GREEN MAX
Application Serial No. 77/801031

I. AMENDMENT
Applicant amends the Application as follows:
No claim is made to the exclusive right to use GREEN apart from the mark as shown.

II. REMARKS
A. Section 2(d) Refusal
By Office Action dated November 17, 2009, the Examining Attorney refused registration
of Applicant’s GREEN MAX mark under Section 2(d) on the grounds of likelihood of confusion
with the prior registered mark GREEN MAX TURF (U.S. Registration No. 1697889) (the “Cited
Mark”) apparently owned by Virginia Beef Corporation of Haymarket, Virginia (“Registrant”) .
Specifically, the Examining Attorney asserted that Applicant’s mark is similar in appearance to
the Cited Mark, and that the goods of the respective marks are closely related and are of a kind
that may emanate from the same source. Applicant disagrees with this determination for the
reasons set forth below, and respectfully requests that the refusal be withdrawn and that this
application be allowed to proceed to registration.
1. The Standard For Determining Whether A Likelihood Of Confusion
Exists

The standard for determining whether a likelihood of confusion exists is whether the
purchasing public would mistakenly assume that applicant’s goods or services originate with, are
sponsored by, or are in some way associated with the goods or services sold under a cited
registration. FBI v. Societe: “M. Bril & Co.”, 172 U.S.P.Q. 310 (TTAB 1971). While there are
a number of factors to be considered when weighing a likelihood of confusion, any one of the
factors may dominate in any particular case. In re E.I. du Pont de Nemours & Co., 476 F.2d
1357, 177 U.S.P.Q. (BNA) 563, 567 (CCPA 1973). “We know of no reason why, in a particular
case, a single DuPont factor may not be dispositive.” Kellogg Co. v. Pack’em Enterprises, Inc.,
951 F.2d 330, 21 U.S.P.Q.2d 1142, 1145 (Fed. Cir. 1991).

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2. Applicant’s Goods, Channels of Trade, and Consumer Base Differ
From Registrant’s

Key du Pont factors are the similarity of the goods marketed under the respective marks,
as well as the similarity of their channels of trade and the consumers targeted for their purchase.
The Examining Attorney asserted that the goods with which Applicant intends to use its mark are
related to those of the Cited Mark, or are those which may emanate from the same source.
Applicant, however, seeks registration of the mark GREEN MAX for “fertilizers” in
International Class 1. Applicant’s goods essentially are substances designed solely and
specifically to provide nutrition and otherwise enhance the growth of all manner of plants.
Applicant does not market Class 31 turf or grass seed products under its mark. Moreover,
Applicant’s fertilizer goods will be marketed to individual consumers, via home and garden retail
outlets such as The Home Depot and Ace Hardware stores. Applicant’s fertilizer generally will
be packaged in bags weighing perhaps several pounds, but not more than reasonably could be
carried or transported in a buyer’s car.
In contrast, the Cited Mark is registered specifically for a “turf grass sod” in International
Class 31. According to public information available on Registrant’s website at
www.virginiabeef.com and elsewhere, Registrant apparently markets specialty turf, which it
grows from seed, harvests, and then delivers to and installs for land development professionals.
Registrant’s sod is harvested in 42-inch (3 1/2 feet) wide rolls that are “excellent for large
applications / golf courses / athletic fields” and is delivered via Mack truck semi and tandum
units and installed onsite via Registrant’s forklifts. See printed pages from Registrant’s website,
attached here as Exhibit A, which include exemplar images and descriptions of its turf grass sod
production, harvesting, and delivery practices.
Registrant’s branded turf grass sod business apparently is a focused, specialty enterprise
targeted to the interests of professional land developers, architects, and builders. Such
professional consumers want to present their properties for sale to the greater public complete
with beautiful, established growing lawns. Registrant’s website encourages their interest with its
advertising: “As an architect, builder, or developer, you understand the necessity for eye-
pleasing ground cover. Building projects have to be sold and you need every advantage to attract
prospective buyers. Why wait months or years for attractive cover?” See, Exhibit A.
Overall, Applicant’s and Registrant’s goods meet the specific and special needs of

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particular – and different – customers. The significant differences between Applicant’s goods,
channels of trade, and primary consumer base, and those of Registrant, are more than sufficient
to prevent any confusion from occurring, and compel the withdrawal of the likelihood of
confusion refusal.

