From: Severson, Karen
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`Sent: 5/31/2012 8:04:23 AM
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`To: TTAB EFiling
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`CC:
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`Subject: U.S. TRADEMARK APPLICATION NO. 77779424 - FARMERS MUTUAL
`HAIL INSURANCE - N/A - EXAMINER BRIEF
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`
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`*************************************************
`Attachment Information:
`Count: 1
`Files: 77779424.doc
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`

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`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
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` APPLICATION SERIAL NO.
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`77779424
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`*77779424*
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`
`GENERAL TRADEMARK INFORMATION:
`http://www.uspto.gov/main/trademarks.htm
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`TTAB INFORMATION:
`http://www.uspto.gov/web/offices/dcom/ttab/index.html
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`
`
`
`
` MARK: FARMERS MUTUAL HAIL INSURANCE
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` Farmers Mutual Hail Insurance
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` CORRESPONDENT ADDRESS:
`
` RICHARD BLAKELY GLASGOW
` WRIGHT LINDSEY & JENNINGS LLP
` 200 WEST CAPITOL AVENUE SUITE 2300
` LITTLE ROCK, AR 72201
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`
`
` APPLICANT:
`Company
`
`
` CORRESPONDENT’S REFERENCE/DOCKET NO:
` N/A
` CORRESPONDENT E-MAIL ADDRESS:
` bglasgow@wlj.com
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`EXAMINING ATTORNEY'S APPEAL BRIEF
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`I. INTRODUCTION
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`Applicant, Farmers Mutual Hail Insurance Company of Iowa, has appealed the
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`
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`examining attorney’s final refusal to register, under Section 2(d) of the Trademark Act,
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`15 U.S.C. § 1052(d), the proposed mark FARMERS MUTUAL HAIL INSURANCE
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`COMPANY OF IOWA and design for “Insurance services, namely, writing multi-peril
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`crop insurance, hail insurance and re-insurance underwriting in the field of multi-peril
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`crop insurance,” in International Class 36. The Section 2(d) refusal was issued on the
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`ground that applicant’s mark, as applied to applicant’s services, so resembles the marks
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`in U.S. Registration Nos. 1821673 (FARMERS INSURANCE GROUP), 1899192
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`(FARMERS), 1920139 (FARMERS INSURANCE EXCHANGE), and 3505986
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`(FARMERS BUSINESS INSURANCE EXPRESS) so as to be likely to cause confusion,
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`or to cause mistake, or to deceive.
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`

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`II. FACTS
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`On July 13, 2009, applicant filed the instant application to register the mark,
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`
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`FARMERS MUTUAL HAIL INSURANCE COMPANY OF IOWA and design, for
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`“Insurance services, namely, writing multi-peril crop insurance, hail insurance and re-
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`insurance underwriting in the field of multi-peril crop insurance.”
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`
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`On October 14, 2009, an Office action was issued refusing registration of the
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`proposed mark under Section 2(d) because of a likelihood of confusion with the
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`following registrations. The cited registrations are owned by a single registrant, namely,
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`Farmer’s Group, Inc., and the registered marks and the respective services are as follows:
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`
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`Registration No. 1821673 – FARMERS INSURANCE GROUP (INSURANCE
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`GROUP disclaimed) for “insurance services; namely, underwriting, claims administration
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`and agency services for property and casualty, life, automobile, boat, farm and ranch,
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`flood, workers' compensation, mortgage protection (life), renters, townhouse,
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`condominium, and homeowners insurance; underwriting and agency services of
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`individual retirement annuities (IRA) and flexible payment annuities; administration of
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`employee pension plans,” in International Class 36;
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`
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`Registration No. 1899192 – FARMERS for “underwriting and claims
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`administration for property, casualty, life, mortgage protection (life), automobile, farm
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`and ranch, flood, workers' compensation, renters', townhouse, condominium, and
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`homeowners insurance; underwriting and administration of individual retirement
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`annuities (IRA) and flexible payment annuities,” in International Class 36;
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`
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`Registration No. 1920139 – FARMERS INSURANCE EXCHANGE
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`(INSURANCE EXCHANGE disclaimed) for “underwriting, claims administration and
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`property, casualty and automobile insurance agency services,” in International Class 36;
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`and
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`
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`Registration No. 3505986 – FARMERS BUSINESS INSURANCE EXPRESS
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`(BUSINESS INSURANCE EXPRESS disclaimed) for, among other things, “Insurance
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`brokerage services; insurance services, namely, providing a full range of business
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`insurance and risk management services for businesses, insurance underwriting, claims
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`administration and agency services,” in International Class 36.
