Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 THE STOUFFER CORPORATION
HEALTH VALLEY NATURAL FOODS, INC.
January 30, 1987
Hearing: September 9, 1986
Opposition No. 70,435, to application Serial No. 434,772, filed July 15, 1983
For Stouffer Corporation
A. C. Body
Body, Vickers & Daniels
For Health Valley Natural Foods, Inc.
Before Allen, Krugman and Cissel
Opinion by Allen
Health Valley Natural Foods, Inc. has applied to register the term LEAN LIVING as a trademark for 'chicken crepes, lasagna and enchiladas.' [FN1] Use of the mark since July 1, 1983 has been alleged.
The Stouffer Corporation has opposed registration, alleging long prior use of the trademark LEAN CUISINE to identify a line of frozen prepared foods; its ownership of registrations of this mark for 'frozen prepared entrees having a meat, fish or poultry base' and 'frozen prepared noodle entrees and pasta entrees;' [FN2] that its LEAN CUISINE trademark has become extremely well known to consumers of food; that the mark LEAN LIVING is confusingly similar to LEAN CUISINE; and that registration and continued use of applicant's mark is likely to result in confusion, mistake and deception. In its answer, applicant has generally denied all of the essential allegations of Stouffer's opposition.
The record consists of the file of the opposed application; applicant's answers to certain of opposer's interrogatories, and certified, status copies of the pleaded registrations, supra, note 2, showing ownership in opposer, introduced with opposer's notice of reliance; and trial testimony (with exhibits) on behalf of Stouffer. Health Valley took no testimony and introduced no evidence. Both parties filed briefs and both participated in oral argument of the issues at a hearing held for this purpose.
There is no question, as opposer's well-documented record demonstrates, that LEAN CUISINE is a well-known trademark in the field of calorie-controlled entree foods. This brand accounts for 67 percent of the sales of this entire category in the United States. By comparison, its closest competitor, WEIGHT WATCHERS, accounts for 20 percent. [FN3] Sales of more than $400 million of LEAN CUISINE entrees in 1985 were supported by $13 million in expenditures for advertising the brand. The brand has enjoyed large scale sales since 1981 and, at the time of the taking of testimony in this proceeding, LEAN CUISINE was used on 21 specific frozen prepared entrees, namely beef and pork cannelloni, cheese cannelloni, chicken cacciatore, chicken chow mein, chicken a l'orange, chicken and vegetables, filet of fish Divan, filet of fish Florentine, filet of fish jardiniere, glazed chicken, linguini, meatball stew, oriental beef, oriental scallops and vegetables, salisbury steak, spaghetti, stuffed cabbage, tuna lasagna, turkey Dijon, veal primavera, and zucchini lasagna. The significance of the LEAN CUISINE brand is demonstrated by the fact that a single entree within the line, glazed chicken, outsells the entire line of several of its competitors.
*2 It is also apparent that LEAN LIVING is sought to be registered for goods identical to and directly competitive with the products on which Stouffer's well-known LEAN CUISINE mark is used. From opposer's evidence and the specimen packages in the file of the opposed application, it is quite clear that the products of both parties are sold as calorie-controlled frozen prepared entrees, that the marks are used on a line of such products, and that both brands are aimed at the health-conscious individual who desires a low-calorie, low-fat, balanced diet. [FN4] As to the latter point, it is also noted that the recitation of goods for which applicant seeks to register its LEAN LIVING trademark is broad enough to comprise calorie-controlled frozen prepared entrees sold to this special class of purchasers.
The only issue we have to decide is whether, considering the facts of record, the contemporaneous use of LEAN LIVING and the well-known mark LEAN CUISINE on these identical goods is likely to result in confusion, mistake or deception in the marketplace. In its brief, opposer seeks to position this case alongside Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 223 USPQ 1281 (Fed. Cir. 1984), by which this Board's holding that SPICE VALLEY and the well-known SPICE ISLandS marks were not likely to be confused was reversed, and urges here that an evaluation of its opposition against LEAN LIVING based on the same criteria set forth in that decision necessarily leads to the conclusion that its opposition should be sustained. We agree that there are similarities in the facts presented in Specialty Brands and those here. However, applying the criteria set forth in that decision to the relevant facts before us, we nevertheless conclude that confusion is unlikely.
(i) The Similarity of the Goods
As we have indicated, the goods are identical.
(ii) The Similarity of Trade Channels
The channels of trade are also the same.