2. Applicant’s Mark And The Cited Mark Differ In Their Entireties

Another key du Pont factor is the similarity of the respective marks in appearance and
pronunciation, as compared in their entireties. See, also, TMEP 1207.01(1) (in determining
whether a likelihood of confusion exists, the Examining Attorney must consider “[t]he similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation and
commercial impression.”). Here the respective marks are GREEN MAX and GREENMAX
TURF. The Examining Attorney contends that greater weight must be given to the elements
GREEN and MAX, because TURF in Registrant’s mark was disclaimed, and “disclaimed matter
is typically less significant or less dominant when comparing marks (citations omitted).” On this
basis the Examining Attorney concludes that both GREEN and MAX dominate both marks. She
further concludes that because they form the first features of both marks, they are the “most
likely to be impressed upon the mind of a purchaser (citations omitted).”
Applicant submits, however, that GREEN is relatively popular for marks registered for a
broad range of goods in both Classes 1 and 5. Indeed, numerous GREEN marks owned by
different owners coexist on the register in these two classes alone. Examples include:

MARK REG. CLASS
NO.
SCREAMIN’ GREEN 3704989 Class 1: Chemical fertilizers; compost; fertilizers; fertilizers and
manures; fertilizers for agricultural use; fertilizers for domestic
use; mixed fertilizers; natural fertilizers; non-chemical bio-
fertilizers
PEGGY GREEN 3765194 Class 1: Food supplements for agricultural products and other
plants; plant food
CHARCOAL GREEN 3717119 Class 1: Compost featuring charcoal as an ingredient; fertilizers
and manures featuring charcoal as an ingredient; fertilizers
featuring charcoal as an ingredient for agricultural use; fertilizers
featuring charcoal as an ingredient for domestic use; natural
fertilizers featuring charcoal as an ingredient; non-chemical bio-
fertilizers featuring charcoal as an ingredient
REGAL SOLUGREEN 3626679 Class 1: Fertilizers for agricultural, commercial and domestic use

300098935.1 3
MARK REG. CLASS
NO.
GRASSOGREEN 3608438 Class 1: Fertilizer
GREEN TOUCH 3662730 Class 1: Agricultural fertilizer
(Stylized)
PROFESSOR GREEN 3505030 Class 1: Fertilizers for agricultural use; fertilizers for domestic use
ROOSTER GREEN 3712672 Class 1: Fertilizers for horticultural use
AMAIZEINGLY 3644342 Class 1: Fertilizers
GREEN & Design Class 5: Pesticides
GREENEFFECTS & 3563258 Class 1: Fertilizers
Design
GOGREEN & Design 3680532 Class 1: Fertilizers for agricultural use; fertilizers for domestic use;
soil additives; chemical additives for use in the manufacture of
nutritional supplements, food supplements, cosmetics; botanical
extracts for use in making cosmetics; soil conditioners for
agricultural, domestic and horticultural use
Class 5: Pesticides for industrial, commercial, garden, lawn and
professional use; animal feed additive for use as a nutritional
supplement for medical purposes; dietary supplements; dietary
supplements for animals; food supplements; nutraceuticals for use
as a dietary supplement; nutritional additives for medical purposes
for use in foods and dietary supplements for human consumption;
nutritional supplements; plant extracts for medical, veterinary and
pharmaceutical purposes
Class 31: Animal Feed additives for nonnutritional purposes for
use as ingredient or filler; nutritional additives for animal food
stuffs, not for medical purposes
Class 42: Design for others in the field of use of fertilizers and
pesticides, lawn care, landscape gardening, soil additives

GREEN CYPRESS & 3430723 Class 1: Fertilizers; adjuvants for use with pesticides
Design Class 5: Fungicides
EXTREME GREEN 3397751 Class 1: Fertilizers
GREENCYCLE 3491304 Class 1: Materials which are the result of recycling, mixing,
packaging and transportation of organic materials, namely, potting
soil, soil conditioners in the nature of compost for horticultural and
agricultural use, and fertilizers for horticultural and agricultural
use, sold only in bulk
Class 31: Material which is the result of recycling, mixing,
packaging and transportation of organic materials, namely, topsoil
and mulch, sold only in bulk
Class 39: Packaging articles for transportation, transport of goods
and cargo handling services in connection with organic materials
such as top soil, mulch, compost, leaves, grass, brush and clean

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MARK REG. CLASS
NO.
wood waste
Class 40: Recycling and mixing/grinding services for third parties
in connection with organic materials such as top soil, mulch,
compost, leaves, grass, brush and clean wood waste