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`
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`A Final refusal was issued September 15, 2011 wherein the examining attorney
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`accepted applicant’s revised mark description and claim of acquired distinctiveness under
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`Trademark Act Section 2(f), disclaiming the wording INSURANCE COMPANY OF
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`IOWA, thereby withdrawing the disclaimer requirement while making final the
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`likelihood of confusion refusal under Section 2(d) on the basis of the cited registrations.1
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`The instant application was reassigned to the undersigned examining attorney on October
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`27, 2012, and a subsequent Final refusal was issued on November 30, 2011. This appeal
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`followed.
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`III. ARGUMENT
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`THE MARKS ARE HIGHLY SIMILAR AND THE PARTIES’ RESPECTIVE
`SERVICES ARE CLOSELY RELATED SUCH THAT THERE EXISTS A
`LIKELIHOOD OF CONFUSION UNDER SECTION 2(d) OF THE TRADEMARK
`ACT.
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`Trademark Act Section 2(d) bars registration of an applied-for mark that so
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`
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`resembles a registered mark that it is likely that a potential consumer would be confused,
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`mistaken, or deceived as to the source of the goods and/or services of the applicant and
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`1 Upon further review, it has been determined that the disclaimer incorrectly omits the generic term HAIL.
`Accordingly, in the event that this Board overturns the refusal under Trademark Act Section 2(d), the
`examining attorney respectfully requests that jurisdiction be restored to the examining attorney for further
`examination with respect to the disclaimer, pursuant to 37 C.F.R. §2,142(f)(6); TBMP §1209.02.
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`

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`registrant. See 15 U.S.C. §1052(d). In the seminal decision In re E. I. du Pont de
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`Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973), the court listed the
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`principal factors to be considered when determining whether there is a likelihood of
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`confusion under Section 2(d). See TMEP §1207.01. However, not all the factors are
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`necessarily relevant or of equal weight, and any one of the factors may control in a given
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`case, depending upon the evidence of record. Citigroup Inc. v. Capital City Bank Grp.,
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`Inc., 637 F.3d 1344, 1355, 98 USPQ2d 1253, 1260 (Fed. Cir. 2011); In re Majestic
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`Distilling Co., 315 F.3d 1311, 1315, 65 USPQ2d 1201, 1204 (Fed. Cir. 2003); see In re
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`E. I. du Pont de Nemours & Co., 476 F.2d at 1361-62, 177 USPQ at 567.
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`
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`In this case, the following factors are the most relevant: similarity of the marks,
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`similarity and nature of the goods and/or services, and similarity of the trade channels of
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`the goods and/or services. See In re Viterra Inc., 671 F.3d 1358, 1361-62, 101 USPQ2d
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`1905, 1908 (Fed. Cir. 2012); In re Dakin’s Miniatures Inc., 59 USPQ2d 1593, 1595-96
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`(TTAB 1999); TMEP §§1207.01 et seq.
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`
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`In any likelihood of confusion determination, two key considerations are
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`similarity of the marks and similarity or relatedness of the goods and/or services. See
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`Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103, 192 USPQ 24,
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`29 (C.C.P.A. 1976); In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010);
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`TMEP §1207.01; see also In re Dixie Rests. Inc., 105 F.3d 1405, 1406-07, 41 USPQ2d
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`1531, 1533 (Fed. Cir. 1997). That is, the marks are compared in their entireties for
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`similarities in appearance, sound, connotation, and commercial impression. In re Viterra
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`Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting In re E. I.
