This Opinion is not a
Precedent of the TTAB

Hearing: Feb. 12, 2019 Mailed: July 15, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Mars, Incorporated
v.
PAGS Inc.
_____

Opposition No. 91221462
_____

Randall A. Brater, Ross Q. Panko, and Laura E. Zell of Arent Fox LLP,
for Mars, Inc.

Todd Deveau of Thomas|Horstemeyer, LLP,
for PAGS Inc.

_____

Before Denison, Commissioner for Trademarks,
and Mermelstein and Heasley, Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:

PAGS Inc., d/b/a Pet-Agree Grooming Supplies (“Applicant”), seeks registration

on the Principal Register of the mark PET-AGREE (in standard characters) for

“wholesale and retail supply store services featuring pet grooming supplies; online

wholesale and retail services featuring pet grooming supplies,” in International Class

35.1

1 ApplicationSerial No. 86235357 was filed on March 28, 2014, based on Applicant’s claim of
first use anywhere and use in commerce since at least as early as April 26, 2003.
Opposition No. 91221462

Mars, Incorporated (“Opposer”) opposes registration of Applicant’s mark on the

grounds of likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C.

§ 1052(d), and dilution by blurring under Trademark Act Section 43(c), 15 U.S.C.

§ 1125(c), of its registered marks containing or consisting of the word PEDIGREE,

used in connection with pet food, pet treats, cups, bowls, and other items used to

promote the sale of pet food, and other products and services for and relating to pets.

Opposer claims ownership of the following registered marks:

Mark Reg. No. Reg. Date Goods/Services
0284342 June 23, 1931 Canned dog food

PEDIGREE 1386983 Mar. 18, 1986 Pet food
1631808 Jan. 15, 1991 Pet food

1834853 May 3, 1994 Pet food

PEDIGREE 1948798 Jan. 16, 1996 Pet food
LITTLE
CHAMPIONS
PEDIGREE 1958952 Feb. 27, 1996 Pet food
PUPPY
PEDIGREE 2077683 July 8, 1997 Food for dogs
MARROBONE
4236428 Nov. 6, 2012 Pet food

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Opposition No. 91221462

Mark Reg. No. Reg. Date Goods/Services
1679350 Mar. 17, 1992 Periodically published journal
pertaining to health care of pets

4268435 Jan. 1, 2013 Cups and bowls not of precious
metal or coated therewith;
porcelain mugs and
PEDIGREE
earthenware mugs, all of the
foregoing used to promote the
sale of pet food
4343941 May 28, 2013 Downloadable computer
software for modifying the
appearance and enabling
transmission of photographs;
downloadable computer game
software; all of the foregoing
used to promote the sale of pet
food
4168866 July 3, 2012 Promotion of public awareness
about the need for adopting
PEDIGREE
animals, responsible pet
FOUNDATION
ownership, and the proper care
and treatment of pets
PEDIGREE 4168867 July 3, 2012 Charitable fundraising
FOUNDATION
2

During the course of the opposition proceeding, Opposer obtained leave to amend

its Notice of Opposition to assert a claim of fraud,3 but later removed that claim.4

Applicant’s Answer to the First Amended Notice of Opposition denies Opposer’s

2 Notice of Opposition ¶¶ 1-3, 1 TTABVUE 11-14, as amended, 46 TTABVUE 6-7 (TESS
printouts of registrations attached). The Notice of Opposition, filed in April 2015, listed six
registrations?nos. 3160098, 3230631, 3788053, 3793895, 3540906, and 3311506?that have
since been cancelled. These cancelled registrations have been given no consideration.
References to the briefs, motions and orders on appeal are to the Board’s TTABVUE docket
system.
3 Motion to amend, 12 TTABVUE, Board Order, 20 TTABVUE.
4Consent motion to amend first amended notice of opposition, 46 TTABVUE, granted by
Board Order, 48 TTABVUE.

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Opposition No. 91221462

salient claims and interposes four “affirmative defenses” that merely amplify its

denials. See Order of Sons of Italy in Am. v. Profumi Fratelli Nostra AG, 36 USPQ2d

1221, 1223 (TTAB 1995) (amplification of applicant’s denial of opposer’s claims

permitted); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP)

§ 311.02(d) (2018).

The parties fully briefed the issues of likelihood of confusion and dilution, and

appeared for oral argument. We sustain the opposition based on likelihood of

confusion under Section 2(d).

I. The Record

The record includes the pleadings and, by operation of Trademark Rule 2.122(b),

37 C.F.R. § 2.122(b), the application file at issue. The parties introduced the following

testimony and evidence:

A. Opposer’s Evidence

1. Testimony deposition of Melodie Bolin, marketing operations director and

former PEDIGREE brand manager for Opposer, with exhibits.5

2. Notice of reliance on:

a. TESS printouts of third-party registrations reciting goods and
services of the type identified in Opposer’s registrations and
Applicant’s involved application;6

b. Assignment of Kal Kan Foods, Inc.’s trademarks, including
PEDIGREE trademarks, to Opposer;7

5 49, 51 TTABVUE, 50 TTABVUE (confidential).
6 43 TTABVUE 2-3 & ex. 27.
7 43 TTABVUE 3-4 & ex. 28.

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Opposition No. 91221462

c. Notices of Opposition filed by Opposer;8

d. Board decisions involving Opposer or its predecessor;9

e. Specimens of use, declarations of use, and Statements of use of
Opposer’s registered PEDIGREE marks.10

3. Notice of reliance on TESS printouts, reflecting the status of and title to
Opposer’s PEDIGREE registrations.11

4. Notice of reliance on:

a. Applicant’s answers and supplemental responses to
interrogatories;12

b. Excerpts from discovery deposition of Robert Rhodes, with exhibits.13

5. Notice of reliance on:

a. Periodicals, publications, and websites regarding use and promotion
of the PEDIGREE marks and products;14

b. Applicant’s websites;15

c. Dictionary website concerning pronunciation of “T” and “D”;16

d. Third-party websites that offer both pet treats and pet grooming
supplies for sale;17

8 43 TTABVUE 4 & ex. 29.
9 43 TTABVUE 4 & ex. 30.
10 43 TTABVUE 4-5 & ex. 31.
11 42 TTABVUE & ex. 26.
12 44 TTABVUE 2 & ex. 32.
13 44 TTABVUE 2 & ex. 33.
14 45 TTABVUE 2-6 & exs. 34-40, 43-44, 47-56.
15 45 TTABVUE 4 & exs. 41-42.
16 45 TTABVUE 5 & ex. 45.
17 45 TTABVUE 5 & 46.

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Opposition No. 91221462

e. Advertising trade show printout.18

6. Notice of reliance on TESS printouts of third-party registrations that cover
goods and services of the type identified in Opposer’s pleaded registrations
and Applicant’s involved application.19

7. Notice of reliance on excerpts from discovery deposition of Robert Rhoades,
Applicant’s president.20

8. Notice of reliance on:

a. Third-party websites that offer pet treats and pet grooming supplies
or services;21

b. Third-party websites and dictionaries defining “feature” or
“featuring”;22

c. Applicant’s websites;23

d. News articles regarding Opposer’s promotion of PEDIGREE marks
and products.24

9. Cross-examination deposition of Applicant’s Sales Manager, Keili
Somerlot.25

B. Applicant’s Evidence

1. Testimonial declaration of Robert Rhoades, president of Applicant, with
exhibits.26

18 45 TTABVUE 5 & ex. 48.
19 76 TTABVUE 2-3 & ex. 58.
20 75 TTABVUE 2 & ex. 57.
21 77 TTABVUE 2-3 & ex. 59-60, 78 TTABVUE ex. 61-62, 65.
22 77 TTABVUE 3, 78 TTABVUE ex. 63.
23 77 TTABVUE 3-4, 78 TTABVUE ex. 64, 66.
24 77 TTABVUE 4, 78 TTABVUE ex. 67-68.
25 79 TTABVUE.
26 54, 56-57 TTABVUE, 55 TTABVUE (confidential).

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Opposition No. 91221462

2. Testimonial declaration of Keili Somerlot, Sales Manager for Applicant.27

3. Notice of reliance on Opposer’s answers to interrogatories.28

4. Notice of reliance on:

a. Corporate information from Georgia Secretary of State;29

b. TESS printouts of third-party registrations for PET-AGREE.30

5. Notice of reliance on:

a. Applicant’s web pages;31

b. WHOIS registration information for www.PetAgree.net;32

c. Dictionary definitions;33

d. Third-party uses relating to PET-AGREE.34

C. Evidentiary Objections

Applicant interposes a number of objections to Opposer’s evidence.35

First, Applicant contends, Opposer’s marketing operations director and former

PEDIGREE brand manager, Melodie Bolin, began her employment with Opposer in

June 2013 and became the PEDIGREE brand manager in September 2015.

Consequently, Applicant maintains, Ms. Bolin lacks personal knowledge about

27 58 TTABVUE.
28 59 TTABVUE.
29 61 TTABVUE & ex. PAGS 2.
30 61 TTABVUE & ex. PAGS 39.
31 60 TTABVUE 2, 5-7, 11-56.
32 60 TTABVUE 2, 8-10.
33 60 TTABVUE 3, 58-74.
34 60 TTABVUE 3, 75-80.
35 83 TTABVUE.

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Opposition No. 91221462

Opposer’s use, advertising or promotion of the PEDIGREE marks before her

September 2015 transition date, and her testimony about these events that took place

prior to that date should be disregarded. In particular, Applicant argues, Ms. Bolin

may not testify regarding the first use or continuing use of Opposer’s pleaded

registered marks. In the absence of such evidence, Applicant maintains that the

earliest date on which Opposer can rely is the filing date of the applications

underlying Opposer’s registrations, citing Levi Strauss & Co. v. R. Josephs

Sportswear Inc., 28 USPQ2d 1464, 1467 (TTAB 1993).36

As Opposer correctly notes, however, testimony by a person that her job

responsibilities require her to be familiar with the activities of the company that

occurred prior to her employment may be sufficient to lay a foundation for her

subsequent testimony about such activities. See City Nat’l Bank v. OPGI Mgmt. GP

Inc./Gestion OPGI Inc., 106 USPQ2d 1668, 1673 (TTAB 2013), cited in Kemi

Organics, LLC v. Gupta, 126 USPQ2d 1601, 1609 (TTAB 2018). In this case, Ms. Bolin

was asked:

Q. What were your responsibilities as Pedigree brand manager?

A. I was responsible for managing the entire Pedigree business. That
includes anything from setting the brand strategy, the innovation
plans, product innovation, all of the advertising related to the brand,
all of the media placements of that advertising, all of the consumer
promotions, any offers. Basically everything consumer-facing and in
line with the support and sale of the brand.37

…

Q. Based on your background and experience, do you have knowledge

36 83 TTABVUE 3-4.
37 Bolin dep. 10:14-21, 49 TTABVUE 13.

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Opposition No. 91221462

about how [Opposer] uses its Pedigree trademarks?

A. Yes.

Q. Do you have knowledge about the products that [Opposer] has offered
under the Pedigree trademarks?

A. Yes.

Q. Do you have knowledge regarding the advertising and promotions that
[Opposer] has used for the Pedigree products?

A. Yes.

Q. Do you have knowledge regarding the volume of sales [Opposer] has
had for Pedigree products in the U.S.?

A. Yes.

Q. Do you have knowledge regarding the steps [Opposer] has taken to
protect and enforce its Pedigree trademarks?

A. Yes.38

…

Q. How did you become familiar with the history of the Pedigree brand?

A. Through brand historical documents and day-to-day operation of the
brand.39

We find Ms. Bolin’s testimony sufficient to lay a foundation for her subsequent

testimony, all of which, taken together, clearly establishes that her job

responsibilities have required her to be familiar with the use, advertising, and

promotion of the PEDIGREE marks before and during her employment as Opposer’s

PEDIGREE brand manager, and afterward, as its marketing operations director. See

Kemi Organics v. Gupta, 126 USPQ2d at 1609.

