The USPTO refused registration of the mark FALL HARVEST for “coffee for use in single-serve brewing machines,” finding the mark likely to cause confusion with the registered mark AUTUMN HARVEST BLENDfor “whole roasted coffee beans, ground roasted coffee beans and processed ground coffee beans” [BLEND disclaimed]. Applicant pointed out that its goods would be used by consumers only for single-service machines, and it argued that in view of 14 third-party registrations, HARVEST is a weak formative. How do you think this came out? In re Trilliant Food and Nutrition, LLC, Serial No. 87400795 (December 11, 2017) [not precedential] (Opinion by Judge Albert Zervas).

The Board found that the involved goods overlap. Registrant’s goods are broadly described and its coffee beans include ground roasted coffee beans “for use in single serve brewing machines.” The evidence showed that fresh ground coffee can be used in a coffee maker instead of pods. Because the goods overlap, the Board must presume that they travel in the same channels of trade to the same classes of consumers.

As to the strength of the cited mark, applicant submitted 14 third-party registrations covering coffee, for marks containing the word HARVEST, including PERFECT HARVEST, FIELD HARVEST, DAKOTA HARVEST, and WORLD HARVEST. The Board noted that under Jack Wolfskin and Juice Generation, registration and use of a particular term for the same or very similar goods can be “powerful” evidence of weakness.

The Board noted, however, that even though HARVEST is a weak formative for coffee, (1) registrant’s mark includes other terms, (2) applicant has not established any weakness in registrant’s mark as a whole, and (3) even weak marks are entitled to protection against registration of similar marks for identical goods. The Board concluded that this factor slightly favored applicant.

As to the comparison of the marks, Examining Attorney Amanda Galbo contended that the marks are similar because the word FALL in applicant’s mark is identical in meaning to AUTUMN in the cited mark. Furthermore, she argued, the term BLEND does not sufficiently distinguish the marks.

The Board agreed with the examining attorney. Even if HARVEST is a weak formative for coffee, the terms AUTUMN and FALL have the same meaning and the word BLEND is highly descriptive or generic. The Board therefore found that that marks are similar in meaning and commercial impression. Even if the marks are somewhat different in appearance and sound, similarity in meaning and commercial impression is sufficient to support a finding of likely confusion.

Balancing the relevant du Pont factors, the Board found confusion likely, and it affirmed the refusal to register.