Zucrum Foods, LLC v. Marquez Brothers, International, Inc.

Filing 37

ORDER by Judge Hamilton denying 33 Motion to augment record; denying 24 Motion for Summary Judgment (pjhlc1, COURT STAFF) (Filed on 5/27/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ZUCRUM FOODS, LLC,
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Petitioner,

No. C 10-0123 PJH

v.

ORDER DENYING MOTION FOR
SUMMARY JUDGMENT AND
MOTION TO AUGMENT THE
RECORD

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For the Northern District of California

United States District Court

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MARQUEZ BROTHERS,
INTERNATIONAL, INC.,

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Respondent.
_____________________________/

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This is a case seeking review of a decision by the Trademark Trial and Appeal

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Board (“TTAB”) of the U.S. Patent and Trademark Office (“USPTO”), pursuant to

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§ 21(b) of the Lanham Act, 15 U.S.C. § 1071(b).

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The motion of respondent Marquez Brothers International, Inc. (“Marquez”) for

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summary judgment came on for hearing before this court on March 30, 2011. On May 2,

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2011, petitioner Zucrum Foods LLC (“Zucrum”) filed a motion for leave to augment the

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record post-hearing, which Marquez opposes. Having read the parties’ papers and

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carefully considered their arguments and the relevant legal authority, the court hereby

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DENIES the motions.

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BACKGROUND

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Zucrum, which is located in Arizona, is the United States distribution arm of Grupo

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Zucarmex, Mexico’s second largest private sugar producer and distributor. Zucrum owns

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Registration No. 2,476,161 for the mark “Azúcar Morena” for “unrefined sugar; brown

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sugar; molasses.” The “azúcar morena” mark has been used since August 1998 by

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Zucrum and its predecessors, with respect to its “unrefined sugar” and its “melaza” or

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molasses. Zucrum also uses the mark on its powdered sugar and picante sugar (sugar

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with ground chile).

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Marquez is a California corporation that is engaged in the distribution and sale in the

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United States of a wide variety of Mexican-style food products, many of which are imported

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from Mexico. Among those products from Mexico is unrefined brown sugar, which it

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distributes in packages labeled “azúcar morena.” The Mexican company from which

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Marquez purchases unrefined brown sugar received a cease-and-desist letter from Zucrum

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in September 2007, asserting ownership of the mark “azúcar morena” for use on or in
connection with brown sugar, citing Registration No. 2,476,161, and subsequently indicated

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For the Northern District of California

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that it was unwilling to continue selling unrefined brown sugar to Marquez, on account of

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that letter. Zucrum also sent Marquez a cease-and-desist letter, in April 2008, asserting

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ownership of the mark “azúcar morena.”

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In October 2007, Marquez instituted a proceeding in the USPTO, seeking

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cancellation of Zucrum’s registration for “azúcar morena” on the basis that the phrase is

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generic for brown sugar and unrefined sugar. Marquez filed a second amended petition in

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April 2009. After full briefing on cross-motions for summary judgment, the TTAB issued a

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written decision on December 11, 2009, finding “azúcar morena” to be generic, and

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ordering cancellation of Zucrum’s registration.

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The TTAB began by finding that the genus of goods at issue were those listed in

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Zucrum’s identification of goods – “unrefined sugar; brown sugar; molasses.” Zucrum

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argued that the sugar sold under its registered mark is azúcar estándar, an unrefined

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sugar, which according to Zucrum is not brown sugar as commonly understood in the

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United States. The TTAB pointed out, however, that registrability of a mark must be

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decided on the basis of the identification of goods set forth in the registration, regardless of

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what the record may reveal as to the particular nature of a respondent's goods. In other

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words, Zucrum’s goods must be presumed to include all types of unrefined sugar, brown

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sugar, and molasses.
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The TTAB then considered whether “azúcar morena” is understood by the relevant

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public primarily to refer to the genus of goods at issue. The TTAB first ruled that, since

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Spanish is a modern and ubiquitous language, the term would be translated into English by

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the ordinary American purchaser who is knowledgeable in both English and Spanish. The