38 Bolin dep. 11:13-12:8, 49 TTABVUE 14-15.
39 Bolin dep. 12:24-13:3, 49 TTABVUE 16-17.

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Opposition No. 91221462

Applicant further objects that Opposer’s designation of Ms. Bolin as its corporate

representative in its reply brief constitutes improper rebuttal: “Opposer’s Notice of

Testimony Deposition did not identify Ms. Bolin as Opposer’s Rule 30(b)(6) witness

or state with particularity the matters for examination.40 As such, Ms. Bolin was not

a Rule 30(b)(6) witness and her testimony was required to have been based on

personal knowledge or admissible exhibits.”41 However, Rule 30(b)(6) is designed to

facilitate discovery depositions. See generally Fed. R. Civ. P. 30(b)(6), cited in TBMP

§ 404.06(b); Red Wing Co. v. J.M. Smucker Co., 59 USPQ2d 1861, 1864 (TTAB 2001)

(“When a corporation is named by a party seeking discovery as a deponent, the subject

matter of the deposition is to be described with reasonable particularity in the notice.

It is then incumbent upon the corporation to designate one or more persons to testify

on its behalf, and these persons must testify as to matters known or reasonably

available to the corporation.”). It has no relevance to the testimony of a party’s own

witness. Indeed, given that a party may submit testimony in the form of an affidavit

or a declaration, with no notice whatsoever, it would be incongruous to require the

party to note its own representative’s deposition via Rule 30(b)(6). See Trademark

Rule 2.123(a)(1), 37 C.F.R. § 2.123(a)(1); TBMP § 703.01(b). We find that Opposer

complied with the applicable rules in noting and taking the testimonial deposition of

Ms. Bolin,42 and Applicant’s objection is overruled. See TBMP § 703.01(e),

Applicant’s concern that Ms. Bolin could not testify about Opposer’s dates of first

40 Bolin Dep. 49 TTABVUE 98-100 & ex. 1.
41 87 TTABVUE 3.
42 49 TTABVUE 98-100.

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Opposition No. 91221462

use of its marks is misplaced. Opposer made its pleaded PEDIGREE registrations of

record in its amended notice of opposition43 and in a notice of reliance.44 See

Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d). As a result, priority is not an issue as

to the registered PEDIGREE marks and the associated goods and services. King

Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA

1974).

Second, Applicant contends that Bolin deposition exhibits 3 through 25 are

inadmissible. Specifically, it contends that exhibits 3 and 4, TESS printouts of

Registration nos. 1679350 and 4268435 for PEDIGREE marks, could not be

introduced via Ms. Bolin’s testimony.45 It also objects to her testimony regarding a

PEDIGREE newsletter distributed by Opposer, an example of which is appended to

exhibit 3. As noted above, however, the registrations — which are official records of

the USPTO — are already of record, and Ms. Bolin, as former PEDIGREE brand

manager, could testify about them.46 She could also testify that during her time as a

brand manager, Opposer distributed a PEDIGREE newsletter like the one appended

43 46 TTABVUE 14, et seq.
44 42 TTABVUE & ex. 26.
45 83 TTABVUE 4-5.
46 Applicant contends that Ms. Bolin is not competent to testify, among other things, to
Opposer’s ownership of the 1679350 Registration, which originally issued to another
company. Nonetheless, the official record of the ’350 Registration, which Opposer submitted
in evidence, indicates that it is currently owned by Opposer. In itself, the registration is
“prima facie evidence of the validity of the registered mark and of . . . the owner’s ownership
of the mark.” Trademark Act § 7(b). While Ms. Bolin’s testimony was admissible, it was
unnecessary to establish the validity of the registration or Opposer’s ownership of it. Absent
a counterclaim or separate petition to cancel the registration, Applicant cannot question its
validity or Opposer’s ownership of it. Trademark Rule 2.106(3)(ii).

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Opposition No. 91221462

to the registration in exhibit 3.47

Applicant contends that Bolin deposition exhibits 4-13 and 18-19 contain hearsay,

and may only be admitted for what the documents show on their face, not to prove

the truth of what has been printed on them.48 Applicant does not elaborate on this

contention. As Opposer correctly notes, “Applicant fails to articulate how or why each

exhibit identified is hearsay, and leaves the Board to guess what specifically within

these exhibits is hearsay, and why.”49

As noted above, exhibit 4 is a TESS printout of Registration no. 4268435 for the

standard character mark PEDIGREE for use on cups and bowls. The registration is

properly of record, and Ms. Bolin was competent to testify that Opposer has

distributed cups and bowls bearing the PEDIGREE mark.50 Exhibit 5 contains

pictures of promotional items, such as a lunch box, a beach towel, a T-shirt, an

umbrella and a smart phone case, all bearing PEDIGREE brands. Ms. Bolin

authenticated the pictures and testified that all of the items were distributed in the

United States.51 Exhibit 6 is a TESS printout of Registration no. 4168866 for

PEDIGREE FOUNDATION. The registration is of record, and Ms. Bolin properly

testified about the services provided under the mark?promoting animal adoption,

responsible pet ownership, and the proper care and treatment of pets?and the

47 Bolin dep. 18:18-19:21, 49 TTABVUE 21-22.
48 83 TTABVUE 5-6.
49 85 TTABVUE 6.
50 Bolin dep. 20:22-25, 49 TTABVUE 23.
51 Bolin dep. 23:5-24:6, 49 TTABVUE 26-27.

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Opposition No. 91221462

promotional items, such as leashes, dog collars, and dog bowls bearing the

PEDIGREE FOUNDATION mark, sold to promote its services.52 Exhibit 7 consists

of web pages from Zazzle.com showing promotional items offered under the

PEDIGREE FOUNDATION mark. The web pages display the URL and date of

downloading,53 and are admissible to show the use of the mark as displayed to the

public on the face of the web pages. In re Wal-Mart Stores, Inc., 129 USPQ2d 1148,

1156 n.38 (TTAB 2019) (“Internet evidence that includes the URL and the date the

material was accessed is generally admissible and may be considered for purposes of

evaluating a trademark.”); Harry Winston, Inc. v. Bruce Winston Corp., 111 USPQ2d

1419, 1428 (TTAB 2014) (“[S]uch materials are frequently competent to show, on their

face, matters of relevance to trademark claims (such as public perceptions),

regardless of whether the statements are true or false. Accordingly, they will not be

excluded outright, but considered for what they show on their face.”). And Ms. Bolin

could properly testify about the sale of the promotional items.54

Exhibit 8 is a printout of the PedigreeFoundation.org website.55 The exhibit

displays the website’s URL and date of downloading, and Ms. Bolin explains how

Opposer uses the website to promote the services of the PEDIGREE

FOUNDATION.56 None of that is hearsay. Exhibits 9-11 are printouts from the

52 Bolin dep. 25:4-27:17, 29:6-30:3, 49 TTABVUE 28-30, 32-33.
53 Zazzle.com/PedigreeFoundation/gifts dated May 30, 2017, 49 TTABVUE 119-30.
54 Bolin dep. 28:21-29:5, 49 TTABVUE 31-32.
55 PedigreeFoundation.org, 6/1/2017, 49 TTABVUE 131-33.
56 Bolin dep. 30:16-24, 49 TTABVUE 33.

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Opposition No. 91221462

Pedigree.com website showing PEDIGREE branded dry and wet dog food and

treats.57 Ms. Bolin testified that Opposer sells the items depicted in the exhibits in

the United States, and further testified, based on her experience and job

responsibilities as brand manager, about the website traffic, all of which testimony is

admissible.58 Exhibit 12 is a printout from the websites Chewy.com and Target.com

depicting PEDIGREE treats and dog food, and their prices, according to Ms. Bolin.59

This documentary and testimonial evidence is admissible to show the goods sold

under Opposer’s PEDIGREE marks and their prices. Exhibit 13 is a printout of an

article from Pedigree.com about pet grooming entitled “All Things Dog – A Short

History of Poodle Grooming.”60 Ms. Bolin explained that Opposer offers information

about pet grooming on its website to promote responsible pet ownership.61 The

printout is admissible to show that Opposer offers this information under one of its

PEDIGREE marks. Harry Winston, Inc. v. Bruce Winston Corp., 111 USPQ2d at

1428.

Exhibit 18 contains printouts from Animal Planet and from the PEDIGREE

Facebook page relating to Opposer’s sponsorship of television programs?specifically,

the “Puppy Bowl,” presented annually on the day before the Super Bowl, and “The

57 Pedigree.com 5/30/2017, 49 TTABVUE 134-45.
58 Bolin dep. 32:7-20, 36:5-22, 37:11-24, 39:25-40:5, 49 TTABVUE 36, 39-40, 43-44.
59Chewy.com 11/9/2015, Target.com 11/9/2015, Bolin dep. 40:15-42:3, 49 TTABVUE 43-45,
146-52.
60 Pedigree.com 9/2/2016, 49 TTABVUE 153-60.
61 Bolin dep. 42:8-13, 43:22-23, 44:6-12, 49 TTABVUE 45, 46, 47.

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Opposition No. 91221462

View’s Annual Mutt Show.”62 Exhibit 19 depicts Opposer’s sponsorship of the

Westminster Kennel Club dog show, a NASCAR driver, and a National Hockey

League team.63 Ms. Bolin authenticated the exhibits and testified about the

sponsorships, which are relevant to establishing the commercial strength of the

PEDIGREE marks.64 These exhibits, and her testimony, are admissible. Applicant’s

objections to Bolin deposition exhibits 4-13, 18 and 19 are overruled.

Applicant next objects to Bolin deposition exhibits 14-16, which Ms. Bolin

identified as printouts from Ebiquity, a service provider Opposer uses to track

Opposer’s market advertising of its pet food brands.65 The exhibits show by date how

Opposer’s PEDIGREE brand is displayed on public media, such as television,

magazines, newspapers, and radio. For example:

62 49 TTABVUE 236-37.
63 49 TTABVUE 238-49.
64 Bolin dep. 69:18-75:22, 49 TTABVUE 72-78.
65 Bolin dep. 46:3-58:5, exs. 14-16, 49 TTABVUE 49-63, 161-235.

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Opposition No. 91221462

66

Applicant objects that these exhibits constitute inadmissible hearsay to which no

exception applies. Applicant argues that they do not constitute business records

under Fed. R. Evid. 803(6), as they were not prepared by Opposer at or near the time

the advertisements ran, between 2012 and 2015, and were, in fact, prepared by

Ebiquity at Ms. Bolin’s request in November 2015.67 Opposer responds that the

exhibits were properly authenticated by Ms. Bolin, and fall within the business

records exception.68

The record indicates that the printouts in exhibits 14-16 are not records regularly

kept by Opposer, contemporaneously with its market advertising; they were instead

produced by Ebiquity years later at Ms. Bolin’s request, for use in this litigation.69

“[A] record created expressly for litigious rather than business purposes is not

66 49 TTABVUE 162.
67 83 TTABVUE 6.
68 85 TTABVUE 10-11.
69 Bolin dep. 46:7-9, 49 TTABVUE 49.

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Opposition No. 91221462

admissible under the business records exception to the hearsay rule.” Pfizer Inc. v.

Cody John Cosmetics, Inc., 211 USPQ 64, 67 n.3 (TTAB 1981) (citing Fed. R. Evid.

803(6); Weinstein’s Evidence 803-40, 803-177)); see also Flowers Indus. Inc. v.