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`du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973));
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`TMEP §1207.01(b)-(b)(v). Additionally, the goods and/or services are compared to
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`determine whether they are similar or commercially related or travel in the same trade
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`channels. See Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369-71, 101
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`USPQ2d 1713, 1722-23 (Fed. Cir. 2012); Herbko Int’l, Inc. v. Kappa Books, Inc., 308
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`F.3d 1156, 1165, 64 USPQ2d 1375, 1381 (Fed. Cir. 2002); TMEP §1207.01, (a)(vi).
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`A. The Marks Are Highly Similar
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`In the instant case, applicant’s mark FARMERS MUTUAL HAIL INSURANCE
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`
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`COMPANY OF IOWA and design is highly similar to the registered marks FARMERS
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`INSURANCE GROUP (Reg. No. 1821673), FARMERS (Reg. No. 1899192),
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`FARMERS INSURANCE EXCHANGE (Reg. No. 1920139), and FARMERS
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`BUSINESS INSURANCE EXPRESS (Reg. No. 3505986). Specifically, the initial term
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`in applicant’s mark, namely, FARMERS, is identical to the initial and dominant term in
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`registrant’s marks.
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`
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`Consumers are generally more inclined to focus on the first word, prefix or
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`syllable in any trademark or service mark. See Palm Bay Imps., Inc. v. Veuve Clicquot
`
`Ponsardin Maison Fondee En 1772, 396 F. 3d 1369, 1372, 73 USPQ2d 1689, 1692 (Fed.
`
`Cir. 2005); see also Mattel Inc. v. Funline Merch. Co., 81 USPQ2d 1372, 1374-75
`
`(TTAB 2006); Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897
`
`(TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed
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`upon the mind of a purchaser and remembered” when making purchasing decisions).
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`
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`Moreover, marks may be confusingly similar in appearance where there are
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`similar terms or phrases or similar parts of terms or phrases appearing in both applicant’s
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`and registrant’s mark. See Crocker Nat’l Bank v. Canadian Imperial Bank of Commerce,
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`228 USPQ 689 (TTAB 1986), aff’d sub nom. Canadian Imperial Bank of Commerce v.
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`Wells Fargo Bank, Nat’l Ass’n, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987)
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`(COMMCASH and COMMUNICASH); In re Phillips-Van Heusen Corp., 228 USPQ
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`949 (TTAB 1986) (21 CLUB and “21” CLUB (stylized)); In re Corning Glass Works,
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`229 USPQ 65 (TTAB 1985) (CONFIRM and CONFIRMCELLS); In re Collegian
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`Sportswear Inc., 224 USPQ 174 (TTAB 1984) (COLLEGIAN OF CALIFORNIA and
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`COLLEGIENNE); In re Pellerin Milnor Corp., 221 USPQ 558 (TTAB 1983)
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`(MILTRON and MILLTRONICS); In re BASF A.G., 189 USPQ 424 (TTAB 1975)
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`(LUTEXAL and LUTEX); TMEP §1207.01(b)(ii)-(iii).
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`
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`Given the disclaimers in the cited registrations, it is noted that although marks are
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`compared in their entireties, one feature of a mark may be more significant or dominant
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`in creating a commercial impression. See In re Viterra Inc., 671 F.3d 1358, 1362, 101
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`USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224
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`USPQ 749, 751 (Fed. Cir. 1985); TMEP §1207.01(b)(viii), (c)(ii). Disclaimed matter is
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`typically less significant or less dominant when comparing marks. See In re Dixie Rests.,
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`Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Nat’l Data
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`Corp., 753 F.2d 1056, 1060, 224 USPQ 749, 752 (Fed. Cir. 1985); TMEP
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`§1207.01(b)(viii), (c)(ii).
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`
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`Finally, it is noted that the design element in applicant’s mark does not obviate
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`the likelihood of confusion. For a composite mark containing both words and a design,
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`the word portion may be more likely to be impressed upon a purchaser’s memory and to
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`be used when requesting the goods and/or services. In re Dakin’s Miniatures, Inc., 59
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`USPQ2d 1593, 1596 (TTAB 1999); TMEP §1207.01(c)(ii); see In re Viterra Inc., 671
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`F.3d 1358, 1362, 101 USPQ2d 1905, 1908, 1911 (Fed. Cir. 2012) (citing CBS Inc. v.
