throbber
THIS OPINION
`IS NOT A PRECEDENT OF
`THE TTAB
`
`Mailed: August 9, 2007
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______
`
`Trademark Trial and Appeal Board
`_______
`
`Cuban Cigar Brands, N.V.
`v.
`Valle Grande Limitada
`_______
`
`Opposition No. 91165277
`to Application No. 78392366
`filed on March 29, 2004
`_______
`
`
`Charles W. Grimes of Grimes & Battersby for Cuban Cigar
`Brands, N.V.
`
`David A. Weinstein, Esq. for Valle Grande Limitada.
`_______
`
`
`Before Walters, Walsh and Cataldo, Administrative Trademark
`Judges.
`
`Opinion by Walters, Administrative Trademark Judge:
`
`Cuban Cigar Brands, N.V. filed its opposition to the
`
`
`
`application of Valle Grande Limitada to register the mark
`
`MONTECRISTO for “olive oil,” in International Class 29, and
`
`“vinegars and balsamic vinegar,” in International Class 30.1
`
`
`1 Application Serial No. 78392366, filed March 29, 2004, based upon an
`allegation of a bona fide intention to use the mark in commerce in
`connection with the identified goods.
`
`
`

`
`Opposition No. 91165277
`
`
`
`As grounds for opposition, opposer asserts that
`
`applicant’s mark, when applied to applicant’s goods so
`
`resembles opposer’s previously used and registered marks
`
`shown below as to be likely to cause confusion, under
`
`Section 2(d) of the Trademark Act.
`
`MARK
`
`MONTECRISTO
`
`
`
`MONTE CRISTO
`
`MONTE CRISTO
`
`GOODS and
`NOTATIONS
`Cigars
`
`REGISTRATION
`NO.
`1173547
`
`0332324
`
`Cigars,
`cigarettes,
`and cut
`tobacco
`
`2236889
`
`2304416
`
`Cologne,
`after-shave
`lotion, cuff
`links,
`wallets,
`bathrobes,
`scarves,
`headwear.
`
`“The English
`translation
`of Monte
`Cristo is
`Mountain of
`Christ.”
`Desk sets,
`desk pads,
`pens, stands
`for pens and
`pencils,
`golf balls,
`cigar cases
`not of
`precious
`metal.
`
`
`
`2
`
`

`
`Opposition No. 91165277
`
`MONTECRISTO
`
`MONTECRISTO
`
`MONTECRISTO
`
`MONTECRISTO
`
`
`
`
`“The English
`translation
`of Monte
`Cristo is
`Mountain of
`Christ.”
`Hat
`ornaments
`not of
`precious
`metal,
`ashtrays not
`of precious
`metal,
`credit card
`services
`Cocktail
`lounge, bar
`and
`restaurant
`services;
`night clubs
`Alcoholic
`beverages
`Ground and
`whole bean
`coffee
`
`“The English
`translation
`of Monte
`Cristo is
`Mountain of
`Christ.”
`
`2396980
`
`2623858
`
`2594564
`
`2855557
`
`As an additional ground of opposition, opposer asserts
`
`that its MONTECRISTO mark is famous in connection with
`
`premium cigars; that its mark has been distinctive and
`
`famous in the United States since before applicant acquired
`
`any rights in its mark; and that registration of the opposed
`
`mark will dilute the distinctive quality of opposer’s famous
`
`marks.
`
`
`
`3
`
`

`
`Opposition No. 91165277
`
`Applicant, in its answer, admitted that it has not made
`
`use of MONTECRISTO as a trademark in the United States; that
`
`applicant’s mark “is exactly similar in appearance and
`
`sound” to opposer’s pleaded MONTECRISTO marks in
`
`Registrations Nos. 1173547, 2396980, 2623858, 2594564 and
`
`2855557; and that opposer submitted copies of its pleaded
`
`registrations with its notice of opposition. Otherwise,
`
`applicant denied the salient allegations of opposer’s
`
`claims.
`
`Preliminary Matters
`
`There are several procedural and evidentiary matters to
`
`address before we turn to the merits of this opposition.
`
`First, opposer submitted with its notice of opposition
`
`photocopies of its pleaded registrations; but, it did not
`
`submit status and title copies of these registrations as
`
`required by Trademark Rule 2.122(d)(1), 37 C.F.R.
`
`§2.122(d)(1). See TBMP §§704.03(b)(1) and 704.05. However,
`
`applicant, in its brief, does not challenge the competence
`
`of the photocopies of opposer’s pleaded registrations and,
`
`in fact, states that “[b]ased upon opposer’s evidence and
`
`the constructive use effect of its federal registrations,
`
`opposer’s priority date is earlier than applicant’s priority
`
`date” and that “opposer’s evidence in support of its claims
`
`must be limited to (1) the constructive use effect
`
`applicable to its pleaded registrations for priority
`
`
`
`4
`
`