Interstate Brands Corp., 5 USPQ2d 1580, 1582 n.4 (TTAB 1987) (“Nor does it qualify

as a business record within the meaning of Rule 803(6) of the Federal Rules of

Evidence, because it was generated specifically for use in connection with this

proceeding.”). Hence, the printouts do not qualify as business records under Federal

Rule of Evidence 803(6).

Even so, while Opposer cannot rely on the business records hearsay exception

under Fed. R. Evid. 803(6), it can rely on Ms. Bolin’s testimony. Ms. Bolin

authenticated exhibits 14, 15, and 16, and testified that the contents of the documents

were accurate.70 See Fed. R. Evid. 901(a), (b)(1); TBMP §§ 702.02; 704.08(c). Ms.

Bolin’s testimony about the contents of these documents is admissible, and Applicant

has not demonstrated that the documents are other than what they appear to be, or

that this evidence lacks trustworthiness. Consequently, the printouts and testimony

together show how market advertisements of the PEDIGREE brand have been

circulated and shown to the public. See Rocket Trademarks Pty Ltd. v. Phard S.p.A.,

98 USPQ2d 1066, 1072 (TTAB 2011); Standard Knitting Ltd. v. Toyota Jidosha K.K.,

77 USPQ2d 1917, 1931 n.26 (TTAB 2006); Blue Man Prods. Inc. v. Tarmann, 75

USPQ2d 1811, 1813 (TTAB 2005); Hard Rock Café Int’l (USA) Inc. v. Elsea, 56

USPQ2d 1504, 1508 (TTAB 2000). Applicant’s objection is overruled to this extent.

70 Bolin dep. 51:8-10, 57:7-15, 49 TTABVUE 54, 60.

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Opposition No. 91221462

Bolin deposition exhibit no. 22 is a year-by-year summary of Opposer’s sales,

advertising and promotional figures for the PEDIGREE brand in the United States,

from 2003 through 2016.71 Applicant objects that the summary is inadmissible

because it was not produced in discovery, contains hearsay to which no exception

applies, was improperly authenticated, and was not accompanied by the originals or

duplicates of the voluminous documents it summarized.72 We agree with Opposer,

however, that this exhibit is admissible as a summary of voluminous business

records. See Fed. R. Evid. 803(6), 1006 (business records and summaries). The

presentation of summary data “is quite proper and has been encouraged by our

reviewing court.” Yamaha Int’l Corp. v. Hoshino Gakki Co., 231 USPQ 926, 928

(TTAB 1986) (citing Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 n.4

(Fed. Cir. 1983) (summary properly introduced by testimony)), aff’d, 840 F.2d 1572,

6 USPQ2d 1001 (Fed. Cir. 1988). Ms. Bolin was well-positioned to know or have access

to information relevant to the substance of her testimony and the exhibit she

authenticated. See Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1013-14

(TTAB 2015). It was apparent from her testimony that she had knowledge of the

magnitude of Opposer’s sales, advertising and promotional figures. See W. End

Brewing Co. of Utica v. S. Australian Brewing Co., 2 USPQ2d 1306, 1308 n.3 (TTAB

1987). She was thus an appropriate witness to authenticate this exhibit. Ms. Bolin

identified the exhibit, described how Opposer tracks its sales, advertising and

71 Bolin dep. ex. 22, 50 TTABVUE 33 (confidential).
72 83 TTABVUE 7.

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Opposition No. 91221462

promotional figures in the ordinary course of its business, and testified how the

exhibit accurately summarizes those figures.73 When Opposer introduced this exhibit

during Ms. Bolin’s testimony, Applicant’s counsel stated, “I’m not sure that

everything on the document was previously produced, so we would object to anything

on the document that was not previously produced.”74 In the deposition and in its

brief, Opposer maintains that it produced sales and advertising figures during

discovery.75 Moreover, there is no indication that Applicant sought to review the

documents underlying this summary. Exhibit 22 is therefore admitted, and

Applicant’s objection is overruled.

Ms. Bolin identified deposition exhibit 20 as a 2015 promotional and advertising

agreement, maintained in the regular course of Opposer’s business, licensing Minor

League Baseball to display PEDIGREE brands.76 And she identified exhibits 23, 24,

and 25, from Opposer’s records, as Opposer’s settlement agreements with third

parties, restricting their use and registration of the marks PETAGREE, PEDIGREE

PERFECTION, and PEDIGREEN.77 Applicant objects that these exhibits were not

produced during discovery, and that Ms. Bolin was not competent to authenticate

them. Opposer responds that Ms. Bolin properly authenticated these exhibits.78

Applicant does not identify any discovery request seeking identification or production

73 Bolin dep. 83:4-86:7, 50 TTABVUE 8-11 (confidential).
74 Bolin dep. 82:4-7, 50 TTABVUE 7 (confidential).
75 Bolin dep. 81:25-82:3, 50 TTABVUE 7-8, Opposer’s brief, 85 TTABVUE 12.
76 Bolin dep. 77:19-79:7, ex. 20, 50 TTABVUE 5-7, 15-32 (confidential).
77 Bolin dep. 89:4-exs. 23-25, 50 TTABVUE 12-22,34-48 (confidential).
78 Opposer’s rebuttal brief (confidential), 86 TTABVUE 3.

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Opposition No. 91221462

of these documents, and for the same reasons as those elaborated upon above, Ms.

Bolin was competent to identify and provide testimony about them. These objections

are not well taken, and are overruled.

Opposer’s notice of reliance exhibit 31 consists of copies of Opposer’s Specimens of

Use, Declarations of Use, and Statements of Use for its registrations.79 Applicant

objects to consideration of the dates of use and specimens, arguing that they are not

evidence of first or continuing use.80 See Trademark Rule 2.122(b)(2). The specimens

in Opposer’s registration files “are not evidence on behalf of the . . . registrant unless

identified and introduced in evidence as exhibits during the period for the taking of

testimony.” Trademark Rule 2.122(b)(2). Because Opposer could not introduce the

specimens in its registration files by notice of reliance, we have disregarded them. As

we have noted, however, Opposer has made its pleaded registrations of record in its

amended notice of opposition81 and in a notice of reliance.82 See Trademark Rule

2.122(d), 37 C.F.R. § 2.122(d), making priority irrelevant as to the registered

PEDIGREE marks. King Candy v. Eunice King’s Kitchen, 182 USPQ at 110.

Opposer’s notice of reliance exhibits 34-56 consist of printed publications, such as

periodicals and website printouts, available to the general public.83 Applicant states

that these documents “would be admissible for what they show on their face,” but

79 43 TTABVUE 4-5, 119-79.
80 83 TTABVUE 9.
81 46 TTABVUE 14, et seq.
82 42 TTABVUE & ex. 26.
83 45 TTABVUE.

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Opposition No. 91221462

objects that they “may not be relied upon for the truth of the matters asserted

therein.”84 Opposer responds that “Applicant makes a sweeping objection to Exhibits

34-56…, [but] Applicant’s objection misses the point?Opposer introduced Exhibits

34-56 for what they show on their face (as Applicant conceded is appropriate), not for

the truth of the matters asserted therein.”85 We find that all of these exhibits

constitute printed publications that may be admitted by notice of reliance.

Trademark Rule 2.122(e)(1),(2), 37 C.F.R. §§ 2.122(e)(1)-(2). Exhibit 45 is dictionary

evidence regarding the pronunciation of “d” and “t,” which is relevant to the phonetic

similarity or dissimilarity of the parties’ PEDIGREE and PET-AGREE marks.86

The remaining exhibits consist of Internet web pages and news publications. See

In re Wal-Mart Stores, 129 USPQ2d at 1156 n.38 (internet web pages); Safer, Inc. v.

OMS Invs., Inc., 94 USPQ2d 1031, 1039 (TTAB 2010) (same); Barclays Capital Inc.

v. Tiger Lily Ventures Ltd., 124 USPQ2d 1160, 1165 (TTAB 2017) (news publications).

Although these sources may only be considered for what they show on their face, TV

Azteca, S.A.B. De C.V. v. Martin, 128 USPQ2d 1786, 1790 (TTAB 2018), TBMP

§ 704.08, what they show on their face can be quite probative. Exhibits 40-44 consist

of printouts from Opposer’s and Applicant’s websites, including social media

84 83 TTABVUE 10.
85 85 TTABVUE 15.
86 Opposer’s notice of reliance, ex. 45, LearnersDictionary.com 11/2/2016 (in American
English, “d” and “t” are pronounced alike if they are “between vowels when the following
vowel is not stressed”). 45 TTABVUE 403-05. The Board may take judicial notice of dictionary
definitions, including online dictionaries that exist in printed format. In re Cordua Rests. LP,
110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir.
2016).

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Opposition No. 91221462

websites, which show on their face the parties’ use of their marks in connection with

offering goods and services for sale to the public. Exhibits 46-48 are third-party

websites selling pet treats, pet grooming supplies, and PEDIGREE products, as well

as Opposer’s trade show participation. This evidence is relevant to the similarity or

dissimilarity of the parties’ goods and services, channels of trade, and classes of

customers, and that relevance is apparent on the face of the exhibits.

The remaining exhibits in this notice of reliance show media attention evidencing

public exposure and reputation of Opposer’s PEDIGREE marks, which is relevant to

the commercial strength of those marks. See Alcatraz Media, Inc. v. Chesapeake

Marine Tours Inc., 107 USPQ2d 1750, 1758-59 (TTAB 2013) (articles and Internet

printouts are competent evidence of exposure to the public). Cf. In re FabFitFun, Inc.,

127 USPQ2d 1670, 1674 (TTAB 2018) (“Internet printouts, such as those offered by

Applicant, ‘on their face, show that the public may have been exposed to those

internet websites and therefore may be aware of the advertisements contained

therein.’”).87 By the same token, Exhibit 68 consists of online articles concerning a

pledge that for each “Annie the Musical” ticket sold, Pedigree would donate two

dollars, up to one million dollars, to the PEDIGREE Foundation, a nonprofit

organization dedicated to helping shelter dogs find adoptive homes.88 The articles will

87Opposer’s exhibit 64 purports to be evidence of third-party videos posted on Applicant’s
Facebook website where customers pronounce PET-AGREE the same as PEDIGREE. 77
TTABVUE 3, 78 TTABVUE 149-51. The record does not include legible printouts or video or
audio recordings of these postings, so this exhibit has not been considered. Applicant’s
hearsay objection is moot.
88Notice of reliance ex. 68, 78 TTABVUE 177-99, FidoFriendly.com, PRNewswire.com,
Theatermania.com 7/3/2018.

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Opposition No. 91221462

be considered for what they show on their face evidencing public exposure and

reputation of the PEDIGREE marks, including the PEDIGREE FOUNDATION

mark. Applicant’s hearsay objections are overruled.

Opposer objects to Applicant’s introduction of web pages from Applicant’s

Petagree.net website, retrieved via the Archive.org Wayback Machine.89 As Applicant

points out, though, its Sales Manager, Keili Somerlot, authenticated the web pages

as “true and correct copies of captures of [Applicant’s] website home page over the

period of February 16, 2003 to August 12, 2017.”90 Opposer argues that the website

printouts should nonetheless be accorded very little, if any, evidentiary weight.91 We

will consider this as evidence of the historic appearance of Applicant’s website. See

Paris Glove of Canada, Ltd. v. SBC/Sporto Corp., 84 USPQ2d 1856, 1858 (TTAB

2007). “Ultimately, the Board is capable of weighing the relevance and strength or

weakness of the objected-to testimony and evidence, including any inherent

limitations, and this precludes the need to strike the testimony and evidence.” Inter

IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1737 (TTAB 2014). Opposer’s

objection is overruled, and the evidence will be accorded its appropriate weight.