(iii) The Circumstances of Sale and Identity of Buyers
We agree with opposer, brief, 10, that the products of both lines are normally inexpensive, subject to quick consumption and frequent replacement purchase. There is also no doubt that purchasers in supermarkets, an important outlet for both parties' goods, are apt to be casual when selecting goods out of self-service frozen food cases, especially when repurchasing the same brand. Specialty Brands, supra, 223 USPQ at 1282.
On the other hand, we do not agree that the circumstances here justify our applying a lower standard of care than that of ordinary consumers. Considering the particular nature of the goods herein, we do not believe that purchasing decisions are apt to be made impulsively or carelessly, as would be the case of a child purchasing candy or a toy. Thus, even in the hustle and bustle atmosphere of a supermarket, diet-conscious purchasers of these prepared entrees are a special class of purchasers who may be expected, at least, to examine the front of the packages in order to determine what kind of entree is contained therein and its caloric content. On both of these parties' packages, as well as on most of the competitive brands, this information is prominently displayed in close association with the trademarks. Therefore, a lesser standard of care is not justified. E.g., Weight Watchers International v. I. Rokeach & Sons, Inc., 211 USPQ 700, 706 (TTAB 1981), aff'd on other ground, 576 F. Supp. 841, 216 USPQ 1090 (S.D.N.Y. 1982); see, generally, T.J. McCarthy, TRADEMARKS and UNFAIR COMPETITION § 23:28 C (2d ed. 1984).
(iv) The Variety of Goods on Which the Mark Is Used
*3 In that Stouffer uses LEAN CUISINE on a line of 21 different frozen prepared entrees, this mark might be considered as a 'family' mark in the sense that it identifies a line of products which may be expanded from time to time. See, In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). However, since the same combination of terms, LEAN CUISINE, is used on all of the products in the Stouffer line, we do not draw from this fact the inference urged by opposer, brief, 10, 'that persons encountering a Health Valley product for the first time would believe it to be an expansion of the Stouffer line.' In fact, unless such persons were to misread LIVING for CUISINE (unlikely in view of our conclusions under iii above), it is more likely they would have the opposite impression because the absence of the word CUISINE from the Health Valley package would be atypical of what they had come to expect on Stouffer's entire line of products. Therefore, while this factor does not support the nonlikelihood of confusion, it does not on the other hand, support opposer's position that confusion is likely.
(v) Actual Confusion
There is no evidence of the presence or absence of actual confusion and neither party has presented any survey evidence. The only other direct evidence bearing on the issue of confusion is the testimony of opposer's witness, Rick Annett, Stouffer's marketing manager for the LEAN CUISINE brand (deposition transcript, 72-88); however, this testimony has little probative value in regard to the issues before us. As applicant has pointed out in its brief, the testimony is obviously subject to a natural bias in view of Annett's position of direct responsibility for success of the LEAN CUISINE brand. In a highly competitive market as this one, it is not unexpected that the brand promotion manager of the leading brand would seek as much exclusivity for the brand's trade identity as the law permits. Moreover, even had the same testimony been given by a wholly independent marketing specialist, it would not have been persuasive because the entire interrogation of Annett in this part of his testimony was flagrantly leading, and concerned subject matter on which the witness was unqualified to render an opinion. [FN5]
(vi) The Similarity of the Marks in Their Entireties
We disagree with opposer's conclusion that the marks are similar when considered in their entireties. The caveat that when considering likelihood of confusion, the involved marks must be considered in their entireties, does not preclude us from evaluating whether one feature of a mark may be more significant than another, as perceived by purchasers or prospective purchasers, in distinguishing source. E.g., Giant Food, Inc. v. Nation's Food Service, Inc., 710 F.2d 1565, 218 USPQ 198 (Fed. Cir. 1983). Thus, in the case before us, since the words CUISINE and LIVING are markedly different in sound and appearance, it is significant in evaluating the likelihood of confusion to take into account that the only common feature of the two marks, i.e., the word LEAN, is, at least, highly suggestive of both parties' goods. [FN6] In fact, opposer's own advertising and promotional literature, introduced as evidence herein, demonstrates that the significance of the word 'lean' in relation to its line of food products is that they are expressly designed to be sufficiently low in calories, especially those calories derived from fat, to help one lose weight. [FN7]
*4 We do not suggest that this aspect of opposer's mark detracts from the strength and distinctiveness of the entire mark, acquired as a result of the extensive sales and advertising of LEAN CUISINE products. See, e.g., Jiffy, Inc. v. Jordan Industries, Inc., 481 F.2d 1323, 179 USPQ 170 (CCPA 1973); Specialty Brands, supra, 223 USPQ at 1284. Nevertheless, the primary significance of 'lean' in relation to the goods emphasizes the principle that the likelihood of confusion issue here (as in Specialty Brands, id, at 1283) turns on whether the marks are confusingly similar in their overall commercial impressions rather than the identity of the LEAN (or SPICE) portion. See also, EZ Loader Boat Trailers, Inc. v. Cox Trailer's, Inc., 706 F.2d 1213, 217 USPQ 986 (Fed. Cir. 1983) [Significance of the term 'loader' in relation to the parties' goods, boat trailers, relied upon in holding that the contemporaneous use of EZ LOADER and SUPER LOADER is not likely to cause confusion.]