`
`Opposition No. 91165277
`
`purposes and, (2) only the goods and services recited in
`
`those registrations” (brief, pp. 8 and 22, respectively).
`
`Therefore, we deem applicant to have conceded the ownership
`
`and subsistence of the pleaded registrations.
`
`Second, opposer submitted its own responses to
`
`applicant’s interrogatories as an exhibit to the testimony
`
`of Mr. Workman. Other than to acknowledge their identity
`
`and sign a verification that the answers are true and
`
`correct, Mr. Workman did not discuss the interrogatory
`
`responses document. Interrogatory responses may be made of
`
`record only by the inquiring party, except under the
`
`provisions of Trademark Rule 2.120(j)(5), 37 C.F.R.
`
`§2.120(j)(5), or upon the stipulation of the parties. See
`
`TBMP §704.10 and cases cited therein. Applicant, in its
`
`brief, has not objected to this submission, has listed these
`
`interrogatory responses as being part of the record before
`
`the Board, and has relied extensively on these responses in
`
`arguing its position. Therefore, we deem applicant to have
`
`stipulated to the submission by opposer of its responses to
`
`applicant’s interrogatories.
`
`Third, opposer submitted by notice of reliance
`
`documents characterized as having been produced in response
`
`to applicant’s document production request. It is
`
`immaterial that such documents were part of opposer’s
`
`document production to applicant and applicant has not
`
`
`
`5
`
`

`
`Opposition No. 91165277
`
`objected to this material. Each of the documents in
`
`Exhibits B through G is an excerpt from a print publication
`
`in general circulation and, thus, has been properly
`
`submitted by notice of reliance. Exhibits H and J are
`
`excerpts from print publications obtained online and, as
`
`such, are also properly submitted by notice of reliance.
`
`However, Exhibit I consists of excerpts of advertisements
`
`from Internet websites. Contrary to opposer’s statement in
`
`its notice of reliance, these Internet excerpts are not
`
`self-authenticating in nature and thus not admissible by
`
`notice of reliance. Raccioppi v. Apogee Inc., 47 USPQ2d
`
`1368, 1370 (TTAB 1998). It appears that some if not all of
`
`these exhibits are also submitted as exhibits to Mr.
`
`Workman’s testimony. However, Mr. Workman does not
`
`authenticate these exhibits during his testimony. Despite
`
`applicant’s failure to object to this evidence, it is of no
`
`probative value due to its lack of authentication and, thus,
`
`the Board has not considered this Internet evidence.
`
`Fourth, applicant objects to the testimony deposition
`
`by opposer of Mr. Workman, stating that “a certified copy of
`
`the Workman Tr. Dep. … does not appear to have been filed in
`
`this proceeding as required under 37 CFR §2.125 [TBMP
`
`§703.01(k)].” (Applicant’s Brief, p. 9.) Applicant does
`
`not specify any deficiency it perceives in the filing of the
`
`deposition other than the alleged lack of certification.
`
`
`
`6
`
`

`
`Opposition No. 91165277
`
`However, except that it is not signed by the witness as
`
`required under 37 CFR §2.123(e)(5), all requirements for
`
`filing the deposition, including certification, have been
`
`met. With regard to the lack of signature, we refer to 37
`
`CFR §2.123(j), which provides, in part, that “[n]otice will
`
`not be taken of merely formal or technical objections which
`
`shall not appear to have wrought a substantial injury to the
`
`party raising them; and in case of such injury it must be
`
`made to appear that the objection was raised at the time
`
`specified in said rule.” Generally, procedural objections
`
`to testimony depositions must be raised promptly or they are
`
`waived. See TBMP §707.03(c). In this case, applicant has
`
`not alleged any injury from this procedural irregularity.
`
`Further, this is an irregularity that could have been cured
`
`if promptly presented, but applicant waited until its final
`
`brief to raise the alleged lack of certification and did not
`
`raise the lack of signature at all. Therefore, we find
`
`applicant’s objection to be waived. In any event, applicant
`
`has not challenged the substance of the deposition and,
`
`thus, we find the deficiency sufficiently insignificant in
`
`this instance to permit us to consider Mr. Workman’s
`
`testimony deposition herein.
`
`Finally, we address a substantive issue raised by
`
`applicant for the first time in its brief. Applicant makes
`
`a number of arguments that are essentially the same
`
`
`
`7
`
`