II. Standing and Priority

Standing is a threshold issue that must be proven by the plaintiff in every inter

partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111

89Opposer’s brief, 89 TTABVUE 13 n.1, objecting to Applicant’s notice of reliance, exs. 22-37,
60 TTABVUE 2, 5-7, 11-57.
90 Somerlot decl. ¶ 26, 58 TTABVUE 6-7, Applicant’s brief, 82 TTABVUE 7.
91 Opposer’s rebuttal brief, 84 TTABVUE 24-25.

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Opposition No. 91221462

USPQ2d 1058, 1062 (Fed. Cir. 2014). A plaintiff must demonstrate that he possesses

a “real interest” in the proceeding and “a reasonable basis for his belief of damage.”

Id. (citing ShutEmDown Sports, Inc. v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012);

Ritchie v. Simpson, 170 F.3d 1902, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999)). A “real

interest” is a “direct and personal stake” in the outcome of the proceeding. Ritchie v.

Simpson, 50 USPQ2d at 1026. Opposer’s standing to oppose registration of

Applicant’s PET-AGREE mark based on likelihood of confusion and dilution is

established by its PEDIGREE registrations that are valid and subsisting. See, e.g.,

Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.

2000); N.Y. Yankees P’ship v. IET Prods. & Servs., Inc., 114 USPQ2d 1497, 1501

(TTAB 2015). Opposer has accordingly established its standing.

Applicant does not challenge Opposer’s standing. With respect to priority, it “does

not dispute that Mars can establish priority in this action for at least its oldest

PEDIGREE mark.”92 However, it is not necessary that this or any of the other

registrations on which Opposer relies predate applicant’s filing date or first use date.

Because Opposer’s pleaded registrations are of record, priority is not at issue with

respect to the goods and services covered by those registrations. Mini Melts, Inc. v.

Reckitt Benckiser LLC, 118 USPQ2d 1464, 1469 (TTAB 2016) (citing King Candy v.

Eunice King’s Kitchen, 182 USPQ at 110).

III. Likelihood of Confusion

We base our determination of likelihood of confusion under Trademark Act Section

92 Applicant’s brief, 82 TTABVUE 8 n.2.

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Opposition No. 91221462

2(d) on an analysis of all of the probative facts in evidence that are relevant to the

factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ

563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,

575 U.S. __, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Guild

Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019). In the course

of applying the DuPont factors, we bear in mind the fundamental purposes

underlying Section 2(d), which are to prevent confusion as to sources and

relationships, and to protect mark owners from damage caused by registration of

confusingly similar marks. Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34

USPQ2d 1161, 1163 (1995); Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189,

224 USPQ 327, 331 (1985); DuPont, 177 USPQ at 566.

We have considered each DuPont factor that is relevant, and have treated any

other factors as neutral. See Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127

USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342,

94 USPQ2d 1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant

to every case, and only factors of significance to the particular mark need be

considered.”)); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242

(TTAB 2015) (“While we have considered each factor for which we have evidence, we

focus our analysis on those factors we find to be relevant.”). Opposer bears the burden

of proving its claim by a preponderance of the evidence. Cunningham, 55 USPQ2d at

1848. Varying weights may be assigned to each DuPont factor depending on the

evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344,

98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26

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Opposition No. 91221462

USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more

or less weighty roles in any particular determination”). Two key considerations are

the similarities between the marks and the relatedness of the goods or services. See

Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29

(CCPA 1976) (the “fundamental inquiry mandated by § 2(d) goes to the cumulative

effect of differences in the essential characteristics of the goods [and services] and

differences in the marks.”); In re FabFitFun, 127 USPQ2d at 1672.

A. Similarity of the Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of

Applicant’s and Opposer’s marks in their entireties, taking into account their

appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at

567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110

USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imps., Inc. v. Veuve Clicquot

Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.

2005). “The proper test is not a side-by-side comparison of the marks, but instead

whether the marks are sufficiently similar in terms of their commercial impression

such that persons who encounter the marks would be likely to assume a connection

between the parties.” In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744,

1748 (Fed. Cir. 2017) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d

1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)).

Applicant argues that the parties’ marks differ in appearance, connotation, and

sound, all of which adds up to different commercial impressions. If the marks are

considered in their entireties, it argues, any consumer could easily recognize and

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Opposition No. 91221462

understand that the terms PET-AGREE and PEDIGREE have very different

appearances. “PET-AGREE is formed of two different, distinct, commonly used and

easily recognized words separated by a hyphen. PEDIGREE is a single, distinct, and

commonly used … word.”93 In terms of connotation, it argues, “PEDIGREE implies a

high-quality, purebred, and highly desirable animal, and the like. To the contrary,

PET-AGREE is the combination of two distinct words, PET and AGREE. When used

in combination, they imply that the services offered under the mark are found

agreeable by pets.”94

In terms of sound, Applicant asserts:

[T]he terms ‘pedigree,’ ‘pet,’ and ‘agree’ are all common, recognized words
in English that have known pronunciations in the English language,”
Moreover, pronunciation of PET-AGREE results in emphasis on the term
“PET” with descending emphasis and descending lilt thereafter.
Pronunciation of the term “AGREE” has primary emphasis on the letter
“A” and less emphasis on the letters “GREE”. To the contrary,
pronunciation of the term “PEDIGREE” has ascending emphasis and lilt
ending on a lingering pronunciation of the “EE” portion of the term.
Because the known pronunciation of PET-AGREE would be different than
PEDIGREE, a normal United States purchaser would be able to
distinguish there words aurally.95

Moreover, Applicant contends, “[E]ven if the Board finds the marks phonetically

similar, that is insufficient, alone, to lead to a likelihood of confusion.”96 “Because

93 Applicant’s brief, 82 TTABVUE 16-17.
94Id., 82 TTABVUE 17; “Pedigree”: “a distinguished ancestry … the recorded purity of an
individual or strain…. As in ‘What is the dog’s pedigree?’” Merriam-Webster.com 12/21/2016,
Applicant’s notice of reliance, 60 TTABVUE 60.
95 Id. 82 TTABVUE 18.
96Id. 82 TTABVUE 19 (citing Standard Brands v. E. Shore Canning Co., 172 F.2d 144, 80
USPQ 318, 320-21 (4th Cir. 1949) (no confusion between V-8 for vegetable juice and VA for
tomato juice despite similar pronunciation).

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Opposition No. 91221462

PET-AGREE and PEDIGREE have different appearances, different connotations,

and distinguishable sounds, the marks have very different overall commercial

impressions,” Applicant concludes.97

We agree with Opposer, though, that the parties’ marks are more similar than

dissimilar. Contrary to Applicant’s argument, “[s]imilarity in any one of the

elements[, sight, sound, meaning, or commercial impression,] may be sufficient to

find the marks confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB

2014); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523,

526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound

alone is likely to cause confusion.”), cited in In re Inn at St. John’s, LLC, 126 USPQ2d

1742, 1746 (TTAB 2018). As the Board has stated, “In a particular case, “two marks

may be found to be confusingly similar if there are sufficient similarities in terms of

sound or visual appearance or connotation.” Kabushiki Kaisha Hattori Seiko v.

Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB 1991), aff’d mem., 979 F.2d 216

(Fed. Cir. 1992).

Opposer’s marks consist of or contain the dominant component PEDIGREE. As

Opposer correctly observes, PEDIGREE and PET-AGREE are similar in sight and

sound. In terms of appearance, both have the same number of letters, the same

number of syllables, and the same structure, beginning with “PE” and ending with

“GREE.” In terms of sound, they are practically phonetic equivalents. Both are three

syllables, with the same cadence. Although Applicant asserts that they would be

97 Id. 82 TTABVUE 19.

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Opposition No. 91221462

pronounced differently, Opposer adduces dictionary evidence that the difference

between the pronunciation of “T” and “D” in the marks would be slight.98 See Pfizer

Inc. v. Cody John Cosmetics, Inc., 211 USPQ 64, 68-69 (TTAB 1981) (citing the Guide

to Pronunciation in WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY: “The

phonetic similarity of ‘COTY’ and ‘CODY’ is marked. … [M]any Americans are apt to

use the voiced flap consonant for both ‘COTY’ and ‘CODY’, in which case the names

are identical in sound”). The hyphen, in Applicant’s mark, would not be pronounced,

and would not distinguish its sound from that of Opposer’s mark. See Mini Melts, 118

USPQ2d at 1470 (“the hyphen in Applicant’s mark MINI-MELTS does not

distinguish it from Opposer’s mark [MINI MELTS]”). Hence, the difference in sound

is so slight that consumers who hear the marks spoken by others are not likely to

even notice the difference. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1912

(Fed. Cir. 2012) (“any minor differences in the sound of these marks may go

undetected by consumers and, therefore, would not be sufficient to distinguish the

marks.”).

This marked similarity in structure and sound supports a finding of similarity.

See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018)

(quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ2d 749, 752 (Fed. Cir. 1985)

(finding marks similar because they “are, in large part, identical in sound and

appearance and have a general similarity in cadence.”)); Krim-Ko v. Coca-Cola, 156

98 LearnersDictionary.com 11/2/2016 (in American English, “d” and “t” are pronounced alike
if they are “between vowels when the following vowel is not stressed”) Opposer’s notice of
reliance, ex. 45, 45 TTABVUE 403-05, cited in Opposer’s brief, 80 TTABVUE 21-22.

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Opposition No. 91221462

USPQ at 526 (“Despite specific differences in spelling … the dominant factor for

consideration is the likelihood of confusion arising from the similarity in sound of the

two words [VEEP and BEEP] when spoken.”). Even though some of Opposer’s

registered marks have design elements, “the words are normally accorded greater

weight because they are likely to make a greater impression upon purchasers, to be

remembered by them, and to be used by them to request the goods. See In re Viterra,

101 USPQ2d at 1908 (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200

(Fed. Cir 1983)). The literal portion of a word and design mark “likely will appear

alone when used in text and will be spoken when requested by consumers.” In re

Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018). This is especially

true in this case, where the application and registrations are for goods or services

that may be promoted, referred to or recommended by word of mouth. See In re 1st

USA Realty Prof’ls., Inc., 84 USPQ2d 1581, 1586 (TTAB 2007). Applicant makes an

average of 375-750 telephone sales “cold calls” per month (4,500-9,000 cold calls per

year), in which prospective customers would hear the mark but not see it.99

Approximately fifty to sixty percent of Applicant’s sales are made through its call

center.100 It does not provide its employees any instruction on how to pronounce “PET-

AGREE.”101

Turning to consideration of the connotation and commercial impression of the

marks, we note that the average consumer retains a general rather than specific

99 Somerlot dep. at 31:24-32:8, 80:18-81:8, 94:2-16, 79 TTABVUE 35-36, 83-84, 97.
100 Somerlot dep. at 79:17-21, 79 TTABVUE 82.
101 Rhoades dep. at 73:5-7, 81:11-20, 44 TTABVUE 20, 27.

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Opposition No. 91221462

impression of marks. In re FabFitFun, 127 USPQ2d at 1675. Since the similar-

sounding PET-AGREE could easily be perceived as a play on the word PEDIGREE,

those consumers “who do notice the difference in the marks will not necessarily

conclude that there are different sources for the goods [or services], but will see the

marks as variations of each other, pointing to a single source.” In re Hitachi High-

Technologies Corp., 109 USPQ2d 1769, 1774 (TTAB 2014).102 The fact that Opposer

owns a number of variant PEDIGREE-formative marks enhances this consumer

perception.

In sum, we find the marks similar in sight, sound, connotation, and commercial

impression.

The first DuPont factor thus weighs in favor of finding a likelihood of confusion.