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TTAB referred specifically to Marquez’ numerous examples of the generic use of “azúcar

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morena” in connection with brown sugar, and found that Marquez had made a prima facie

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showing that there was no genuine issue of material fact that the Spanish term “azúcar

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morena” directly translates to the English term “brown sugar,” one of the products identified

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in Zucrum’s involved registration.
Zucrum contended that “azúcar morena” is not generic because “azúcar morena” or

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For the Northern District of California

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“morena” standing alone can, in another context, refer to a dark-skinned or brunette

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Latina.1 However, the TTAB found this argument and the supporting evidence insufficient

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to create a genuine issue of material fact. The TTAB was also not persuaded by Zucrum’s

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argument that its mark is not generic because there are other generic terms that translate

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to “brown sugar.” The TTAB stated, “Even if we assume, as respondent argues, that the

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goods at issue could also be identified as ‘azúcar terciado,’ ‘azúcar rubio,’ ‘azúcar negro,’

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and other terms, a product may have more than one generic name, none of which is

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registrable.”

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On January 11, 2009, Zucrum filed the present action requesting review of the

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TTAB’s decision pursuant to 15 U.S.C. § 1071. On March 12, 2010, Marquez filed an

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answer and counterclaim, seeking a declaratory judgment of non-infringement under the

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Lanham Act; cancellation based on genericness; cancellation based on fraud (two counts);

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intentional interference with prospective economic advantage; violation of California

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Business & Professions Code § 17200; and common law unfair competition.

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On May 20, 2010, Zucrum filed a first amended complaint, seeking review of the
TTAB decision, and also alleging claims of trademark infringement, unfair competition, and

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The registration included a statement that “[t]he English translation of ‘Azúcar
MORENA’ is ‘sugar beautiful dark complexioned brunette Latin girl.’”
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false designation and description under the Lanham Act; state law claims of violation of

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Business & Professions Code § 17200 and common law injury to business reputation; and

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“summary judgment improperly granted by TTAB.”
Marquez now seeks summary judgment, on the question whether the TTAB’s finding

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that “azúcar morena” is generic, and cancelling Zucrum’s registration, was supported by

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substantial evidence and should be affirmed. On the same basis, Marquez seeks dismissal

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of all claims asserted against it by Zucrum in this action.

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On April 5, 2011, a few days after hearing on Marquez’ motion, Zucrum filed a

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request with the USPTO to delete “brown sugar” from its registration, to “correct” an “error”
pursuant to 15 U.S.C. § 1057. Zucrum asserted that its inclusion of “brown sugar” in its

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For the Northern District of California

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registration for more than nine years was an oversight and a misunderstanding. The

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USPTO granted preliminary approval of the request, but rescinded that approval on April

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18, 2011 after reviewing the file and determining that the present action for review of the

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TTAB decision was ongoing. Nevertheless, on May 6, 2011, Zucrum filed a request to

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augment the record in this case to include the USPTO’s issuance of preliminary approval of

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the requested change.
DISCUSSION

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A.

Legal Standards

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1.

Motions for summary judgment

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Summary judgment is appropriate when there is no genuine issue as to material

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facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

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56(c)(2). Where the moving party will have the burden of proof at trial, it must affirmatively

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demonstrate that no reasonable trier of fact could find other than for the moving party.

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Soremekun v.Thrifty Payless, Inc., 509 F.3d 978, 994 (9th Cir. 2007). On an issue where

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the nonmoving party will bear the burden of proof at trial, the moving party can prevail

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merely by pointing out to the district court that there is an absence of evidence to support

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the nonmoving party’s case. Celotex, 477 U.S. at 324-25.

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If the moving party meets its initial burden, the opposing party must then set forth
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specific facts showing that there is some genuine issue for trial in order to defeat the

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motion. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. The court may not weigh

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the evidence, and is required to view the evidence in the light most favorable to the

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nonmoving party. Id.; United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir. 2003).

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2.