`
`Opposition No. 91165277
`
`argument, namely, that opposer is not the proper plaintiff
`
`in this case or the proper owner of the pleaded marks and
`
`registrations because it does not use the marks or otherwise
`
`control the use of the marks or the quality of the products
`
`and services identified hereunder. Despite the fact that
`
`applicant devoted a substantial amount of its briefing to
`
`this argument, it is not well taken. Opposer is the wholly
`
`owned subsidiary of Altadis U.S.A., and Altadis U.S.A.
`
`clearly controls the licensing and use of the involved marks
`
`and the manufacture of the identified goods and rendering of
`
`the identified services. We note the following statements
`
`in this regard by Mr. Workman during his testimony
`
`deposition:
`
`What is your current place of employment? Who is
`your employer?
`
`Altadis U.S.A.
`
`. . .
`
`Has the company always been known as Altadis
`U.S.A. ?
`
`No. It used to be known as Consolidated Cigar,
`who I started with. In 2000 Consolidated Cigar
`merged with HavaTampa Cigars and formed Altadis
`U.S.A.
`
`What is Cuban Cigar Brands, N.V.?
`
`That is a trademark company that is a subsidiary
`of Altadis U.S.A.
`
`Do you know if it is a wholly owned subsidiary of
`Altadis?
`
`To the best of my knowledge, yes, sir.
`
`Q
`
` A
`
`
`
`
`
` Q
`
`
`
` A
`
`
`
` Q
`
` A
`
`
`
`
`
` Q
`
`
`
` A
`
`
`
`
`
`8
`
`

`
`Opposition No. 91165277
`
`So for the balance of this deposition, whenever I
`refer to quote, Altadis, close quote, I would like
`to have you understand that I’m referring not only
`to Altadis U.S.A. Inc., but also to its
`predecessor, Consolidated Cigar Corporation and to
`its wholly owned subsidiary Cuban Cigar Brands,
`N.V. Is that understandable to you?
`
` Q
`
`
`
`Yes.
`
` A
`
`
`
`We note that, in any event, applicant’s claims of non-
`
`
`
`use and abandonment by opposer of its marks are unavailing
`
`because they constitute impermissible collateral attacks on
`
`opposer’s registrations in the absence of counterclaims to
`
`cancel those registrations.
`
`The Record
`
`
`
` The record consists of the pleadings; the file of the
`
`involved application; the pleaded registrations; various
`
`specified responses of applicant to opposer’s
`
`interrogatories and requests for admissions and excerpts
`
`from printed publications, all made of record by opposer’s
`
`notice of reliance; and the testimony deposition by opposer
`
`of Eric Workman, vice president, marketing and national
`
`accounts at Altadis U.S.A., opposer’s parent company, with
`
`accompanying exhibits. Applicant submitted no testimony or
`
`other evidence. Both parties filed briefs on the case.
`
`Factual Findings
`
`
`
`Opposer is the wholly owned subsidiary of Altadis
`
`U.S.A. (hereinafter referred to together as “opposer”),
`
`which primarily manufactures and sells premium and mass-
`
`
`
`9
`
`

`
`Opposition No. 91165277
`
`market cigars. The MONTECRISTO brand, one of opposer’s
`
`brands, primarily identifies a premium cigar. It is sold to
`
`approximately 2000 premium retailers by its thirty-five
`
`person premium cigar sales force (Workman Dep. p. 7-8, 15),
`
`although one of its five types of MONTECRISTO cigars is
`
`aimed at the mass market and distributed in convenience
`
`stores, Walgreens and CVS, among others (id. at p. 27, 34).
`
`
`
`Opposer also markets its MONTECRISTO cigars through
`
`wholesale distributors, who resell the cigars to consumers
`
`via the Internet or to restaurants, nightclubs and golf
`
`courses designated by opposer (id. at p. 15)(see also
`
`Exhibit 2 to Workman Deposition, Opposer’s Answer to
`
`Interrogatory No. 2, hereinafter “Workman Dep. Ex. 2, No.
`
`2”).
`
`Opposer has licensed the MONTECRISTO brand for use in
`
`connection with coffee (id. at p. 30) and alcoholic
`
`beverages (Workman Dep., Ex. 2, No. 2). Opposer has
`
`licensed the mark for use on a variety of ancillary items,
`
`including coffee mugs, ashtrays, hats, and ashtrays, all
`
`prior to the filing date of the application herein. During
`
`Christmas 2004, opposer promoted a package combining
`
`MONTECRISTO cigars, coffee and a demitasse cup to
`
`approximately 1200 retailers (id. at p. 30). Opposer has
`
`also licensed the MONTECRISTO brand for use in connection
`
`with, for example, rum and credit cards (id. at p. 47).
`
`
`
`10
`
`