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`Morrow, 708 F. 2d 1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir 1983)). Thus, although
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`such marks must be compared in their entireties, the word portion is often considered the
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`dominant feature and is accorded greater weight in determining whether marks are
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`confusingly similar, even where the word portion has been disclaimed. In re Viterra Inc.,
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`671 F.3d at 1366, 101 USPQ2d at 1911 (Fed. Cir. 2012) (citing Giant Food, Inc. v.
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`Nation’s Foodservice, Inc., 710 F.2d 1565, 1570-71, 218 USPQ2d 390, 395 (Fed. Cir.
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`1983)).
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`B. The Respective Services Are Closely Related
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`
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`The goods and/or services of the parties need not be identical or directly
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`competitive to find a likelihood of confusion. See Safety-Kleen Corp. v. Dresser Indus.,
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`Inc., 518 F.2d 1399, 1404, 186 USPQ 476, 480 (C.C.P.A. 1975); TMEP §1207.01(a)(i).
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`Rather, it is sufficient to show that because of the conditions surrounding their marketing,
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`or because they are otherwise related in some manner, the goods and/or services would
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`be encountered by the same consumers under circumstances such that offering the goods
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`and/or services under confusingly similar marks would lead to the mistaken belief that
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`they come from, or are in some way associated with, the same source. In re Iolo Techs.,
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`LLC, 95 USPQ2d 1498, 1499 (TTAB 2010); see In re Martin’s Famous Pastry Shoppe,
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`Inc., 748 F.2d 1565, 1566-68, 223 USPQ 1289, 1290 (Fed. Cir. 1984); TMEP
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`§1207.01(a)(i).
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`
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`In the instant case, applicant’s services, namely, “Insurance services, namely,
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`writing multi-peril crop insurance, hail insurance and re-insurance underwriting in the
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`field of multi-peril crop insurance” are very closely related to the following of
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`registrant’s identified services:
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`
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`Registration No. 1821673 – Insurance services; namely, underwriting, claims
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`administration and agency services for property and casualty, life, automobile, boat, farm
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`and ranch, flood, workers' compensation, mortgage protection (life), renters, townhouse,
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`condominium, and homeowners insurance; underwriting and agency services of
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`individual retirement annuities (IRA) and flexible payment annuities; administration of
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`employee pension plans
`
`
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`Registration No. 1899192 – Underwriting and claims administration for property,
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`casualty, life, mortgage protection (life), automobile, farm and ranch, flood, workers'
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`compensation, renters', townhouse, condominium, and homeowners insurance;
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`underwriting and administration of individual retirement annuities (IRA) and flexible
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`payment annuities
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`
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`Registration No. 1920139 – underwriting, claims administration and property,
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`casualty and automobile insurance agency services
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`
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`Registration No. 3505986 – Insurance brokerage services; insurance services,
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`namely, providing a full range of business insurance and risk management services for
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`businesses, insurance underwriting, claims administration and agency services
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`
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`The examining attorney notes that cited Registration Nos. 1821673 and 1899192
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`specifically identify “farm and ranch” insurance services, which appear to directly relate
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`to, and may even encompass, applicant’s multi-peril crop insurance, a position that it is
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`supported by the evidence of record. Indeed, it is common in the insurance industry for
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`providers to offer multiple types of insurance to customers, including the types of
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`insurance of the application and registrations at issue.