Perhaps anticipating this possible conclusion, opposer has placed considerable stress in its brief, as well as at oral argument, on the thesis that LEAN LIVING and LEAN CUISINE suggest the same imagery. In its brief, 12, this imagery is described by opposer as that of 'controlled-calorie good nutrition foods.' As evidence to support this conclusion, our attention has been directed to applicant's response to interrogatory 21, stating that LEAN LIVING was selected as its mark 'to describe a way of life related to healthful eating and exercise,' and to opposer's extensive promotion of LEAN CUISINE as a trademark identifying a line of food products having as significant qualities a controlled number of calories and good nutrition.
We have no quarrel with the contention that both the LEAN LIVING and LEAN CUISINE brands generally evoke imagery associated with foods that are healthful because of their limited caloric, low-fat content. However, the same could be said of most of the other competitive brands--LIGHT 'N ELEGANT; DINING LIGHT; MRS. PAUL'S LIGHT 'N NATURAL; CLASSIC LITE--, which opposer contends, brief, 15, are plainly distinguishable from each other, and from LEAN CUISINE. Thus, on opposer's premise, all of these marks would be confusingly similar in that they all generally evoke imagery associated with healthful, limited-calorie foods, a position totally inconsistent with its view that the other brands are distinguishable. In fact, the common use of LIGHT (LITE) in these four competitive trademarks is the principal element responsible for that general imagery, just as LEAN is in the case before us, a circumstance which, if relevant at all, would favor applicant's case, not opposer's.
During oral argument, opposer took a somewhat different approach, arguing that both marks conveyed the same commercial impression because both expressed a 'way of life' rather than, merely, dietary food. As to this, there is no doubt, as stated in applicant's interrogatory response, that this is an important aspect of the imagery which LEAN LIVING suggests and this is also corroborated by the copy on the bottom panel of the specimen LEAN LIVING package. On the other hand, the plain impression of LEAN CUISINE, viewed in its entirety, is that of prepared foods which are dietary but at the same time tasteful. The latter aspect of the brand's commercial impression is derived from the general understanding of most Americans that foods prepared by French chefs or according to recipes and cooking methods having their origin in France are tasteful, which imagery is conjured up in opposer's mark by the word CUISINE. This imagery is characteristic of almost all of opposer's print advertising slogans and copy, [FN8] and the same theme is consistently featured in its television commercials. [FN9] Also, at least 5 of the LEAN CUISINE entrees are identified by French sounding names, e.g. chicken a l'orange. More significantly, except for the obvious fact that one's dietary practices (whether healthful or not) are a part of every person's life, we find nothing in opposer's advertising to substantiate its claim that LEAN CUISINE conveys the commercial impression of a 'way of life.' In view of the above, we conclude that the marks do not have confusingly similar commercial impressions.
*5 Concerning the above point, the case before us is strikingly similar to one involving opposer's principal competitor in this field, Weight Watchers International, Inc. v. I. Rokeach & Sons, Inc., supra. In that case, we held that WEIGHT WATCHERS and WEIGHT WISE were not confusingly similar, rejecting the opposer's argument, similar to the one raised here, that the marks conveyed confusingly similar commercial impressions. In particular, as to that point, we said:
As indicated above, WEIGHT WATCHERS connotes concern about one's weight. WEIGHT WISE connotes wisdom. Wisdom and concern may both cause furrows in one's brow but they are otherwise very different concepts.
It seems to us, the same conceptual difference exists between 'living' and 'cuisine' in the case before us, and that conceptual difference is no less important when those words are linked to the common term 'lean.'