`
`Opposition No. 91165277
`
`Historically, premium cigar retailers sold only cigars
`
`and tobacco, but they have branched out to include a variety
`
`of items including fine coffees (id. at p. 28-29).
`
`Retailers’ catalogs and websites that include opposer’s
`
`cigars also include clothing items, hats and items such as
`
`coffee cups, beer steins, golfing accessories and,
`
`occasionally, fancy food items such as chocolates and nuts
`
`(id. at p. 36). Most of these retailers do not include
`
`edibles or products found in the kitchen (id. at p. 38).
`
`MONTECRISTO cigars were first sold in the United States
`
`in 1935 as a Cuban handmade cigar by opposer’s predecessor
`
`(id. at p. 13). Sales in the United States occurred
`
`regularly until 1960, at which time sales were interrupted
`
`by the Cuban Embargo (id.). In 1978, opposer purchased the
`
`brand and has sold MONTECRISTO brand cigars in the United
`
`States since that time (id. at p. 14). Opposer advertises
`
`these cigars in men-oriented magazines, particularly cigar-
`
`oriented magazines (id. at 15-16). Opposer also conducts
`
`cooperative advertising with its retailers and sends
`
`retailers promotional items such as shopping bags, humidors,
`
`ashtrays and coffee cups to be given away and/or sold (id.
`
`at p. 17). The vast majority of cigar smokers are men,
`
`although Mr. Workman testified that these ancillary items
`
`may be purchased and/or used by women (id. at 20).
`
`Opposer’s Montecristo Foundation features the cigars at
`
`
`
`11
`
`

`
`Opposition No. 91165277
`
`charity events and opposer promotes the MONTECRISTO brand
`
`and ancillary items on its website (id. at p. 26).
`
`Mr. Workman stated that opposer’s MONTECRISTO premium
`
`cigars are among the best-known and top-selling brands of
`
`cigars in the United States, comparing it to Cohiba, Fuente
`
`and Macanudo cigars (id. at p. 41). In the deposition of
`
`Mr. Workman, opposer’s counsel indicated that the deposition
`
`would resume at later date under a protective order.
`
`However, the deposition was not continued nor was a
`
`protective order entered in this case. The record contains
`
`no evidence of sales or advertising dollar amounts either
`
`for opposer or the industry as a whole.
`
`Based on its responses to opposer’s requests for
`
`admissions and interrogatories, we find that applicant
`
`selected its mark in August 2000; that applicant has used
`
`its mark only in Chile in connection with olive oil since
`
`November 2002 and in connection with vinegars since August
`
`2004; that applicant has not used or advertised its mark in
`
`the United States in connection with the identified goods;
`
`and that applicant intends to sell its goods in the United
`
`States directly to restaurants and, through supermarkets and
`
`specialty stores, to consumers. Applicant admits that it
`
`was aware of opposer’s use of its mark in connection with
`
`cigars at the time it chose its mark (Admission No. 1);
`
`although, applicant asserts that it chose its mark based on
`
`
`
`12
`
`