GREEN EVOLUTION 3503692 Class 1: Fertilizer
GREEN 3557977 Class 1: Natural lawn care and organic fertilizer
RESPONSIBLY
GREENCARE BY 3462528 Class 1: Chemical and agrochemical products used for agriculture,
SASSA & Design horticulture, fruiticulture, in particular leaf fertilizers,
biostimulants, soil correctors and/or improved waters for plant
health including those based on biological raw materials
GARY’S GREEN 3242439 Class 1: Fertilizers
ULTRA
EXTREME GREEN 20 3220216 Class 1: Fertilizers
EXTREME GREEN 19 3220203 Class 1: Fertilizers
CRYSTAL GREEN 3532577 Class 1: Fertilizers
PURE GREEN 3703638 Class 1: Fertilizers for agricultural and domestic use, namely, soil
amendments which are incorporated into or onto turf, lawns,
beddings, and other non-potted soil profiles
PHYTA-GREEN 3201003 Class 1: Fertilizers; fertilizers for agricultural use; fertilizers for
domestic use; mixed fertilizers; natural fertilizers
GREENFEE 3124922 Class 1: Fertilizer for use on all types of grasses
GREENSUN 3188128 Class 1: Granular fertilizer for agricultural use
GROWIN GREEN 2995260 Class 1: Fertilizers
SOYGREEN 3335930 Class 1: Chemical products used in agriculture, namely, chemical
preparations for the treatment of seeds, soil and water; fertilizers
for soil
BRING BACK THE 3130710 Class 1: Lawn care products for agricultural, domestic, and
GREEN commercial use, namely, soil enhancers, gypsum, fertilizer,
potting soils, manures, plant food, tree food, lawn food
GREEN-GRO 2985269 Class 1: Fertilizer for domestic, commercial and agricultural use
LOUISVILLE GREEN 3071540 Class 1: Soil additives and amendments; fertilizers for domestic,
agricultural and horticultural use; bio-solid pellets used as
fertilizer for domestic, agricultural and horticultural use
RITE GREEN 2832110 Class 1: Fertilizer for domestic and agricultural use, and potting
soil

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MARK REG. CLASS
NO.
Class 31: Mulch and top soil
GREENLAB 3014409 Class 1: Fertilizers for agricultural use; horticultural and
agricultural crop aids, namely, soil wetting agents and surfactants
for use in connection with agricultural pesticides
HI-GREEN (Stylized) 3291267 Class 1: Fertilizers for agricultural use
LONGGREEN 2998615 Class 1: Fertilizers and soil amendments for domestic and
agricultural use
SPRAY TODAY, 2815623 Class 1: Fertilizers for residential and non-farm uses
GREEN TOMORROW Class 5: Herbicides and insecticides for residential and non-farm
uses
FEEDS AT EVERY 2900620 Class 1: Fertilizers for home, garden and lawn use and for
LEVEL FOR A DEEP professional use
DOWN GREEN
THAT LASTS
GREEN LEAF & 2702561 Class 1: Lawn and garden fertilizers for domestic use
Design
FARMER GREEN 2739690 Class 1: Fertilizers for domestic use, potting soil, peat, and manure
Class 31: Top soil
GREAT NORTHERN 2971269 Class 1: Fertilizers for agriculture use
GREEN & Design
GARDEN GREEN & 2765286 Class 1: Fertilizers for agriculture use
Design
FIELD GREEN & 2845608 Class 1: Fertilizers for agriculture use
Design
ALL SOUTH 2818734 Class 1: Fertilizers for agricultural and domestic use
MIGHTY GREEN &
Design
PHYTO-PLUS 2578310 Class 1: Fertilizers for agricultural use and domestic use
NUTRA-GREEN 5-10-
5
TRUGREEN 2543094 Class 1: Fertilizers for agricultural and domestic use
Class 37: Installation and maintenance of landscape irrigation
systems; landscape pesticide application; landscape snow and ice
removal; maintenance of indoor plants for others; pest control
services
Class 42: Lawn, tree and shrub care services; lease and rental of
indoor plants and horticultural services, namely, upkeep of plants
for others; landscape gardening and design for others; flower, tree,
shrub and lawn planting and maintenance for others
TRUGREEN 2588601 Class 1: Fertilizers for agricultural and domestic use
CHEMLAWN
GREENYARD & 2805305 Class 1: Turf fertilizer for domestic use
Design Class 31: Grass seed