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`
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`The record contains several third party registrations from the Office’s X-Search
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`database which demonstrate that general casualty insurance and crop insurance services
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`are of a kind that may emanate from a single source under a single mark. See In re Davey
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`Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009); In re Albert Trostel & Sons Co.,
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`29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d
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`1467, 1470 n.6 (TTAB 1988); TMEP §1207.01(d)(iii). The examining attorney notes,
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`especially, the following third party registrations attached to the subsequent Final Office
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`action issued November 30, 2011 that deal in insurance of the particular kinds at issue in
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`the application and registrations:
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`
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`Registration No. 2228147 for TRICOR INSURANCE & FINANCIAL
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`SERVICES for “insurance agencies in the fields of life, disability, health, medical, home,
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`business, property, casualty, errors and omissions, malpractice, liquor liability, garage
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`keepers liability, renter's, motor vehicle, recreational vehicle including pleasure boats,
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`defamation, personal injury, long-term care, cancer, mortgage, and including agricultural
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`related fields regarding dwellings, other buildings, property, weather damage, crop,
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`livestock insurance”
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`
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`Registration No. 2423151 for 123AG.COM for, among other things, “financial
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`services, namely, financing services; and insurance services, namely, insurance
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`underwriting in the fields of accident and crop casualty”
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`
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`Registration No. 2762312 for HORTICA INSURANCE for “insurance services,
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`namely underwriting and administering property and casualty insurance, automobile
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`insurance, liability insurance, workers compensation insurance, employment insurance,
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`pollution insurance, nursery crop insurance, flood insurance, health insurance, and
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`retirement plans for the plant nursery, floral, landscaping, and related industries”
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`
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`Registration No. 2789086 for AGRIWARE for “providing underwriting, claims,
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`and administrative services for property, casualty, crop, hail, agricultural business,
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`accident, health, disability, and workers’ compensation insurance”
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`
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`Registration No. 3103817 for STONEBRIDGE CASUALTY INSURANCE
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`COMPANY and design for “Insurance services, namely, brokerage, claims processing,
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`consultation, underwriting and administration of property insurance, disability
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`insurance, fidelity and surety insurance, marine and transportation insurance, casualty
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`insurance, credit insurance, accident and health insurance, motor vehicle insurance,
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`aircraft insurance, workers' compensation insurance, fire insurance, malpractice
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`insurance, earthquake insurance, liability insurance, mortgage guaranty insurance,
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`homeowners insurance, crop and livestock insurance, personal injury insurance”
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`
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`Registration No. 3213388 for TO GUIDE AND PROVIDE for insurance services,
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`namely underwriting and administering property and casualty insurance, automobile
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`insurance, liability insurance, workers compensation insurance, employment insurance,
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`pollution insurance, nursery crop insurance, flood insurance, health insurance, and
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`retirement plans for the plant nursery, floral, landscaping, and related industries
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`
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`Registration No. 3251149 for SILVEUS INSURANCE GROUP for “Insurance
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`agencies in the field of crop, life, health, auto, homeowners, farmowners, property, and
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`casualty insurance”
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`
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`Registration No. 3258003 for NEXTSTEP for “Insurance services, namely,
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`property and casualty insurance agency services, life and health insurance, brokerage,
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`consultation, underwriting and administration of namely, homeowners insurance,
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`automobile insurance, personal excess liability/umbrella insurance, valuable articles
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`insurance, earthquake insurance, flood insurance, watercraft insurance, recreational
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`vehicles insurance, farm and ranch insurance, life insurance, disability insurance,
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`commercial property insurance, commercial general liability insurance, workers
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`compensation insurance, business owners insurance, fidelity insurance, commercial
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`excess liability/umbrella insurance, directors and officers insurance, bonds, fiduciary,
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`employment practices and e-commerce liability insurance, professional liability,
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`transportation insurance, personal accident and health insurance, fire insurance,
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`malpractice insurance, crop and livestock insurance, annuities; Specifically NOT
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`offering supplemental medical plans available to employers as an addition to the
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`employers' current group medical plans; Mortgage lending services and real estate
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`closing and title insurance agency services, residential real estate loan financing,
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`mortgage brokerage and real estate lending services; mortgage lending and financial
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`services, namely, loan processing, retail mortgage services; Real estate services, namely,
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`real estate financing services, real estate consultation services”
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`
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`The examining attorney has also made of record printouts from several third party
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`web sites, with web addresses and dates of web page capture clearly displayed, noting
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`especially:
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`• Web page printouts from www.farmbureauinsurance-mi.com – reflecting multiple
`types of insurance offered under a single mark via identical channels of trade,
`namely, auto insurance, business insurance, crop insurance, health insurance,
`home insurance, and life insurance.