Review of TTAB decisions

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Under the Lanham Act, a party that loses before the TTAB may appeal the decision

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to the United States Court of Appeals for the Federal Circuit on the closed record of the

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TTAB proceedings. See 15 U.S.C. § 1071(a)(4). In the alternative, the party has the

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option of presenting additional evidence or raising additional claims in the United States

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For the Northern District of California

United States District Court

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District Court in any district where venue is proper. See id. § 1071(b)(1).
In Dickinson v. Zurko, 527 U.S. 150 (1999), the U.S. Supreme Court held that the

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appropriate standard of review of findings of fact made by the PTO is not the stricter

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“clearly erroneous” standard, but the more deferential standard of the Administrative

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Procedures Act, 5 U.S.C. § 706. Id., 527 U.S. at 159-65. Although the Court did not

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specify whether the appropriate APA standard was “substantial evidence” or “arbitrary and

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capricious,” the Federal Circuit subsequently determined that the “substantial evidence”

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standard applies to reviews of TTAB decisions. See On-Line Careline, Inc. v. America

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Online, Inc., 229 F.3d 1080, 1085 (Fed. Cir. 2000).

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Thus, in an appeal to the Federal Circuit, the court reviews the TTAB’s legal

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conclusions de novo, and reviews its factual findings for substantial evidence. Aycock

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Eng’ng, Inc. v. Airflite, Inc., 560 F.3d 1350, 1355 (Fed. Cir. 2009). In an appeal presented

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in a civil proceeding in the district court, the district court is an appellate reviewer of facts

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found by the TTAB and is also a fact-finder based on new evidence introduced to the court.

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See 3 J. McCarthy, McCarthy on Trademarks and Unfair Competition, § 21:20, at 21-26

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(4th ed., updated 2011). Although the district court's review of the TTAB's decision is

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considered de novo when the parties present new evidence and assert additional claims,

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the district court also must afford deference to any factual findings made by the TTAB. See

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id. § 21:21.
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Thus, while new evidence and new issues may be introduced in the district court, an

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appeal of a decision by the TTAB is a unique procedure because, unlike a true de novo

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proceeding, findings of fact made by the TTAB are given great weight and are not upset

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unless supported by substantial evidence. Id.; see also Zurko, 527 U.S. at 162 (1999)

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(substantial evidence requires reviewing court to ask whether reasonable person might find

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that evidentiary record supports agency’s conclusion); On-Line Careline, 229 F.3d at 1085

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(applying Zurko to findings of fact made by the TTAB); Aycock, 560 F.3d at 1355.

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“Substantial evidence is more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Consolidated
Edison Co. of New York v. NLRB, 305 U.S. 197, 229 (1938). The possibility that

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inconsistent conclusions may be drawn from the same record does not render the TTAB’s

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finding unsupported by substantial evidence. In re Gartside, 203 F.3d 1305, 1312 (Fed.

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Cir. 2000).

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B.

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Marquez’ Motion
Marquez seeks an order affirming the TTAB’s finding that there is no genuine issue

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of material fact that the Spanish term “azúcar morena” directly translates to the English

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term “brown sugar,” one of the products identified in Zucrum’s involved registration; and

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affirming the cancellation of Zucrum’s registration No. 2,476,161 for “azúcar morena,”

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reciting the goods “unrefined sugar; brown sugar; molasses.”

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General standards

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Marks are normally classified in one of five categories: generic, descriptive,

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suggestive, arbitrary, or fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768

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(1992). Suggestive, arbitrary, and fanciful marks are inherently distinctive and thereby

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automatically are entitled to federal trademark protection because “their intrinsic nature

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serves to identify a particular source of a product.” Id. A descriptive mark is not

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automatically entitled to trademark protection, but may become protectable if the mark has

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acquired distinctiveness through secondary meaning. Zobmondo Entm’t., LLC v. Falls

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Media, LLC, 602 F.3d 1108, 1113 (9th Cir. 2010) (citing 15 U.S.C. § 1052(f)).
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Generic marks have been described as marks which “refe[r] to the genus of which

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the particular product is a species.” Two Pesos, Inc., 505 U.S. at 768 (quotation omitted);

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see also Filipino Yellow Pages, Inc. v. Asian Journal Publ'ns, Inc., 198 F.3d 1143, 1147

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(9th Cir. 1999) (“[a] generic term is one that refers, or has come to be understood and

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referring, to the genus of which the particular product or service is a species” and such a

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term “cannot become a trademark under any circumstances”) (citation and quotation

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omitted). Generic marks are not eligible for trademark protection. Zobmondo, 602 F.3d at

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1113.