B. Relatedness of the Goods and Services, Their Channels of Trade,
and Their Classes of Customers

The second DuPont factor concerns the “similarity or dissimilarity and nature of

the goods or services as described in an application or registration,” Stone Lion

Capital v. Lion Capital, 110 USPQ2d at 1159, and the third DuPont factor concerns

“[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” Id.

at 1161 (quoting DuPont, 177 USPQ at 567). Opposer’s most pertinent identified

102At oral argument, Applicant’s counsel denied that PET-AGREE was intended as
a play on the word PEDIGREE. “However, we must look to the likely consumer
perception of the mark in connection with the identified goods, rather than applicant’s
intended connotation.” UMG Recordings, Inc. v. Mattel, Inc., 100 USPQ2d 1868, 1886
(TTAB 2011). In doing so, we do not mean to imply that Applicant adopted its mark
in bad faith.

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Opposition No. 91221462

goods and services are, essentially, pet food, cups and bowls used to promote the sale

of pet food, and promotion of public awareness about responsible pet ownership and

the proper care and treatment of pets. Applicant’s identified services, once again, are

“wholesale and retail supply store services featuring pet grooming supplies; online

wholesale and retail services featuring pet grooming supplies.”

Applicant argues that it “is not registering its PET-AGREE mark for goods, let

alone for pet food—but instead for the above services.”103 Its marketing of “supply

store services featuring pet grooming supplies is directed to the pet professional and

not to the pet owner,” it argues. Even though the parties’ respective goods and

services are both “pet-related,” it contends, a finding of similarity cannot be “based

on whether a general term or overarching relationship can be found to encompass

them both.”104 “There is a distinction between a store offering pet supplies and

[Applicant’s] ‘supply store services featuring pet grooming supplies.’ … They are not

the same type of store, nor are they directed to the same market or customer.”

Applicant argues that its “customers look to [Applicant] to provide pet grooming

supplies to meet their professional needs. [Applicant’s] customers do not look to

[Applicant] to buy pet food.”105 Opposer “has not shown that pet food is the type of

product that would normally be offered by a supply store providing services

featuring pet grooming supplies,” Applicant concludes.106 “Moreover, professional

103 Applicant’s brief, 82 TTABVUE 20.
Id., 82 TTABVUE 19 (quoting Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d
104

1399, 1410 (TTAB 2010)).
105 Id., 82 TTABVUE 23 (citing Somerlot decl. ¶¶ 6-8, 12-16, 58 TTABVUE 3-5).
106 Id. 82 TTABVUE 20.

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Opposition No. 91221462

pet groomers do not confuse the pet grooming supplies they buy from us with dog

food, let alone pet food.”107

The issue, though, is not whether purchasers would confuse the parties’ goods or

services, but rather whether there is a likelihood of confusion as to the source of

those goods or services. In re Cook Med. Techs. LLC, 105 USPQ2d 1377, 1380 (TTAB

2012). In other words, the issue is “whether ‘the consuming public may perceive [the

respective goods and services of the parties] as related enough to cause confusion

about the source or origin of the goods and services.’” In re St. Helena Hosp., 774

F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v.

Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)), quoted

in In re FabFitFun, 127 USPQ2d at 1672. To support a finding of likelihood of

confusion, it is not necessary that the parties’ goods and services be identical or even

competitive. It is sufficient that they are related in some manner, or that the

circumstances surrounding their marketing are such that they would be encountered

by the same persons in situations that would give rise, because of the marks, to a

mistaken belief that they originate from the same source or that there is an

association or connection between their sources. See Hewlett-Packard v. Packard

Press, 62 USPQ2d at 1004; In re I-Coat Co., LLC, 126 USPQ2d 1730, 1737 (TTAB

2018). Evidence of relatedness may include news articles or other evidence showing

that the relevant goods and services are used together; advertisements showing that

they are advertised together or sold by the same source, or copies of prior use-based

107 Somerlot decl. ¶ 23, 58 TTABVUE 6.

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Opposition No. 91221462

registrations of the same mark for both Applicant’s services and the goods and

services listed in Opposer’s registrations. See, e.g., L’Oreal S.A. v. Marcon, 102

USPQ2d 1434, 1140 (TTAB 2012); In re Davia, 110 USPQ2d at 1817.

In this case, we find that the parties’ identified goods and services are sufficiently

related to contribute to source confusion. To demonstrate the relatedness of the

parties’ goods and services, Opposer adduces evidence of three dozen use-based third-

party registrations that cover pet grooming supplies and pet food under a single

mark.108 For example:

Registration Mark Pertinent Goods and Services
No.
3846635 ISLE OF DOGS Deodorizers and fragrances for pets; non-medicated grooming
preparation for pets, namely, hair care and skin care
preparations, and styling preparations for pets.
Pet food.
On-line retail store services and wholesale distributorship
services in the field of pet care, grooming, beauty, health and
wellness.
4029186 CANIS CALLIDUS Pet food; pet treats
Retail store and on-line retail store services featuring pet
supplies, namely … grooming products
2611979 HALO PURELY FOR Pet food, namely, dog food, cat food, edible dog treats, edible
PETS cat treats
Retail store, mail order catalog and internet retail services
featuring pet foods, nutritional supplements for pets, pet
treats, grooming aids for pets
4326698 WOOF GANG Dog treats; pet treats, retail shops featuring pet treats, pet
food, and pet supplies
Dog grooming services; pet grooming services; providing self-
service pet washing facilities
4512657 PET SHED Retail pet supply store services; online retail store services
featuring …pet treats, pet foods…, pet grooming aids.
4327683 HOWLISTIC Retail store services featuring pet supplies, pet food, pet toys,
and pet grooming products

108 43 TTABVUE 8-55; 76 TTABVUE 6-30; Opposer’s brief, 80 TTABVUE 26.

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Opposition No. 91221462

Registration Mark Pertinent Goods and Services
No.
4233122 HOLISTIC HOUND Retail store services featuring pet food, … pet treats and …
pet grooming tools
3873776 FETCHDOG Pet feeding bowls; pet grooming and cleaning products,
namely, brushes and combs
Pet food
4664024 PET CARESS Pet care kits comprising shampoo, conditioner, body spray;
pet fragrances; pet odor removers; pet shampoo and
conditioner; non-medicated grooming preparations for cats
and dogs
Pet food
4023538 BOOTS & BARKLEY Medicated grooming preparations for pets, namely, shampoos
Pet brushes; pet feeding dishes
Pet food; consumable pet chews…edible pet treats
2711145 SHAKE A PAW Retail pet store services featuring puppies, dog food, toys and
And Design treats, grooming supplies
3142473 COSMOPAWLITAN Retail pet products store; on-line services featuring but not
And Design limited to pet grooming products, and all-natural pet foods
and gourmet treats.
4660998 DIAMOND COLLAR Retail store services featuring pet supplies, pet food, pet
And Design accessories and grooming supplies
4401326 PAWNEWS On-line retail store services featuring pet food, pet supplies,
accessories, specialty products, namely, good, treats,
grooming aids

“As a general proposition, although use-based, third-party registrations alone are

not evidence that the marks shown therein are in use or that the public is familiar

with them, they nonetheless may have some probative value to the extent they may

serve to suggest that the goods are of a kind that emanate from a single source.” In

re I-Coat Co., 126 USPQ2d at 1738; see also Joel Gott Wines, LLC v. Rehoboth Von

Gott, Inc., 107 USPQ2d 1424, 1432 (TTAB 2013); In re Davey Prods. Pty Ltd., 92

USPQ2d 1198, 1203 (TTAB 2009) (citing In re Albert Trostel & Sons Co., 29 USPQ2d

1783, 1785-86 (TTAB 1993) and In re Mucky Duck Mustard Co., 6 USPQ2d 1467,

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Opposition No. 91221462

1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir.) (mem.)); In re Aquamar, Inc.,

115 USPQ2d 1122, 1126 n.5 (TTAB 2015); TRADEMARK MANUAL OF EXAMINING

PROCEDURE (TMEP) §1207.01(d)(iii). These third-party registrations thus tend to

show the relatedness of the parties’ goods and services.

To underscore the relatedness of the parties’ goods and services, Opposer adduces

Internet web pages purporting to show 18 third parties marketing and selling

grooming supplies and pet food online under the same marks.109 Applicant counters

that this third-party evidence is not probative of relatedness, as it encompasses large

stores such as Walmart, Target, and CVS, as well as large pet supply stores such as

Petco and PetSmart?all of which are unlike Applicant, a specialty supply store

featuring pet grooming supplies. Applicant contends that “a supply store featuring

pet grooming supplies is a specific type of store, distinct from a Petco, Walmart, or

Petsmart.”110 The emphasis on the word featuring does not preclude Applicant from

selling pet supplies other than pet grooming supplies. As Applicant’s sales manager,

Keili Somerlot, stated in her deposition:

Q. But the word “featuring” does not mean “only,” correct?

A. No.

Q. That’s correct, right?

A. Correct.111

45, 77, 78 TTABVUE; Opposer’s brief, 80 TTABVUE 26; Opposer’s reply brief, 84
109

TTABVUE 18.
110 Applicant’s brief, 82 TTABVUE 21.
111 Somerlot dep. 42:12-43:5, 79 TTABVUE 45-46.

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Opposition No. 91221462

Nonetheless, “[s]uch stores are specialty stores that prominently feature pet

grooming supplies,” Applicant maintains, “[Applicant’s] services are not in the same

market as big box stores, such as Petco, Target and grocery stores.”112

Applicant’s point is well taken, as “[i]t has long been held that the mere fact that

two different items can be found in a supermarket, department store, drugstore or

mass merchandiser store is not a sufficient basis for a finding that the goods are

related.” Morgan Creek Prods. Inc. v. Foria Int’l Inc., 91 USPQ2d 1134, 1142 (TTAB

2009) (collecting cases). Opposer’s marketing operations director testified, however,

that its PEDIGREE–branded goods were carried not only at superstores such as

Walmart and Target, or club stores such as Costco, but also at “basically every grocery

store in the U.S.[,] Pet specialty stores, PetSmart, Petco, and independent pet stores

as well,” all of which sell pet grooming supplies.113 Moreover, Opposer followed up by

asking Ms. Somerlot at her deposition to identify Applicant’s competitors:

Q. Who would you say [are Applicant’s] main competitors?

A. Groomer’s Choice, Ryan’s, Frank Rowe & Sons, Groomer’s Mall, PetEdge.114

Opposer then demonstrated that some of those competitors, as well as other

similarly situated small concerns, offered both grooming supplies and pet treats. For

example:

• Groomer’s Choice115

112 Applicant’s brief, 82 TTABVUE 22-23.
113 Bolin dep. 35:4-24, 49 TTABVUE 38.
114 Somerlot dep. 43:18-21, 79 TTABVUE 46; see also Somerlot decl. ¶ 18, 58 TTABVUE 5.
115 GroomersChoice.com 6/18/2018, 77 TTABVUE 63-66, 232-35.

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Opposition No. 91221462

• Ryan’s Pet Supplies116

116 RyansPet.com 6/18/2018, 77 TTABVUE 132-63.

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Opposition No. 91221462

• Halo Pets117

• Muttropolis118

Evidence that “a single company sells the goods and services of both parties, if

presented, is relevant to the relatedness analysis.” Hewlett-Packard v. Packard Press,

62 USPQ2d at 1004, cited in In re Integrated Embedded, 120 USPQ2d 1504, 1514-15

(TTAB 2016). Opposer’s evidence tends to show these third parties marketing pet

treats, rather than pet food, in conjunction with grooming supplies. Nonetheless,

these treats are related to Opposer’s pet food goods, inasmuch as both kinds of goods

117 HaloPets.com 6/20/2018, 78 TTABVUE 4-11.
118 Muttropolis.com 6/20/2018 78 TTABVUE 36-65.

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Opposition No. 91221462

are edible, commonly offered by one source under one mark, purchased together, and

fed to pets.