Finally, as to this factor, we find no merit in opposer's argument that, because the packages submitted as specimens in the application (also presented as exhibits in the Annett deposition) allegedly are strikingly similar to opposer's LEAN CUISINE packages in their overall appearance, this evidence supports opposer's contention that the word mark LEAN LIVING projects a confusingly similar commercial impression. The primary basis for opposer's argument is the Specialty Brands decision, 223 USPQ at 1284. In that case, one of the applicant's early packages for its SPICE VALLEY spices incorporated a representation of a sailing vessel which the court held negated its argument that SPICE VALLEY had a country valley rather than a seafaring image like that which had long been associated with the SPICE ISLandS trademark. Because of the inconsistency, the court treated the seafaring package dress used on applicant's SPICE VALLEY package as evidence that the commercial impressions conveyed by the two marks were confusingly similar. Based on that precedent, opposer urges us to treat the alleged similarities in package dress here, discussed supra, note 5, as evidence that the marks LEAN LIVING and LEAN CUISINE have confusingly similar commercial impressions. We do not agree that the Specialty Brands conclusion is apposite here.
As we have already indicated, the question whether the LEAN LIVING package dress is sufficiently similar in overall design, layout and color to the LEAN CUISINE packaging to support an unfair competition claim is both irrelevant to this proceeding and beyond this Board's jurisdiction. Beyond that, we find no particular feature of the LEAN LIVING specimen packages which demonstrates imagery confusingly similar to that of LEAN CUISINE in the same way that the sailing vessel did in Specialty Brands. Indeed, other than applicant's house mark HEALTH VALLEY, the primary elements of these packages (a descriptive name of each entree, an indication of caloric content as 'under 385 calories', and an attractive picture of a serving of the product) are features which characterize all five of the other competitive products. Other than the fact, also common to all of the competitive packages, that the depiction of a serving of the product is attractive, suggesting tasteful foods, we find nothing which demonstrates confusingly similar imagery akin to the sailing vessel in Specialty Brands. Obviously, every trader is free to display an attractive picture of his product; hence, unless the picture infringes a valid copyright, the similarity of the pictures here is not actionable. To hold otherwise would extend the Specialty Brands decision to an extent which would be plainly inconsistent with other precedents of the same court holding that similarities of package dress can only be considered in registrability contests to the extent that they are part of the mark sought to be registered. [FN10].
vii The Fame of Opposer's Mark
*6 As we have found, opposer's LEAN CUISINE trademark is famous and has strong purchaser acceptance in the field of calorie-controlled single-dish dinners. We also agree with the concept that the fame of a trademark may increase the likelihood of confusion and that this factor favors opposer's case. Specialty Brands, supra, 223 USPQ at 1284; See also, Miles Laboratories, Inc. v. Naturally Vitamin Supplements, Inc., Opposition Nos. 65,820 and 65,085, slip opinion, 24-26 ---- USPQ ---- (TTAB, December 12, 1986).
(viii) The Number and Nature of Similar Marks on Similar Goods
There is no evidence of third-party use of marks comprising either component of opposer's mark.
(ix) Descriptive Usage
There is no evidence of descriptive use of the word 'lean' or 'cuisine,' other than the uses of 'lean' in opposer's own materials which we have noted, supra, note 7. Notwithstanding these uses, and our previous holdings concerning 'lean' in relation to low-calorie foods, supra, note 6, we nevertheless agree with opposer that, even were we to conclude that 'lean' by itself was merely descriptive of the goods herein, that fact does not entitle applicant to adopt a mark which is confusingly similar to LEAN CUISINE, especially in view of that mark's acquired renown. Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315 (1938).
In evaluating all of the above factors contributing to the likelihood or nonlikelihood of confusion, it is generally necessary to determine the case based on our collective opinion concerning the ultimate issue in the light of our conclusions as to all relevant factors. Thus, in the case before us, while the fame of opposer's mark and the identity of the parties' goods and their channels of trade tend to favor opposer's case, we are not persuaded that these circumstances are sufficient to refuse registration to applicant in view of our finding that LEAN CUISINE and LEAN LIVING, applied to the goods herein are not confusingly similar in sound, appearance or commercial impression.
Decision: The opposition is dismissed.
D. B. Allen
G. D. Krugman
R. F. Cissel
Members, Trademark Trial and Appeal Board
FN1. Application Serial No. 434,772, filed July 15, 1983.
FN3. Other competitive brands include LIGHT 'N ELEGANT, DINING LIGHT, MRS. PAUL'S LIGHT and NATURAL, and CLASSIC LITE.
