. However, there was insufficient evidence to find salsa related thereto.

The products of the parties are sold in the same channels of trade to the same classes of consumers. Purchasers who exercise a high degree of care in purchasing organic products may not exercise the same degree of care when purchasing granola products.

Opposer provided the results of an Eveready-type survey purportedly showing a 20-23.4 percent confusion level vis-a-vis organic fruit. That outcome is sufficient to support an inference that confusion is likely as to these goods. However, because there was no check on the accuracy of the survey and no attempt to verify that any of the respondents actually participated in the survey, the probative value of the survey was minimized.

The Board therefore sustained the opposition as to the four applications covering fruits and vegetables, and dismissed the opposition as to the two salsa applications.

 

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