Like its competitors, Applicant sells, in addition to grooming supplies, bowls and

cups used to serve dogs food and water.119 These goods are identical to the bowls and

cups used to serve pet food that are identified in Opposer’s Registration No.

4268435,120 and they are complementary to the pet food and dog food identified in

over a dozen of Opposer’s registrations. See In re Cook Med. Techs., 105 USPQ2d at

1380 (“If goods are complementary in nature, or used together, this relatedness can

support a finding of likelihood of confusion.” (citing In re Martin’s Famous Pastry

Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984)). Applicant also

offered edible treats for sale, such as pork hide treats, pig ears, rawhide bones, salmon

filets, beer and liver treats, and peanut flavored stuffed bones under other

manufacturers’ brands.121 Although it subsequently stopped selling most of these

treats, and now claims it has no intention of resuming those sales, it still sells “bully

sticks” and deer antlers, which are chewable treats for dogs.122

119 Rhoades dep. 82:3-83:6, exs. 9-10, 44 TTABVUE 28-29, 45 TTABVUE 236-44, 253-59.
120 See Bolin dep. 20:11-25, 22:8-24, 49 TTABVUE 23, 25.
121Somerlot dep. 48:13-49:22, 79 TTABVUE 51-52; Rhoades decl. ex. 4, Applicant’s Spring
2015 catalog, 54 TTABVUE 89.
122 Rhoades dep. 75:2-76:4, 44 TTABVUE 22-24, dep. ex. 7, 44 TTABVUE 65-69, 147.
Opposer’s marketing operations director testified that Applicant’s dog treats, including bully
sticks and deer antlers, were in the same product category as Opposer’s DENTASTIX
product. Bolin dep. 38:10-39:15, 49 TTABVUE 41-42. Opposer’s registration for the mark
DENTASTIX is not one of the registrations pleaded in its amended notice of opposition, nor
does it contain the word PEDIGREE. Thus this testimony is relevant only insofar as it
furnishes further evidence that dog treats and dog food are related, as they may emanate
from the same source.

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Opposition No. 91221462

The fact that Applicant has sold the same or similar goods as Opposer under its

PET-AGREE service mark, even if the goods bear different trademarks, is relevant

for purposes of establishing the relationship between the goods and services of the

parties because it shows the provision of Applicant’s services and the sale of goods

identified by Opposer by a common source — Applicant itself. See TBC Corp. v. Grand

Prix Ltd., 16 USPQ2d 1399, 1400 (TTAB 1990) (“where the goods of the parties differ,

information from which it may be learned whether the parties market some goods of

the same type is relevant to establishing the relationship between the goods of the

parties.”) (citing Sterling Drug Inc. v. Sebring, 515 F.2d 1128, 185 USPQ 649, 652

(CCPA 1975)).

Even if Applicant’s services feature pet grooming supplies, its advertisements, as

well as those of its competitors, indicate that stores of that sort commonly sell

ancillary goods, such as bowls, cups, and treats for pets. And the third-party evidence

cited above indicates that such goods and services commonly emanate from the same

source under the same mark, so that consumers would regard them as related. Hence,

Applicant’s “[w]holesale and retail supply store services featuring pet grooming

supplies” would be perceived as related to Opposer’s identified goods. See, e.g., Wet

Seal, Inc. v. FD Mgmt., Inc., 82 USPQ2d 1629, 1639-40 (TTAB 2007) (“It is settled

that the likelihood of confusion may result from the use by different parties of the

same or similar marks in connection with goods, on the one hand, and services which

deal with or are related to those goods, on the other.”).

Similarly, even though Applicant claims that its services are directed to pet

grooming professionals, “[a]n application with ‘no restriction on trade channels’

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Opposition No. 91221462

cannot be ‘narrowed by testimony that the applicant’s use is, in fact, restricted to a

particular class of purchasers.’” Stone Lion Capital v. Lion Capital, 110 USPQ2d at

1162 (quoting Octocom v. Houston Comp. Servs., 16 USPQ2d at 1788). Because

Applicant’s services are not limited to sales to “professionals, the goods are presumed

to travel in all normal channels and to all prospective purchasers for the relevant

goods.” Coach Servs. v. Triumph Learning, 101 USPQ2d at 1722; see Centraz Indus.

v. Spartan Chem., 77 USPQ2d at 1700 (“We also note, however, that the

identifications of goods are not limited to commercial and institutional customers.”).

As Applicant’s witness confirmed, reviewing the wording of its identification:

Q.· · The words “pet professionals” do not appear in this application, correct?
A.· · Correct.
Q.· · And the words “professional pet groomers” don’t appear in this
application, correct?
A.· · Correct.
Q.· · And the words “veterinarian,” “kennels” and “boarders” don’t appear in
this application, correct?
A.· · Correct.123
Applicant’s president, Robert Rhoades, testified that its products are purchased

primarily but not exclusively by professionals:

Indeed, throughout his testimony, Mr. Rhoades consistently emphasized that

Applicant does not identify whether it is selling to professionals or consumers:

A. …I have no way of identifying whether they are a consumer or a
professional groomer. We don’t ask.124

123 Somerlot dep. 35:9-18, 79 TTABVUE 38.
124 Rhoades dep. 74:19-21, 44 TTABVUE 21.

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Opposition No. 91221462

A. Well again, if someone calls in and orders, we don’t know if it’s a business
or if it’s an individual.125
Q. And you don’t take any steps to prevent someone from the general public
from buying your products, correct?
A. We don’t, but ? we don’t encourage it because we want ongoing sales.126
A. [W]e don’t ask for identification. We just take the order, process it, and
then move on.127
. . .
Q. Could a member of the general public purchase a bowl via your catalog as
well?
A. They could have.
Q. Have you made any sales of bowls to members of the general public?
A. We don’t identify who we are selling to.128
Thus, despite Applicant’s argument that its retail services are intended for

professionals, neither its identification nor its actual services is so limited. In sum,

Applicant’s services are related to Opposer’s goods, and pass through the same or

similar normal channels of trade to overlapping classes of customers, including pet

owners. For these reasons, the second and third DuPont factors weigh in favor of

finding a likelihood of confusion.

C. Care and Sophistication of Purchasers

Under the fourth DuPont factor, we consider “[t]he conditions under which and

buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”

125 Rhoades dep. 106:6-8, 44 TTABVUE 45.
126 Rhoades dep. 106:19-20, 44 TTABVUE 45.
127 Rhoades dep. 107:2-4, 44 TTABVUE 46.
128 Rhoades dep. 82:16-21, 44 TTABVUE 28.

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Opposition No. 91221462

DuPont, 177 USPQ at 567. Applicant, relying on much the same arguments as above,

argues that its services are rendered to pet grooming professionals?sophisticated

purchasers who can “readily distinguish the ‘pet grooming supplies’ they are selling

from pet food and would not confuse the two.”129 “Additionally,” it maintains, “since

most of [Applicant’s] sales are through a catalogue or online, there is no ability to

impulse purchase a low value item”130

Regardless of their level of sophistication, whether Applicant’s customers can tell

the difference between pet grooming supplies and pet food is irrelevant. “The issue,

of course, is not whether purchasers would confuse the goods or services, but rather

whether there is a likelihood of confusion as to the[ir] source. . . .” Giersch v. Scripps

Networks, Inc., 90 USPQ2d 1020, 1026 (TTAB 2009). There is no support for a rule

that likelihood of confusion can only be found when the involved goods or services are

indistinguishable. In any event, as Applicant’s president admits, the general public

can purchase items from its inventory; Applicant takes no steps to discourage

members of the general public from buying its products, and has no way of knowing

whether purchasers are professionals or consumers.131 And while some of its items

are expensive, such as modular cages in sets ranging from $885.00 to $2,536.00,

others are inexpensive, such as stainless steel bowls ranging from 99 cents to $3.49

129 Applicant’s brief, 82 TTABVUE 27.
130 Id.
131 Rhoades dep., 44 TTABVUE 21, 28, 45-46.

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Opposition No. 91221462

apiece,132 or bully sticks for $2.29 to $4.50 per pack.133 Applicant’s website also lists

items such as combs, bandannas, nail polish, ribbons, and cologne, all for under ten

dollars.134

The standard of care for purchasing the goods is that of the least sophisticated

potential purchaser. Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1163, cited

in In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (“Board precedent

requires our decision to be based on the least sophisticated potential purchasers.”).

And “[w]hen products are relatively low-priced and subject to impulse buying, the

risk of likelihood of confusion is increased because purchasers of such products are

held to a lesser standard of purchasing care.” In re FabFitFun, 127 USPQ2d at 1673

(citing Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir.

2000)).

Consequently, there is no reason to find that purchasers would be particularly

sophisticated, or exercise more than an ordinary degree of care in their purchases.

This factor is therefore neutral.

D. Strength of Opposer’s Marks

The fifth DuPont factor is “[t]he fame of the prior mark (sales, advertising, length

of use).” DuPont, 177 USPQ at 567. The fame of a mark is not “an all-or-nothing

measure” when considered in the context of likelihood of confusion. Joseph Phelps

132 Somerlot dep. ex. 20, 57 TTABVUE 80.
133 Rhoades dep. ex. 7, 45 TTABVUE 228, 231.
134Rhoades dep. 133:10-135:22, 44 TTABVUE 47-49, 45 TTABVUE 228-32, 260-61, 267-70,
335-36, 339-40; 78 TTABVUE 163.

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Opposition No. 91221462

Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734

(Fed. Cir. 2017). Rather, likelihood of confusion fame “varies along a spectrum from

very strong to very weak.” Palm Bay Imps., 73 USPQ2d at 1694 (quoting In re Coors

Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003)).

In determining strength of a mark, we consider both inherent strength, based on

the nature of the mark itself, and commercial strength, based on marketplace

recognition. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686

(Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength

(distinctiveness) and its marketplace strength….”); Bell’s Brewery, Inc. v. Innovation

Brewing, 125 USPQ2d 1340, 1345 (TTAB 2017); Top Tobacco, L.P. v. N. Atl.

Operating Co., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (the strength of a mark is

determined by assessing its inherent strength and its commercial strength, “based on

the marketplace recognition value of the mark”); Tea Bd. of India v. Republic of Tea

Inc., 80 USPQ2d 1881, 1899 (TTAB 2006) (market strength is the extent to which the

relevant public recognizes a mark as denoting a single source); MCCARTHY ON

TRADEMARKS AND UNFAIR COMPETITION § 11:83 (5th ed. June 2019 update) (“The first

enquiry focuses on the inherent potential of the term at the time of its first use. The

second evaluates the actual customer recognition value of the mark at the time

registration is sought or at the time the mark is asserted in litigation to prevent

another’s use.”). To determine the conceptual strength of the PEDIGREE marks, we

evaluate the word’s intrinsic nature, that is, where it lies along the generic-

descriptive-suggestive-arbitrary-fanciful continuum of words. In re Davia, 110

USPQ2d at 1814.