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A mark is generic if it “primarily denotes a product, not the product's producer.”
Anti-Monopoly, Inc. v. Gen. Mills Fun Group, Inc., 611 F.2d 296, 301 (9th Cir. 1979). A

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descriptive mark, on the other hand, describes the qualities or characteristics of a product.

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See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir.

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2005). Put another way, a generic mark “refers to the genus of which the particular product

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is a species,” while a descriptive term “directly describe[s] the quality or features of the

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product.“ One Industries, LLC v. Jim O’Neal Distributing, Inc., 578 F.3d 1154, 1164 (9th

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Cir. 2009), cert. denied, 130 S.Ct. 1739 (2010).

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Whether a mark is generic under trademark law is a question of fact. Yellow Cab

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Co. of Sacramento v. Yellow Cab of Elk Grove, Inc., 419 F.3d 925, 929 (9th Cir. 2005). To

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determine whether a term is generic, the court looks to “whether consumers understand the

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word to refer only to a particular producer’s goods or whether the customer understands

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the word to refer to the goods themselves.” Id.; see also Brookfield Commc’ns, Inc. v.

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West Coast Entm’t Corp., 174 F.3d 1036, 1058 n.19 (9th Cir. 1999) (“Generic terms are

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those used by the public to refer generally to the product rather than a particular brand of

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the product.”).

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“If buyers understand the term as being identified with a particular producer's goods

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or services, it is not generic. But if the word is identified with all such goods or services,

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regardless of their suppliers, it is generic.” Yellow Cab, 419 F.3d at 929 (quotations and

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internal citation omitted). Courts refer to this as the “who-are-you/ what-are-you” test. Id.
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“A mark answers the buyer's questions ‘Who are you?’ ‘Where do you come from?’ ‘Who

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vouches for you?’ But the generic name of the product answers the question ‘What are

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you?’ ” Id. (quotation omitted).

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The doctrine of foreign equivalents holds generally that a word commonly used in a

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language other than English as the generic name of a product cannot be imported into the

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United States and transformed into a valid trademark. McCarthy, § 12:41, at 12-146.

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Under the doctrine of foreign equivalents, foreign words used as a mark are translated into

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English, and then tested for descriptiveness, genericness, and similarity of meaning to

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determine confusing similarity with an English word. Id. § 11:34.
The test is whether, to those American buyers familiar with the foreign language, the

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word would have a descriptive connotation. Id.; see also In re Spirits Int’l N.V., 563 F.3d

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1347, 1351 (Fed. Cir. 2009). As McCarthy notes, however, the act of translation can itself

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be an imprecise task, as foreign words sometimes have no exact equivalent in English;

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therefore, courts may rely on the “primary and common translation” in determining English

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equivalency. 3 McCarthy § 23:38, at 23-85.

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The purpose of the doctrine of foreign equivalents is to protect multilingual

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Americans. Id., 12-147. In addition, “because U.S. companies would be hamstrung in

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international trade if foreign countries granted trademark protection to generic English

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words, the United States reciprocates and refuses trademark protection to generic foreign

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words.” Enrique Bernat F., S.A. v. Guadalajara, Inc., 210 F.3d 439, 443 (5th Cir. 2000).

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The doctrine appears to be well-established in registration proceedings in the

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Federal Circuit and the TTAB, and a number of Circuits in addition to the Federal Circuit

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have applied it in the context of trademark infringement actions. See Sutter Home Winery,

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Inc. v. Madrona Vineyards, L.P., 2005 WL 701599 at *6 (N.D. Cal., March 23, 2005) (and

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cases cited therein). Nevertheless, it is not an absolute rule and should be viewed merely

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as a guideline.

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“The doctrine should be applied only when it is likely that the ordinary American
purchaser would stop and translate the word into its English equivalent.” Palm Bay Imps.,
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Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1377 (Fed. Cir.