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`

`
` •
`
`
`
` Web page printouts from www.hanford-ins.com – reflecting multiple types of
`insurance offered under a single mark via identical channels of trade, namely,
`home insurance, auto insurance, agricultural insurance, life and disability
`insurance, health insurance, and business insurance.
`
`• Web page printouts from www.goen-goen.com – reflecting multiple types of
`insurance offered under a single mark via identical channels of trade, namely,
`auto insurance, home insurance, life insurance, health insurance, farm and ranch
`insurance, and crop insurance.
`
`• Web page printouts from www.progressivefcs.com – reflecting insurance
`brokerage services offering crop insurance and life insurance from various
`providers, including what appears to be applicant (referenced as “Farmers
`Mutual” on the web page), as well as Crop One, and Producers Ag.
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`
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`Finally, the examining attorney respectfully requests that this Board take judicial
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`notice of applicant’s recent trademark filings, to the extent they may be found probative,
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`U.S. Application Serial Nos. 85604322 (FARMERS MUTUAL HAIL), 85604280
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`(FARMERS MUTUAL HAIL INSURANCE COMPANY OF IOWA), and 85604236
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`(FARMERS MUTUAL HAIL INSURANCE COMPANY OF IOWA and design), all of
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`which use the applied-for mark for insurance services that are covered in the cited
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`registrations, namely, “[i]nsurance services, namely, writing property insurance,
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`automobile insurance, and liability insurance.”2 These applications were filed on April
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`20, 2012 and subsequent to the institution of the instant appeal; thus, it was not possible
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`for the examining attorney to include the application records in the prosecution history in
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`this matter.3 However, the examining attorney notes that the services identified in
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`applicant’s later-filed applications are, at least in part, identical to the services identified
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`2 See TBMP §704.12(a) stating, in part, that judicial notice may be taken when the facts are not subject to
`reasonable dispute and are “capable of accurate and ready determination by resort to sources whose
`accuracy cannot reasonably be questioned,” citing Fed. R. Evid. 201(b); Continental Airlines Inc. v. United
`Air Lines Inc., 53 USPQ2d 1385, 1393 n.5 (TTAB 1999) (additional citations omitted).
`3 The examining attorney respectfully asserts that the Board’s judicial notice of the referenced applications
`will not prejudice applicant since applicant has actual notice of applications that it filed and the information
`contained in the referenced applications, and has had such actual notice prior to the availability of the
`information to the examining attorney.
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`

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`in the cited registrations in the instant matter and are therefore directly relevant as to the
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`relatedness of the parties’ respective services in the instant matter.
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`C.
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`Applicant’s Arguments Are Not Convincing
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`
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`At page 6 of its brief, applicant asserts that the examining attorney has erred in the
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`likelihood of confusion analysis because the refusal was based solely on the common first
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`word of the respective marks and no weight was given to the wording MUTUAL HAIL
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`or the design element. The examining attorney respectfully disagrees.
`
`
`
`Consumers are generally more inclined to focus on the first word, prefix or
`
`syllable in any trademark or service mark. See Palm Bay Imps., Inc. v. Veuve Clicquot
`
`Ponsardin Maison Fondee En 1772, 396 F. 3d 1369, 1372, 73 USPQ2d 1689, 1692 (Fed.
`
`Cir. 2005); see also Mattel Inc. v. Funline Merch. Co., 81 USPQ2d 1372, 1374-75
`
`(TTAB 2006); Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897
`
`(TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed
`
`upon the mind of a purchaser and remembered” when making purchasing decisions).
`
`
`
`Marks must be compared in their entireties and should not be dissected; however,
`
`a trademark examining attorney may weigh the individual components of a mark to
`
`determine its overall commercial impression. In re Chatam Int’l Inc., 380 F.3d 1340,
`
`1342, 71 USPQ2d 1944, 1946-47 (Fed. Cir. 2004); In re Nat’l Data Corp., 753 F.2d
`
`1056, 1058, 224 USPQ 749, 751 (Fed. Cir. 1985) (“[I]n articulating reasons for reaching
`
`a conclusion on the issue of confusion, there is nothing improper in stating that, for
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`rational reasons, more or less weight has been given to a particular feature of a mark . . .