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Opposition No. 91221462

Applicant argues that Opposer’s PEDIGREE marks are conceptually weak, as

“pedigree” is a laudatory term, alluding to one’s distinguished ancestry, as in “What

is the dog’s pedigree?” or “a purebred animal.”135 Laudatory terms, it argues, are

generally deemed to be merely descriptive, or, if registered, entitled to only a narrow

scope of protection.136 However, inasmuch as Opposer’s PEDIGREE marks are

registered on the Principal Register without disclaimers or claims of acquired

distinctiveness under Section 2(f), they are entitled to a presumption that they are

inherently distinctive, not merely descriptive. 15 U.S.C. § 1057(b); Tea Bd. of India

v. Republic of Tea, 80 USPQ2d at 1889. As Opposer correctly observes, “pedigree”

may be laudatory of certain dogs with distinguished ancestries, but it is not laudatory

of dog food.137 The term is arbitrary or?to the extent that it implies that Opposer’s

pet food may be appropriate for dogs of a distinguished pedigree?at most slightly

suggestive. See In re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 (TTAB 2007)

(“inasmuch as the cited mark is registered on the Principal Register, we must assume

that it is at least suggestive and we cannot entertain applicant’s argument that the

registered mark is descriptive of registrant’s services.”). “[T]he fact that mark may be

somewhat suggestive does not mean that it is a ‘weak’ mark entitled to a limited scope

of protection.” In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985).

Thus, conceptually, Opposer’s PEDIGREE marks are inherently distinctive.

Applicant’s brief, 82 TTABVUE 9-10, citing the OXFORD ENGLISH DICTIONARY,
135

www.dictionary.com, 60 TTABVUE 64-74.
Id. (citing In re The Place, Inc., 76 USPQ2d 1467 (TTAB 2005) (finding the term
136

GREATEST to be laudatory because it denotes a superior character or quality)).
137 Opposer’s reply brief, 84 TTABVUE 9.

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Opposition No. 91221462

Commercially, Opposer maintains, its PEDIGREE marks are “famous, extremely

strong, and are entitled to a broad scope of protection.”138 The commercial strength of

a mark may be measured indirectly by the volume of sales of and advertising

expenditures for the goods identified by the marks, the length of time those indicia of

commercial awareness have been evident, widespread critical assessments, notice by

independent sources of the goods, and the general reputation of the goods. In re Mr.

Recipe, 118 USPQ2d 1084, 1086 (TTAB 2016) (citing Bose Corp. v. QSC Audio Prods.

Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305-06, 1309 (Fed. Cir. 2002)).

To provide this proof, Opposer relies upon the deposition of its marketing

operations director, Melodie Bolin, the former PEDIGREE brand manager,139 who

testifies that:

• Opposer’s predecessor in interest, Kal Kan Foods, Inc., launched its
PEDIGREE brand in the United States in the early 1980s;140
• The PEDIGREE brand sells through all types of stores: superstores such as
Walmart and Kmart, club stores such as Costco, all major grocery stores in the
U.S., such as Safeway, Kroger, and Winn-Dixie, pet specialty stores such as
PetSmart, independent pet stores, and farm and feed stores;141
• Sales of PEDIGREE branded products in the United States from 2011 to 2016
total over one billion dollars’ worth per year;142

138 Opposer’s brief, 80 TTABVUE 32.
139 Bolin dep. 9:7-10:21, 49 TTABVUE 12-13.
140Bolin dep. 13:17-21, 49 TTABVUE 116. In 1985, Kal Kan acquired Registration No.
0284342 for PEDIGREE (stylized), issued in 1931. In 2002, the registration was assigned to
Opposer.
141 Bolin dep. 35:4-20, 49 TTABVUE 38.
Bolin dep. 84:3-18 & ex. 22, 50 TTABVUE 9, 33 (confidential); see Opposer’s brief, 80
142

TTABVUE 34.

– 48 –
Opposition No. 91221462

• Opposer’s advertising and consumer promotion expenditures for the
PEDIGREE brand from 2011 to 2015 were over $400 million;143
• Opposer has advertised the PEDIGREE brand on television in the United
States since the 1980s, including sponsoring the Westminster Kennel Club
Show from 2008 to 2012, sponsoring an annual “Puppy Bowl” on Animal Planet
just before the Super Bowl, and placing ads during the Super Bowl;144
• Opposer places PEDIGREE brand advertisements in many national
magazines, including People, US Weekly, Better Homes & Gardens;145
• Opposer maintains an extensive presence online, purchasing ads at major
websites such as PetSmart.com, Walmart.com, and CNN.com, maintaining
sites on social media, such as Facebook, Instagram, Twitter, and Snapchat,
and maintaining its own website Pedigree.com, which has three to five million
views per month;146
Opposer also points to two prior nonprecedential Board decisions finding,

respectively, that “the PEDIGREE mark has achieved a degree of renown … with

respect to pet food,” and “counsel for applicant conceded at the oral hearing that

opposer’s ‘PEDIGREE’ marks are famous for dog food.”147 However, as the Board

noted in denying Opposer’s earlier motion for summary judgment, those decisions

were issued long ago, in proceedings involving different parties, on different records,

143Bolin dep. 85:14-86:7 & ex. 22, 50 TTABVUE 10-11, 33 (confidential); see Opposer’s brief,
80 TTABVUE 34.
144 Bolin dep. 59:25-60:7, 62:10-22, 68:18-69:5, 72:21-73:11, 49 TTABVUE 62-65, 71-72, 75-
76.
145 Bolin dep. 52:2-6, 59:3-10, 49 TTABVUE 55, 62.
146 Bolin dep. 39:25-40:5, 49:19-50:5, 58:6-24, 49 TTABVUE 42-43, 52-53, 61. “A party may
increase the weight the Board will give website evidence by submitting testimony and proof
of the extent to which a particular website has been viewed.” TBMP § 704.08.
Mars, Inc. v. Dan-Dee Int’l Ltd., 2005 WL 3551105 (TTAB 2005); Kal Kan Foods, Inc. v.
147

Hacht Sales & Mktg., Ltd., 1999 WL 792379 (TTAB 1993).

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Opposition No. 91221462

and are not binding in this proceeding.148 See Hyde Park Footwear Co. v. Hampshire-

Designers, Inc., 197 USPQ 639, 641 (TTAB 1977) (findings of fact in an opposition

between an opposer and a third party cannot be used against a different applicant).

Applicant argues that while the PEDIGREE mark “may be generally recognized

amongst dog owners that regularly shop for dog food…, [Opposer] has submitted no

evidence that the general public recognizes the PEDIGREE mark.”149 However, “[t]he

proper legal standard for evaluating the fame of a mark under the fifth DuPont factor

is the class of consumers and potential consumers of a product or service, and not the

general public.” Palm Bay Imps., 73 USPQ2d at 1694 (“fame for confusion purposes

arises as long as a significant portion of the relevant consuming public … recognizes

the mark as a source indicator”). The relevant consuming public’s perception of the

marks may be proven by indirect evidence of the sort Opposer has submitted. Coach

Servs. v. Triumph Learning, 101 USPQ2d at 1720; Tao Licensing, LLC v. Bender

Consulting Ltd., 125 USPQ2d 1043, 1056 (TTAB 2017).

Applicant argues that Opposer must demonstrate fame prior to Applicant’s first

use of its PET-AGREE mark in 2003 to be relevant to the likelihood of confusion

analysis.150 That is incorrect. Whether Opposer’s PEDIGREE marks achieved fame

prior to Applicant’s first use would be relevant to a dilution analysis, but not a

likelihood of confusion analysis under Section 2(d). For our present purposes, fame,

if it exists, is determined at the time of trial. Hornby v. TJX Cos., 87 USPQ2d 1411,

148 Order denying motion for summary judgment, 41 TTABVUE 4 n.3.
149 Applicant’s brief, 82 TTABVUE 11.
150 Applicant’s brief, 82 TTABVUE 12.

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Opposition No. 91221462

1416 (TTAB 2008), cited in TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1113

n.69 (TTAB 2019). Applicant finally contends that the consuming public’s

“recognition is tied exclusively to PEDIGREE used in conjunction with a blue ribbon

and a yellow background. There is no testimony that the word mark PEDIGREE,

standing alone, has much significance.”151 As Opposer correctly observes, however, it

owns registrations for standard-character PEDIGREE marks. And as noted above,

the verbal portion of a word and design mark “likely will appear alone when used in

text and will be spoken when requested by consumers.” In re Aquitaine Wine, 126

USPQ2d at 1184. Indeed, unsolicited media coverage has recognized PEDIGREE pet

food by brand name as “the single largest-selling pet food trademark,” “Pedigree dog

food, the biggest-selling brand of dry dog food in the United States,” and “Pedigree,

owned by Mars, is still market leader, both in wet and dried dog food….”152

We find, accordingly, that Opposer’s PEDIGREE marks are commercially strong

for pet food, and are entitled to a commensurately broad scope of legal protection. See

Palm Bay Imps., 73 USPQ2d at 1694 (strong marks “enjoy wide latitude of legal

protection”). The strength of Opposer’s marks enhances the likelihood that customers

would perceive a trademark similar to PEDIGREE as being associated with Opposer,

even if it is used in connection with goods or services other than providing pet food.

See Recot v. Becton, 54 USPQ2d at 1897. The fifth DuPont factor therefore weighs in

favor of Opposer.

151 Applicant’s brief, 82 TTABVUE 10.
152Supermarket Business 6/1/91, Portland Oregonian 4/26/97, Super Marketing 3/13/98, 45
TTABVUE 92, 99, 101. This evidence is considered insofar as it relates to the PEDIGREE
brands’ reputation and recognition in the media, not for the truth of the matter asserted.

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Opposition No. 91221462

E. Third Party Marks

Under the sixth DuPont factor, we consider “[t]he number and nature of similar

marks in use on similar goods [or services].” DuPont, 177 USPQ at 567. This factor

may serve as a counterpoint to the fifth DuPont factor, undermining the conceptual

or commercial strength of Opposer’s marks.

Applicant argues that “Third-party use of the PET-AGREE mark demonstrates

that consumers are able to distinguish between PEDIGREE and PET-AGREE.”153 Its

support for this argument consists of three cancelled registrations, the first two of

which were owned by the same registrant:

Registration Mark Pertinent Goods

1648728 PET-AGREE Electronic ultrasonic sound device used
(cancelled) for pet training
2395039 PET-AGREE Electronic ultrasonic sound device used
(cancelled) for pet training
2193583 PET-AGREE Laminate film used on the back of carpeting
(cancelled) to keep moisture from being absorbed by the
padding, sold as an integral part of carpet154

We find, however, that these cancelled registrations showing prior registration of

a term is unavailing, especially since all of them were cancelled due to failure to file

acceptable declarations of continued use under Section 8. As the Board has noted,

“The existence of a cancelled registration — particularly one cancelled for failure to

provide a declaration of continued use — does not tend to show that the cited mark

is weak due to third-party use. A cancelled registration is only evidence that the

153 Applicant’s brief, 82 TTABVUE 27.
154 Applicant’s ex. 39, 61 TTABVUE 9-23.

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registration issued and it does not carry any of the legal presumptions under Section

7(b) of the Trademark Act, 15 U.S.C. § 1057(b).” In re Inn at St. John’s, 126 USPQ2d

at 1745. “Consistent with well-established decisional law, the cancelled registrations

submitted by Applicant have little, if any, probative value.” TiVo v. Tivoli, 129

USPQ2d at 1117.

As the Board stated in Inn at St. Johns, this is a far cry from the “extensive

evidence of third-party use and [live] registrations” that was held to be significant in

Juice Generation, where there were at least twenty-six relevant third-party uses and

registrations of record, see Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,

115 USPQ2d 1671, 1675, 1673 n.1 (Fed. Cir. 2015), and in Jack Wolfskin, where there

was “voluminous” evidence of use and at least fourteen registrations, Jack Wolfskin

Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797

F.3d 1362, 116 USPQ2d 1129, 1136 & n.2 (Fed. Cir. 2015). See also Primrose

Retirement Communities, LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030

(TTAB 2016) (weakness found based on at least 85 actual uses of ROSE-formative

marks for similar services, eight similar third-party registrations, expert testimony

and other evidence regarding the common nature of ROSE-formative marks in the

industry, and testimony by opposer that it did not vigorously enforce its mark).