FN4. We agree with opposer that the specimen packages may be referred to for the purpose of aiding us to understand the identification of applicant's goods. Falk Corp. v. Toro Mfg. Co., 493 F.2d 1372, 181 USPQ 462 (CCPA 1974).
FN5. Even were we to excuse these obvious inadequacies of the testimony, Annett's responses to the questions were subject to important qualifications and obviously influenced by facts which are irrelevant to the issue before us. The major qualification is that the question whether confusion is likely was put to Annett in the context of a comparison of the brand with LEAN LIVING and four other competitive brands, i.e. the ones mentioned, supra, at note 3. Specifically, counsel for opposer placed sample packages of these other brands and of LEAN LIVING and LEAN CUISINE, in front of the witness, who was then asked to give his opinion as to 'which two or more would be most likely to be confused by consumers?' (Deposition transcript 82, emphasis ours) Since this question ruled out the possibility that no two or more of the brands are 'likely to be confused by consumers, the form of the question rendered the opinion testimony worthless for our purposes. The only issue before us is the likelihood of confusion between LEAN CUISINE and LEAN LIVING. Thus, whether the trademarks of other competitors are, by comparison more different from LEAN CUISINE than LEAN LIVING is irrelevant.
It is also clear from Annett's subsequent testimony (deposition transcript, 84-85) that this witness was materially influenced in his opinion by the design, layout, and color of the specimen LEAN LIVING package. Since these features of applicant's package presentation are not part of the mark sought to be registered, the overall similarity of the packages, i.e. the collocation of all features, including the LEAN CUISINE brand name, is irrelevant to the issue before us. E.g., Wells Fargo & Co. v. Stagecoach Properties, Inc., 685 F.2d 302, 216 USPQ 480 (9th Cir. 1982); 2 T.J. McCarthy, TRADEMARKS and UNFAIR COMPETITION § 32:31, at notes 8, 9 and 10 (2d ed. 1984). While an alleged confusingly similar trade dress might give rise to a claim of unfair competition, such a claim is beyond the jurisdiction of this Board. E.g., Electronic Water Conditioners, Inc. v. Turbomag Corp., 221 USPQ 162, 163-4 (TTAB 1984), and cases cited therein. Accordingly, since it is impossible for us to determine how much Annett's testimony was influenced by these irrelevant facts, and also in view of the other material deficiencies discussed above, we give no weight to this evidence.
FN6. Indeed, this panel of the Board has previously held the word 'lean' merely descriptive of low-calorie foods. In re Lean Line, Inc., 229 USPQ 781 (TTAB 1986). Our reasoning in that case, based on a dictionary definition of the term, was that 'prospective purchasers would deduce from the term LEAN that the fat had been removed or otherwise reduced in applicant's goods.' See also, In re Nash-Finch Co., 160 USPQ 22 (TTAB 1968) [TENDER LEAN held merely descriptive of fresh pork.] We are unable to distinguish the primary meaning of 'lean' in those cases from its primary meaning in relation to opposer's goods here.
FN7. For example, in a pamphlet titled 'On the Way to Being Lean,' distributed by opposer (Exhibit 37), there is described a '14-Day Lean Look Plan' featuring LEAN CUISINE entrees as an integral plan of menus suggested to persons desiring to follow a calorie-controlled, low-fat diet. See also, Exhibits 14, 30, 34 and 36, in which the word 'lean' is used in materials promoting LEAN CUISINE products to describe the slimness result of a dietary regime based in significant part on the dieter's regular consumption of LEAN CUISINE entrees.
FN8. For example: 'New Lean Cuisine is the kind of food you can enjoy even if on a diet . . . . For starters, it tastes good.' (Exhibit 14.) 'Count your pleasures. The calories, of course. Always under 300. But the biggest pleasure of Lean Cuisine is the taste. So delicious, so delightful, you'd think it was fattening.' (Exhibit 25.) 'Never before have so few calories tasted so good.' (Exhibit 23.)
FN9. See, e.g., exhibits 30-34, story boards of commercials wherein the good taste characteristics of LEAN CUISINE entrees are dominant themes.
FN10. See, authorities cited, supra, note 5. Although a flagrantly similar package dress may corroborate other evidence that the mark of an applicant was adopted in bad faith, there is no other evidence bearing on the issue of intent, or even of knowledge, in the case before us. Compare, Broadway Catering Corp. v. Carla Inc., 215 USPQ 462 (TTAB 1982).