In a non-precedential decision, the TTAB held that use of the word and stylized mark EL RANCHERO for “food products made of corn, namely, corn chips, tortillas and tostadas” were confusingly similar to the word and design marks RANCHERO for “cream” and “Mexican style sausages, namely chorizo and bolita.”[1]
The dispute over the “Ranchero” marks began back in 2018 when Cacique, LLC (“Cacique”) opposed El Ranchero Limited Partnership‘s (“El Ranchero”) EL RANCHERO applications by claiming that it had priority and that the marks were confusingly similar to its several RANCHERO word and design marks.
Cacique has produced and sold cheese, cream, and Mexican-style sausages under its RANCHERO marks since as early as 1978. However, El Ranchero has only been selling tortilla chips and tostados under its EL RANCHERO word and design marks since as early as 2008. A comparison of the parties’ design marks is below:
Source: Op. p. 1. Source: Notice of Opp’n, Ex. A
Source: Notice of Opp’n, Ex. A Source: Notice of Opp’n, Ex. A
In making its decision, the TTAB held that priority was a non-issue and proceeded to examine the likelihood of confusion between the marks by looking at the nature and similarity of the goods, customers and trade channels; strength of Cacique’s RANCHERO marks; similarity of the marks; sophistication of purchasers; and the nature and extent of any actual confusion.
Nature and similarity of the goods, customers and trade channels
Cacique introduced evidence to show that the goods offered under its marks and those offered under El Ranchero’s marks are often offered under the same mark and trade name. Both parties also introduced evidence that their products are sold and marketed at grocery and retail stores, online through their websites and social media, and through co-branding with beer companies. The TTAB presumed that relevant consumers for the goods offered under both marks are those who purchase Mexican and Central American foods. In light of these similarities, the TTAB held that it was likely consumers would expect both parties’ goods to be offered under the same mark.
Strength of Cacique’s marks
The TTAB held that Cacique’s RANCHERO marks were inherently distinctive due to their registration on the Principle Register with no claim of acquired distinctiveness and that evidence of third-party registrations for Ranchero- and Rancher-formative marks were not for the same goods and were not probative of the weakness of Cacique’s RANCHERO marks.
Similarity of the marks
In comparing the similarities between the two marks, the TTAB found that EL RANCHERO included the entirety of the RANCHERO mark and the addition of “EL” was insignificant. Additionally, the design of El Ranchero’s mark was not enough to distinguish it from Cacique’s marks, and the most important element, according to the TTAB, is the word element “RANCHERO” because that is what customers remember the most. Therefore, the TTAB held the marks are similar in appearance, sound, meaning, and commercial impression.
Sophistication of purchasers
The TTAB determined that there was no evidence that the parties’ food products require any sophistication when purchased. The goods are low-cost, ordinary goods and customers likely exercise less care in their purchase decision, making it more likely they may be confused as to the source of the goods.
Nature and extent of confusion
Both parties admitted that there is no evidence of actual confusion. However, the TTAB noted that there had not been an opportunity for confusion to occur because the parties’ goods had primarily been sold in different geographic areas and afforded this factor less weight.
On balance of the above factors, the TTAB held that the marks were confusingly similar and denied registration of El Ranchero’s EL RANCHERO marks.
[1] Cacique, LLC v. El Ranchero Ltd. P’ship, Opp’n No. 91241936, TTABVUE 84 (T.T.A.B., July 13, 2022).