Unlike the plaintiff in Primrose Retirement Communities, Opposer has shown that it

actively enforces its rights in the PEDIGREE marks, and has successfully curtailed

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the unauthorized use or registration of marks such as PETAGREE, PEDIGREE

PARK, PEDIGREE PETS, PEDIGREE PERFECTION, and PEDIGREEN.155

Beyond that, under the sixth DuPont factor, “the controlling inquiry is the extent

of third-party marks in use on ‘similar’ goods or services. . . . ‘It is less relevant that

[the mark] is used on unrelated goods or services….’?” Omaha Steaks Int’l, Inc. v.

Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1694 (Fed. Cir. 2018)

(quoting Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23

USPQ2d 1698, 1701 (Fed. Cir. 1992)). In this case, the ultrasonic sound device used

for pet training?the subject of the first two third-party registrations?has only the

most distant, attenuated connection with grooming supplies or pet food, and the

third, laminate film used on the back of carpeting to keep moisture from being

absorbed by the padding, is even more remote. See In re i.am.symbolic, 123 USPQ2d

at 1751 (disregarding third-party registrations for goods in other classes where the

proffering party “has neither introduced evidence, nor provided adequate explanation

to support a determination that the existence of I AM marks for goods in other classes,

… support a finding that registrants’ marks are weak with respect to the

goods identified in their registrations”), cited in In re Fabfitfun, 127 USPQ2d at 1674

n.11.

The totality of the third-party evidence relating to the sixth DuPont factor fails to

show that Opposer’s PEDIGREE marks are weak, either conceptually or

commercially. As a result, the evidence fails to show that the cited mark should be

155 Exs. 29-30, 43 TTABVUE 65-118; Bolin dep. exs. 23-25, 50 TTABVUE 12-14, 34-48.

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afforded such a narrow scope of protection that it would weigh in favor of finding a

likelihood of confusion.

F. Actual Confusion

Under the seventh and eighth DuPont factors, we consider the nature and extent

of any actual confusion, in light of the length of time and conditions under which

there has been contemporaneous use of the parties’ subject marks. DuPont, 177

USPQ at 567.

Applicant’s witnesses?its president and sales manager?aver that they are not

aware of any instance of actual confusion with Opposer’s marks. There were no

misdirected communications to Applicant that were intended for Opposer, no

inquiries about whether Applicant was affiliated with Opposer, no queries about

whether Applicant sells dog food.156 Yet Applicant has been using its mark

contemporaneously with Opposer for over 15 years, since 2003; its website has

displayed its mark at least as early as that year; it places 4,500-9,000 cold calls per

year using the mark; it distributes its catalogs four times a year to 30,000 people

nationwide; and it participates in trade shows across the country.157

Opposer responds that it is unnecessary for a plaintiff in an inter partes

proceeding to show instances of actual confusion in order to establish likelihood of

confusion. According to Opposer, Applicant “has provided no evidence as to when it

Somerlot decl. ¶¶ 28-30, 58 TTABVUE 7, Somerlot dep. 90:13-91:5, 79 TTABVUE 93-94;
156

Rhoades decl. ¶¶ 28-30, 54 TTABVUE 6-7, Rhoades dep. 72:14-17, 135:23-137:8, 44
TTABVUE 19, 50, 67 TTABVUE 23-25.
157Rhoades dep. 87:22-88:2, 91:3-9, 101:24-102:18, 44 TTABVUE 34-35, 37, 40-41. Somerlot
decl. ¶¶ 4, 20-21, 26-27, 58 TTABVUE 3, 5-6.

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Opposition No. 91221462

began making cold calls, or that it had a method, procedure, or policy to track whether

confusion was expressed during the cold calls.”158 “Because [Applicant] introduced no

evidence demonstrating the extent to which consumers were exposed to the mark

PET-AGREE during the supposed period of coexistence, the alleged lack of actual

confusion does not favor” Applicant, Opposer concludes.159

Although the evidence is not completely clear, we find that these DuPont factors

weigh somewhat in Applicant’s favor. It is true that Opposer need not demonstrate

instances of actual confusion in order to prove a likelihood thereof. Zheng Cai v.

Diamond Hong, 127 USPQ2d at 1800 (citing Herbko Int’l, Inc. v. Kappa Books, Inc.,

308 F.3d 1156, 1165 (Fed. Cir. 2002)).

Moreover, the Federal Circuit has observed that:

uncorroborated statements of no known instances of actual confusion are
of little evidentiary value. See In re Bissett-Berman Corp., 476 F.2d 640,
642, 177 USPQ 528, 529 (CCPA 1973) (stating that self-serving testimony
of appellant’s corporate president’s unawareness of instances of actual
confusion was not conclusive that actual confusion did not exist or that
there was no likelihood of confusion). A showing of actual confusion would
of course be highly probative, if not conclusive, of a high likelihood of
confusion. The opposite is not true, however. The lack of evidence
of actual confusion carries little weight….

In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003)

(emphasis added) (citing J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144

USPQ 435, 438 (CCPA 1965) (uncorroborated statements of no known instances of

actual confusion are of little evidentiary value).

158 Opposer’s reply brief, 84 TTABVUE 21.
159 Opposer’s reply brief, 84 TTABVUE 22.

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Opposition No. 91221462

The seventh and eighth DuPont factors are interrelated. “[T]he absence of any

reported instances of actual confusion would be meaningful only if the record

indicated appreciable and continuous use by applicant of its mark for a significant

period of time in the same markets as those served by opposer under its marks.”

Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). The record

in this case indicates that Applicant has made continuous use of its mark for over 15

years, but the extent of that use is less clear. The record does not indicate how long

Applicant has made cold calls and disseminated catalogs, apart from recent activity,

nor does it indicate the number of visitors to its website or trade show booths; and

even though Applicant avers that it has produced its financial information to Opposer

for the years 2012 through 2014,160 it has not made its advertising and sales

information of record. Applicant has thus established use of its mark for a

considerable period, but we are left to guess at how extensive that use might have

been.

On the other hand, Opposer has established that its mark is well-known under

Section 2(d), with use of significant duration and nationwide scope. Yet despite that

long and appreciable use, at the same time and over the same territory as Applicant’s

recent and significant cold calls, promulgation of catalogs, and maintenance of its

Internet presence, Opposer cannot point to even one instance of actual confusion.

“Based on this evidence, we find that there has been a reasonable opportunity for

confusion to have occurred and that the lack of any reported instances of confusion

160Applicant’s answers and supplemental answers to interrogatories 12 and 13, 44
TTABVUE 12-13.

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Opposition No. 91221462

weighs against finding that there is a likelihood of confusion.” Citigroup Inc. v.

Capital City Bank Grp., Inc., 94 USPQ2d 1645, 1662 (TTAB 2010), aff’d, 98 USPQ2d

1253.

Consequently, the seventh and eighth DuPont factors weigh in Applicant’s favor,

although, given the gaps in the evidence, they carry little weight, and are outweighed

by the other factors. See Fiserv, Inc. v. Elec. Transaction Sys. Corp., 113 USPQ2d

1913, 1922 (TTAB 2015) (“We note, however, that while the presence of confusion

may be very useful to our analysis, the lack of evidence of actual confusion carries

little weight. … This is especially true where, as here, the record is unclear as to the

amount of meaningful opportunities for confusion to have occurred among

purchasers.”); Nike, Inc. v. WNBA Enters., LLC, 85 USPQ2d 1187, 1202 (TTAB 2007)

(“The lack of actual confusion is only one of a number of factors to be considered in

determining likelihood of confusion and in this case we find that it is outweighed by

all the other factors in opposer’s favor.”).

G. Variety of Goods and Services on Which Opposer’s Marks are Used

The ninth DuPont factor is “the variety of goods on which a mark is or is not used.”

DuPont, 177 USPQ at 567.

Opposer contends that the PEDIGREE marks are used on a wide variety of goods

and services.161 Opposer’s pleaded PEDIGREE registrations identify canned dog food,

pet food; a periodically published journal pertaining to health care of pets; cups, bowls

and mugs used to promote the sale of pet food; computer software used to promote

161 Opposer’s brief, 80 TTABVUE 38-39.

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Opposition No. 91221462

the sale of pet food; promotion of public awareness about the need for adopting

animals, responsible pet ownership, and the proper care and treatment of pets; and

charitable fundraising.162 Ms. Bolin testified regarding Opposer’s provision of these

PEDIGREE brand goods and services in the United States, and identified over 150

distinct items (SKUs, or stock keeping units) currently sold in the United States

bearing the PEDIGREE mark.163 She testified about promotional products Opposer

has sold in the United States under the PEDIGREE FOUNDATION service

mark?products such as pajamas, yoga pants, scarves, hats, dog leashes, dog collars,

dog bowls, picture frames, Christmas ornaments and calendars.164 And she testified

about other types of promotional PEDIGREE products, such as T-shirts, umbrellas,

lunch boxes, cell phone covers, pens, notebooks, bandannas for dogs, collars, leashes,

and posters, Opposer has distributed at shelters to promote the adoption of dogs,

among other venues.165 Applicant acknowledges the applicability of this DuPont

factor,166 but does not counter Opposer’s argument.

If a party in the position of plaintiff uses its mark on a wide variety of goods and

services, then purchasers are more likely to view a defendant’s related goods or

services under a similar mark as an extension of the plaintiff’s line. See, e.g., In re

162Notice of Opposition ¶¶ 1-3, 1 TTABVUE 11-14, as amended, 46 TTABVUE 6-7 (TESS
printouts of registrations attached).
163See Bolin dep 17:6-21:4, 22:11-24, 25:9-26:19, 29:6-30:24, 32:7-20, 34:2-6, 36:5-14, 39:16-
24, 42:8-44:12; 49 TTABVUE 20-25, 28-29, 32-33, 35, 37, 39, 42, 45.
164 Bolin dep. 26:20-27:18; 49 TTABVUE 29-30.
165 21:9-22:10, 23:5-24:8, 23-25; 49 TTABVUE 24-27.
166 Applicant’s brief, 82 TTABVUE 8.

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Opposition No. 91221462

Hitachi, 109 USPQ2d at 1774; In re Wilson, 57 USPQ2d 1863, 1867 (TTAB 2001) (use

on a wide variety of goods weighs in favor of likelihood of confusion).

Accordingly, we find that the ninth DuPont factor weighs in Opposer’s favor.

H. Balancing the Factors

We have considered all of the evidence of record and all of the arguments of the

parties, including evidence and arguments not specifically discussed in this opinion,

as they pertain to the relevant DuPont likelihood of confusion factors. We find that

the marks are similar; the goods and services are related, and move through the same

or similar channels of trade to the same or overlapping classes of customers; these

customers cannot be expected to exercise sufficient care or sophistication to avoid

confusion; Opposer’s marks are inherently distinctive and commercially strong, and

are not weak or diluted in the marketplace due to third-party use of similar marks

on similar goods or services. Even without this commercial strength, however, the

balance of factors would weigh in Opposer’s favor. There is no evidence of actual

confusion, but this factor is outweighed by the other DuPont factors addressed above.

Thus, the evidence as a whole leads us to conclude that a likelihood of confusion

exists.

IV. Conclusion

For the above reasons, we conclude that Applicant’s subject mark, as used in

connection with the services identified in the application, so resembles the cited

registered marks as to be likely to cause confusion or mistake, or to deceive under

Section 2(d) of the Trademark Act. Having determined that Opposer is entitled to

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Opposition No. 91221462

prevail in this opposition proceeding based upon its Section 2(d) claim of likelihood of

confusion, we need not reach the merits of Opposer’s dilution claim.

Decision: The opposition to registration of Applicant’s mark PET-AGREE is

sustained under Section 2(d) of the Trademark Act.

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