`
`Opposition No. 91165277
`
`a Bible passage rather than any attempt to trade on
`
`opposer’s good will in its marks (Answer to Interrogatory
`
`No. 2). Applicant admits that “opposer’s trademark
`
`MONTECRISTO is a well-known trademark specifically in
`
`connection with ‘cigars’; [but states that] consumers do not
`
`identify the opposer’s trademarks with other goods different
`
`from ‘cigars’” (Answer to Interrogatory No. 6).
`
`Analysis
`
`Because opposer’s pleaded registrations are of record,
`
`and because opposer’s likelihood of confusion claim is not
`
`frivolous, we find that opposer has established its standing
`
`to oppose registration of applicant’s mark. See Cunningham
`
`v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir.
`
`2000); Lipton Industries, Inc. v. Ralston Purina Co., 670
`
`F.2d 1024, 213 USPQ 185 (CCPA 1982). Moreover, because
`
`opposer’s pleaded registrations are of record, Section 2(d)
`
`priority is not an issue in this case as to the marks and
`
`goods and services covered by said registrations. See King
`
`Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182
`
`USPQ 108 (CCPA 1974).
`
`Our determination of likelihood of confusion under
`
`Section 2(d) must be based on an analysis of all of the
`
`probative facts in evidence that are relevant to the factors
`
`bearing on the likelihood of confusion issue. In re E.I. du
`
`Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
`
`
`
`13
`
`

`
`Opposition No. 91165277
`
`1973). See also Palm Bay Imports, Inc. v. Veuve Clicquot
`
`Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
`
`1689 (Fed. Cir. 2005); In re Majestic Distilling Company,
`
`Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); and In
`
`re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531
`
`(Fed. Cir. 1997).
`
`The first du Pont factor we consider is the fame of
`
`opposer’s marks. As our primary reviewing Court has made
`
`clear, fame of the prior mark plays a dominant role in cases
`
`featuring a famous or strong mark. “Famous or strong marks
`
`enjoy a wide latitude of legal protection” and a famous mark
`
`“casts a long shadow which competitors must avoid.” Kenner
`
`Parker Toys, Inc. v. Rose Art Industries, Inc., 963 F.2d
`
`350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992); and Recot, Inc.
`
`v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894 (Fed. Cir.
`
`2000). We consider opposer’s claim of fame herein to
`
`pertain to its cigars, as this is its primary product by its
`
`own admission.
`
`Applicant has admitted that opposer’s MONTECRISTO mark
`
`is “well-known” in connection with cigars. However, opposer
`
`has not submitted evidence that would establish that this
`
`renown rises to the level of “fame,” as that term is
`
`understood in the law. See Bose Corp. v. QSC Audio Products
`
`Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1308 (Fed. Cir. 2002)
`
`(“Because fame plays such a dominant role in the confusion
`
`
`
`14
`
`

`
`Opposition No. 91165277
`
`analysis, … those who claim fame for product marks that are
`
`used in tandem with a famous house mark can properly be put
`
`to tests to assure their entitlement to the benefits of fame
`
`for the product marks”); Opryland USA, Inc. v. Great
`
`American Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471, 1474
`
`(Fed. Cir. 1992) (“a well-known mark enjoys an appropriately
`
`wider latitude of legal protection, for similar marks tend
`
`to be more readily confused with a mark that is already
`
`known to the public”); and Specialty Brands, Inc. v. Coffee
`
`Bean Distributors, Inc., 748 F.2d 669, 223 USPQ 1281 (Fed.
`
`Cir. 1984).
`
`Opposer’s allegation of fame, asserted in its brief and
`
`by its employee, Eric Workman, is self-serving. Further,
`
`its evidence in support of this claim is minimal, consisting
`
`of promotional materials, advertising in a several
`
`publications, and two publication excerpts, from The Cigar
`
`Connoisseur and Pittsburg Business Times, that make
`
`reference to opposer’s MONTECRISTO cigars. Opposer has
`
`submitted no dollar amounts for its sales or advertising, no
`
`indication of the breadth of exposure that it receives by
`
`advertising in the aforementioned publications, and no
`
`evidence of its sales ranking vis-à-vis other cigar brands.
`
`There is no direct evidence of consumer recognition of its
`
`MONTECRISTO marks in connection with cigars and insufficient
`
`indirect evidence of the nature and extent of consumer
`
`
`
`15
`
`