300098935.1 6
MARK REG. CLASS
NO.
GREENYARD 2727754 Class 1: Turf fertilizer for domestic use
PROFESSIONAL & Class 31: Grass seed
Design
FOREVERGREEN 2669896 Class 1: Law and garden fertilizer
CHITO-GREEN 2745747 Class 1: Fertilizer for domestic, agricultural, forestry, park, lawn
and horticultural use
ULTIMATE GREEN 2539202 Class 1: Fertilizer for commercial and agricultural use
GENE’S GREEN 2415233 Class 1: Fertilizers for agricultural use and domestic use
GLITTERGREEN 2488421 Class 1: Sand and natural fertilizers for domestic and agricultural
use
PLANET GREEN 2338045 Class 1: Fertilizers and soil amendments for agricultural,
(Stylized) horticultural and domestic use
GREENALL & Design 2292339 Class 1: Potting soils, lawn food, fertilizers for domestic use and
soil conditioners for domestic use
VITAGREEN 2504895 Class 1: Stonewool substrates comprised of mineral fibers, with or
without, soil, fertilizers, seeds or clay for use as root mediums or
as a water distribution layer for hydroponic cultivation of plants in
greenhouse horticulture
CANADA GREEN 2079788 Class 1: Fertilizers for agricultural use, fertilizers for domestic use,
plant food, potting soil, soil conditioner for agricultural use, soil
conditioner for domestic use, soil conditioner for horticultural use
Class 31: Grass seeds, top soil, non-artificial turf, flower seeds,
flower bulbs, live trees, live plants, live shrubs
GREENWORLD 2178519 Class 1: Potting soil, specialized and general purpose planting
mixes, cow manure, seed starter mix, perlite, vermiculite, liquid
plant food, plant food spikes, and fertilizer for horticultural and
domestic use
GREEN IT 2142682 Class 1: Fertilizers for domestic use
GREENSKEEPER 2064333 Class 1: Fertilizer
VITA-GREEN 1969321 Class 1: Lawn and garden fertilizer for domestic and commercial
use
NATURAL GREEN 2086724 Class 1: Lawn and garden fertilizer
GREEN-T PFC & 1878369 Class 1: Fertilizer products, namely, a nitrogen-phosphorus-potash
Design formulation in fluid form for domestic and/or agricultural use on
fine turf grass areas
CLUB GREEN 1798987 Class 1: Lawn and garden fertilizer for domestic use
GREENLINKS 1748006 Class 1: Fertilizer for commercial use
GREEN TURF 1730497 Class 1: Fertilizer and combination fertilizer and herbicide and
fertilizer and insecticide
GREEN LIGHT 1759315 Class 1: Fertilizers and plant foods for both agricultural and
domestic use

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MARK REG. CLASS
NO.
GREEN LIGHT & 1762245 Class 1: Fertilizers and plant foods for both agricultural and
Design domestic use
KELLY’S GREEN 1652834 Class 1: Fertilizer and agricultural limestone for lawns, gardens
TEAM and general plant nutrition
DYNA GREEN 1562902 Class 1: Fertilizer
GREENSWEEP 1582097 Class 1: Fertilizers for residential and other non farm uses
PREMIUM GREEN 1583174 Class 1: Fertilizer and soil conditioner for use on greens, tees,
bowling greens, and other areas where high-quality turf is required
GREEN CHARGER 1529163 Class 1: Fertilizers and lime for agricultural, home, garden or
commercial use
PREEN ‘N’ GREEN 1475555 Class 1: Combination fertilizer and herbicides
Class 5: Combination herbicide and fertilizer
GREEN CHARM 1466067 Class 1: Fertilizer
Class 31: Grass seed
NUTRI-GREEN 1489773 Class 1: Agricultural composts and fertilizers
(Stylized)
GREENSKOTE 1455964 Class 1: Fertilizers for commercial use on specialized turf
GREEN UP 1420696 Class 1: Fertilizer
GREEN SWEEP 1373226 Class 1: Fertilizers for residential and other non farm uses
PRO-GREEN 1376503 Class 1: Lawn and plant fertilizer
GREEN LIGHT 1325267 Class 5: Pesticides, namely, insecticides, rodenticides, herbicides
and fungicides
GREEN GOLD 1322802 Class 1: Chemical lawn fertilizer
Class 5: Herbicide/fertilizer mixtures, herbicides and insecticides
GREEN DROP & 1252590 Class 1: Fertilizers and fertilizer blends
Design
GREEN DROP 1252591 Class 1: Fertilizers and fertilizer blends

GREEN START 1246138 Class 1: Fertilizer
(Stylized)
GREEN GARDE 1033498 Class 8: Garden and plant care tools and sprayers sold individually
and with wooden caddies therefore sold as a set
CRABICIDE GREEN 0963326 Class 1: Combination herbicide and fertilizer
E Z GREEN 0934333 Class 1: Organic fertilizer
WINTER GREEN 0909930 Class 1: Lawn fertilizer
GREEN HOUSE 0870299 Class 1: Fertilizer
GREEN POWER 0830469 Class 1: Lawn fertilizer
TEE-GREEN 0842707 Class 1: Fertilizer
GREENLAWN 0733641 Class 1: Fertilizers
STA-GREEN 0686131 Class 1: Fertilizer