`
`.”); In re Kysela Pere et Fils, Ltd., 98 USPQ2d 1261, 1267 (TTAB 2011).
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`

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`In the instant case, applicant seeks registration of the mark under Section 2(f) on
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`the basis that the mark has acquired distinctiveness. As discussed in TMEP §1212.02(b),
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`a claim of acquired distinctiveness may be construed as a concession that the proposed
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`mark is not inherently distinctive. Moreover, although marks are compared in their
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`entireties, one feature of a mark may be more significant or dominant in creating a
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`commercial impression. See In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905,
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`1908 (Fed. Cir. 2012); In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224 USPQ 749, 751
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`(Fed. Cir. 1985); TMEP §1207.01(b)(viii), (c)(ii). Disclaimed matter is typically less
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`significant or less dominant when comparing marks. See In re Dixie Rests., Inc., 105
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`F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Nat’l Data Corp.,
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`753 F.2d 1056, 1060, 224 USPQ 749, 752 (Fed. Cir. 1985); TMEP §1207.01(b)(viii),
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`(c)(ii). Thus, given that the entirety of applicant’s mark is not inherently distinctive,
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`emphasis was correctly focused on the initial wording in the mark, wording that will
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`likely be recalled by consumers. See Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9
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`USPQ2d 1895, 1897 (TTAB 1988). In addition, regarding the design element in
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`applicant’s mark, as discussed above, the word portion is often considered the dominant
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`feature and is accorded greater weight in determining whether marks are confusingly
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`similar, even where the word portion has been disclaimed. In re Viterra Inc., 671 F.3d at
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`1366, 101 USPQ2d at 1911 (Fed. Cir. 2012) (citing Giant Food, Inc. v. Nation’s
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`Foodservice, Inc., 710 F.2d 1565, 1570-71, 218 USPQ2d 390, 395 (Fed. Cir. 1983)).
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`The examining attorney further notes that when comparing marks, the test is not
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`whether the marks can be distinguished in a side-by-side comparison, but rather whether
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`the marks are sufficiently similar in their entireties that confusion as to the source of the
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`goods and/or services offered under applicant’s and registrant’s marks is likely to result.
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`Edom Labs., Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012); L’Oreal S.A. v.
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`Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); TMEP §1207.01(b). The focus is on
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`the recollection of the average purchaser, who normally retains a general rather than
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`specific impression of trademarks. L’Oreal S.A. v. Marcon, 102 USPQ2d at 1438; Sealed
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`Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975); TMEP §1207.01(b).
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`At page 7 of its brief, applicant further argues the basis for applicant’s claim of
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`acquired distinctiveness, indicating that the proposed mark “now serve[s] as a strong
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`distinctive source indicator.” Applicant’s arguments are not persuasive. Whether the
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`proposed mark is eligible for a claim of acquired distinctiveness is not at issue in the
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`instant appeal. Rather, the instant matter is focused on the likelihood of consumer
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`confusion with respect to the marks in the cited registrations, marks that all include
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`FARMERS as the first and dominant term, and, in the case of Reg. No. 1899192, the only
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`term. The additional wording in applicant’s mark does not alter consumers’ impression
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`dictated by this initial term, nor does the additional descriptive and generic wording, or
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`the design element, obviate the likelihood of confusion. To this end, it should also be
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`noted that the Trademark Act not only guards against the misimpression that the senior
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`user is the source of the junior user’s goods and/or services, but it also protects against
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`“reverse confusion,” that is, the junior user is the source of the senior user’s goods and/or
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`services. In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d 1687, 1690 (Fed. Cir.
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`1993); Fisons Horticulture, Inc. v. Vigoro Indust., Inc., 30 F.3d 466, 474-75, 31 USPQ2d
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`1592, 1597-98 (3d Cir. 1994); Banff, Ltd. v. Federated Dep’t Stores, Inc., 841 F.2d 486,
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`490-91, 6 USPQ2d 1187, 1190-91 (2d Cir. 1988).
