In re Gina Davia

85497617 · Decided 2014-05-27

What happened

Section 2(d) refusal affirmed for CHANTICO design mark (stylized snake in Aztec art style with CHANTICO and PEPPER SAUCE text) for pepper sauce vs. CHANTICO (standard characters) for agave sweetener. Factor 1 (marks): CHANTICO dominates applicant’s composite mark — appears in large stylized letters at center, covers snake design at two points; consumers recall words over designs; identical sound and meaning (Aztec goddess); standard character mark entitled to protection in any font style. Factor 5 (fame): CHANTICO arbitrary and inherently strong but no evidence of fame — neutral. Factor 6 (third-party marks): Neutral — no third-party evidence. Factor 2 (goods): Both condiments/flavor additives not consumed alone; used together in same recipes (9 recipe examples); sold in same grocery stores (Giant, Safeway, Wegmans); two third-party registrations covering both sweeteners and pepper sauces; registrant’s website cross-promotes. SUNSHINE third-party registrations covering diverse foods rejected as shedding no light on pepper sauce/agave sweetener relatedness. Factor 3 (channels): Unrestricted — presumed same channels; same online grocery stores; same consumer classes. Factor 4 (conditions): Both inexpensive everyday items ($4-$10); ordinary care; least sophisticated purchaser standard applies. All factors weigh in favor of confusion.