`
`Opposition No. 91165277
`
`recognition from which to conclude that MONTECRISTO is
`
`famous in connection with cigars.2 Therefore, while it is
`
`clear from applicant’s concession that opposer has
`
`established a certain degree of renown for its MONTECRISTO
`
`cigars, we conclude that opposer has not established that
`
`its mark is famous in connection therewith.
`
`In considering the evidence of record on the remaining
`
`du Pont factors, we keep in mind that “[t]he fundamental
`
`inquiry mandated by Section 2(d) goes to the cumulative
`
`effect of differences in the essential characteristics of
`
`the goods and differences in the marks.” Federated Foods,
`
`Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24,
`
`29 (CCPA 1976). See also In re Azteca Restaurant
`
`Enterprises, Inc., 50 USPQ2d 1209 (TTAB 1999) and the cases
`
`cited therein.
`
`Regarding the parties’ marks, as applicant admits, its
`
`mark is identical to opposer’s five pleaded and established
`
`single-word MONTECRISTO marks. We also conclude that
`
`applicant’s mark is essentially the same as opposer’s two
`
`pleaded and established two-word MONTE CRISTO marks because
`
`the space creating the two words in these marks is
`
`insignificant and does not distinguish it from the single-
`
`word mark MONTECRISTO, which consists of the two
`
`
`2 Opposer emphasizes that its MONTECRISTO cigars are of premium quality.
`However, the fact that the mark may identify a high quality and/or
`exclusive product does not mean that it is a famous mark.
`
`
`
`16
`
`

`
`Opposition No. 91165277
`
`independently identifiable Spanish words MONTE and CRISTO.
`
`Applicant’s mark is likewise substantially similar to
`
`opposer’s pleaded and established design mark, which
`
`consists of the two separate words MONTE and CRISTO within a
`
`crest consisting of crossed swords. Certainly, the word
`
`portion of opposer’s mark is dominant because it is the word
`
`portion of the mark that is used to call for the goods and
`
`because the shield is more in the nature of a border or
`
`carrier for the words than a highly distinctive design.
`
`Therefore, this factor weighs strongly in opposer’s favor.
`
`There is no indication that the purchasers of the
`
`respective goods and services are other than general
`
`consumers, encompassing all levels of sophistication and
`
`purchasing discretion. Thus, this factor also weighs in
`
`opposer’s favor.
`
`We turn now to the goods and services of the parties.
`
`There is no evidence that cigars and olive oil and vinegar
`
`are related items or items that may be perceived by
`
`consumers as coming from the same source. For example,
`
`there is no evidence that such items may be used together or
`
`that they are complementary products; nor is there evidence
`
`that they would be sold in the same stores or in close
`
`proximity in the same stores. Mr. Workman testified that
`
`tobacco and cigar stores have expanded to include sales of
`
`specialty items such as coffee, nuts and chocolate.
`
`
`
`17
`
`

`
`Opposition No. 91165277
`
`However, it is mere speculation to conclude that this would
`
`also include sales of olive oil and vinegar, especially in
`
`view of Mr. Workman’s testimony that most of these retailers
`
`do not include edibles or products found in the kitchen.
`
`Opposer indicates that its cigars are available at some
`
`restaurants and nightclubs and opposer indicates that it
`
`will sell its products to restaurants. However, there is no
`
`evidence indicating, even if these goods did appear in the
`
`same stores and restaurants, that consumers encountering
`
`these products would believe that these disparate items come
`
`from the same source.
`
`
`
`The additional items identified in the pleaded
`
`registrations include smoking accessories, such as, cigar
`
`cases and ashtrays; personal items, such as, cologne, after-
`
`shave lotion, cuff links, wallets, bathrobes, scarves,
`
`headwear and hat ornaments, desk sets, desk pads, pens,
`
`stands for pens and pencils, golf balls; as well as
`
`Alcoholic beverages and ground and whole bean coffee.
`
`Opposer’s identified services include credit card services;
`
`and nightclub, cocktail lounge, bar and restaurant services.
`
`There is no evidence that these goods and services, either
`
`individually or considered as a group, have any relationship
`
`to olive oil and/or vinegar. Many of opposer’s products, as
`
`well as its credit card services, are logical ancillary
`
`items which service to promote opposer’s primary product
`
`
`
`18
`
`

`
`Opposition No. 91165277
`
`under its mark – cigars. There is no evidence in the record
`
`that olive oil or vinegar logically fall into that category.
`
`In view of the great differences between opposer’s goods and
`
`services and applicant’s goods, we find that this factor is
`
`determinative.
`
`
`
`Therefore, in view of the wide differences between
`
`applicant’s identified goods and opposer’s identified goods
`
`and services, and despite the identity of the marks, we
`
`conclude that there is no likelihood of confusion.
`
`
`
`Opposer has not established the fame of its marks in
`
`connection with cigars or the identified goods and services
`
`in its pleaded registrations and, thus, its dilution claim
`
`must fail.
`
`
`
`Decision: The opposition is dismissed.
`
`
`
`19

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