300098935.1 8
MARK REG. CLASS
NO.
(Stylized)
SIMPLOT GREEN 0505699 Class 1: Fertilizers, more particularly ammoniated phosphate
DIAMOND & Design

Printed copies of these registrations as reflected in the U.S. Patent and Trademark Office’s
(“PTO’s”) online database are attached here as Exhibit B. The fact that these marks coexist on
the register and presumably in the marketplace suggests that the PTO believes that consumers
can differentiate between them all – likely in part due to slight differences between them,
including those created even by other somewhat descriptive words such as TURF. Thus here
TURF merits at least as much weight in the comparison of the two marks as GREEN.
It also follows that MAX is the dominant common element in Applicant’s mark and the
Cited Mark. Importantly, Applicant already owns prior Registrations Nos. 2350235 and
1177687 for MICROMAX and MICROMAX & Design for specified fertilizers in Class 1, and
Applicant has used MICROMAX since at least as early as 1979 – more than ten years longer
than Registrant has used the Cited Mark for goods in Class 31. Therefore, overall, Applicant’s
rights in MAX marks – at least for Class 1 goods – predate those of Registrant in the Cited Mark.
Given Applicant’s priority rights for MAX for fertilizer goods, if in the unlikely event Registrant
does in fact begin to use of GREENMAX TURF for Class 1 goods such as fertilizers, then it
would do so as the junior user. The Cited Mark cannot stand as a bar to Applicant’s mark. See,
Johnny Blastoff Inc. v. Los Angeles Rams Football Co., 48 U.S.P.Q.2d 1385, 1395 (the Lanham
Act “provides that federal registration of a mark confers upon the owner a right of priority dating
back to the filing of the application”); see, also, 15 U.S.C. § 1057 (“filing of the application to
register a mark shall constitute constructive use of the mark, conferring a right of priority”). For
these additional reasons, the likelihood of confusion refusal should be withdrawn.

III. Refusals Under Section 2(a) and 2(e)(1)

The Examining Attorney also refused registration of Applicant’s mark on grounds that
the mark consists of deceptive matter under to Section 2(a), and alternatively, is deceptively
misdescriptive under Section 2(e)(1). Specifically, she determined that the word GREEN in

300098935.1 9
Applicant’s mark “indicates that the goods are environmentally friendly and safe to the
environment” and therefore, if Applicant’s mark is not an “environmentally friendly fertilizer”
its is deceptive or, alternatively, misdescriptive.
Applicant respectfully submits, however, that GREEN as part of its mark GREEN MAX
is neither deceptive nor misdescriptive. First, GREEN has multiple meanings, the primary
meaning being the name of a color. On this basis Applicant has now voluntarily disclaimed
GREEN apart from its mark as a whole. Indeed, the online Merriam Webster dictionary lists this
meaning first of at least ten other meanings. A printed copy of the top 10 definitions for “green”
appearing there is attached as Exhibit C.
Applicant submits that consumers primarily understand GREEN to be a reference to color
for healthy plants and their growth. Moreover, Applicant’s labels/packaging design emphasizes
this primary meaning of green: Applicant’s GREEN MAX mark is superimposed over the color
image of a beautiful expanse of healthy green lawn; additional text highlighted in orange reads
“PLUS 5.75% Iron For Deep Greening” and “Contains Triple the Iron for Fast, Extreme
Greening.” A printed image of Applicant’s label/packaging is attached here as Exhibit D.
Finally, “green” also accurately describes a characteristic of fertilizers generally, in that
fertilizers improve and maintain healthy plants, and gardening and the care of plants also are
broadly deemed “green” activities because plants help reduce carbon dioxide in the atmosphere
and so improve the condition of the broader environment.
Perhaps at least in part due to the many meanings of green and in keeping with the
public’s understanding of the color green as representative of well-fed and healthy plants, the
PTO has granted numerous registrations for GREEN marks for Class 1 goods, including
fertilizers. See again Exhibit C attached here. Thus the PTO already has determined that
GREEN is not deceptive or misdescriptive for fertilizers. Applicant requests that the Examining
Attorney follow this precedent and withdraw the Section 2(a) and 2(e) citations here.

III. CONCLUSION
In view of the foregoing Amendment and Remarks, Applicant believes that its
application is now in a condition for publication.

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