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`Regarding the parties’ respective services, applicant argues that the parties’
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`services are not identical or competitive. Applicant’s arguments are not persuasive. As
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`discussed above, the goods and/or services of the parties need not be identical or directly
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`competitive to find a likelihood of confusion. See Safety-Kleen Corp. v. Dresser Indus.,
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`Inc., 518 F.2d 1399, 1404, 186 USPQ 476, 480 (C.C.P.A. 1975); TMEP §1207.01(a)(i).
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`Rather, it is sufficient to show that because of the conditions surrounding their marketing,
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`or because they are otherwise related in some manner, the goods and/or services would
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`be encountered by the same consumers under circumstances such that offering the goods
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`and/or services under confusingly similar marks would lead to the mistaken belief that
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`they come from, or are in some way associated with, the same source. In re Iolo Techs.,
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`LLC, 95 USPQ2d 1498, 1499 (TTAB 2010); see In re Martin’s Famous Pastry Shoppe,
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`Inc., 748 F.2d 1565, 1566-68, 223 USPQ 1289, 1290 (Fed. Cir. 1984); TMEP
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`§1207.01(a)(i). The evidence of record establishes the relatedness of the parties’
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`respective services.
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`Applicant next argues that the relevant consumers are sophisticated consumers
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`because applicant’s consumers are farming professionals knowledgeable about crop
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`insurance. In support of this position, applicant asserts Checkpoint Systems, Inc. v. Check
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`Point Software Technologies, Inc., 269 F.3d 270, 60 U.S.P.Q.2d 1609 (3rd Cri. 2001).
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`This argument is not persuasive.
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`The fact that purchasers are sophisticated or knowledgeable in a particular field
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`does not necessarily mean that they are sophisticated or knowledgeable in the field of
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`trademarks or immune from source confusion. TMEP §1207.01(d)(vii); see In re
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`Cynosure, Inc., 90 USPQ2d 1644 (TTAB 2009); In re Decombe, 9 USPQ2d 1812 (TTAB
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`1988); In re Pellerin Milnor Corp., 221 USPQ 558 (TTAB 1983). It is further noted that
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`the Checkpoint Systems case upon which applicant relies does not deal with insurance
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`issues. Moreover, it is specifically noted that the third party evidence of record shows
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`that the relevant consumers in the instant matter may purchase both applicant and
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`registrant’s services from a single source under a common mark, thereby showing
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`relatedness of the parties’ respective services.
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`Applicant further argues that there is no evidence of actual confusion in the
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`instant matter. This argument is not persuasive. The test under Trademark Act Section
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`2(d) is whether there is a likelihood of confusion. It is unnecessary to show actual
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`confusion in establishing likelihood of confusion. TMEP §1207.01(d)(ii); e.g., Weiss
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`Assocs. Inc. v. HRL Assocs. Inc., 902 F.2d 1546, 1549, 14 USPQ2d 1840, 1842-43 (Fed.
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`Cir. 1990). The Trademark Trial and Appeal Board stated as follows:
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`[A]pplicant’s assertion that it is unaware of any actual confusion occurring
`as a result of the contemporaneous use of the marks of applicant and
`registrant is of little probative value in an ex parte proceeding such as this
`where we have no evidence pertaining to the nature and extent of the use
`by applicant and registrant (and thus cannot ascertain whether there has
`been ample opportunity for confusion to arise, if it were going to); and the
`registrant has no chance to be heard from (at least in the absence of a
`consent agreement, which applicant has not submitted in this case).
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`In re Kangaroos U.S.A., 223 USPQ 1025, 1026-27 (TTAB 1984).
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`Applicant next argues concurrent use of the parties’ respective marks. However,
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`the examining attorney notes that applicant did not seek concurrent use registration in the
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`instant matter, nor does it appear that applicant is interested in limiting use of its mark to
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`a particular geographical area. See TMEP §1207.04(a), stating, in part:
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`In a concurr