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2005) (citations and quotations omitted). The “ordinary American purchaser” is not limited

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to only those consumers unfamiliar with non-English languages; rather, the term includes

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all American purchasers, including those proficient in a non-English language who would

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ordinarily be expected to translate words into English. In re Spirits Int’l, 563 F.3d at 1352.

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Finally, the mark holder “bears the ultimate burden of proof in a trademark-

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infringement action that the trademark is valid and protectable.” Zobmondo, 602 F.3d at

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1113. Federal registration of the mark constitutes “‘prima facie evidence’ of the mark's

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validity and entitles the plaintiff to a ‘strong presumption’ that the mark is a protectable

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mark,” and that it is not generic. Id. (citations and quotations omitted).
If the mark has been properly registered, the burden shifts to the alleged infringer to

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show by a preponderance of the evidence that the mark is not protectable. Zobmondo, 602

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F.3d at 1114. The alleged infringer may meet this burden by demonstrating “through law,

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undisputed facts, or a combination thereof that the mark is invalid.” Id. (quotation omitted).

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However, the presumption of validity for a registered mark is strong, and the alleged

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infringer bears a heavy burden to overcome it at the summary judgment stage. Id.

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2.

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Marquez asserts that the TTAB’s ruling should be affirmed. Marquez argues that

The parties’ arguments

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“azúcar morena” is brown sugar and unrefined sugar, and that the registration is therefore

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subject to cancellation because the mark is generic. Marquez contends that the evidence

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establishes beyond a reasonable doubt that for Spanish-speaking consumers, “azúcar

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morena” exactly describes and identifies the type of sugar sold by the parties and does not

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identify sugar from one single source.

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Marquez cites to various Spanish-language documents showing “azúcar morena”

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used to mean “brown sugar,” and also to dictionary definitions of “brown sugar.” Marquez

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contends that “brown sugar” is the broad, generic name for a variety of sugars that range in

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color from light tan to dark brown, and that the differences in the color of these sugars lies,

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primarily, in how much molasses each contains; and that raw sugar, unrefined cane sugar,
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light brown sugar, dark brown sugar, golden yellow sugar, turbinado sugar, muscovado

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sugar, barbados sugar, and demerara sugar are all encompassed within the genus “brown

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sugar.”

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Marquez asserts that dictionary definitions establish the generic nature of the phrase

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“azúcar morena” (citing several Spanish-language dictionaries, and a number of on-line

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dictionaries and language translators). Marquez also notes that in its responses to

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Interrogatories, Zucrum explained that “morena” means the color brown, and that the word

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“azúcar” means sugar, and that the way Zucrum uses “azúcar morena” establishes the

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generic nature of the term. Marquez contends that Zucrum uses the phrase in a generic
form in its “ZULKA” brand to identify the type of sugar in the package, and in recipes on its

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webpage, and that Zucrum uses the word “estándar” (standard) and “morena” (brown)

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interchangeably with “azúcar” to refer to brown sugar. Marquez also notes that Zucrum

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frequently uses the term “azúcar morena” on its packaging without any indication that it is a

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trademark.

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Marquez asserts further that third-party usage – websites and online grocers, recipe

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books, competitors’ packaging, and internet articles about sugar generally, as well as

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statements by the Mexican Federal Law on Metrology and Standardization – establishes

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the generic nature of “azúcar morena.”

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Marquez contends that the TTAB was correct in finding that the genus of the goods

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at issue is determined by Zucrum’s chosen identification of goods in its involved registration

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(“brown sugar, unrefined sugar, molasses,” with no exclusion for “American brown sugar,”

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which Marquez claims is just another variety of “brown sugar”).

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In opposition, Zucrum asserts that the mark is not generic, and that “azúcar morena”

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is a different product than “brown sugar.” Zucrum cites to various Spanish-language

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documents and dictionaries in support of its position. In addition, Zucrum provides a

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declaration from Jorge de la Vega, its CEO and a native Spanish speaker (also fluent in

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English) regarding the meaning and use of the phrase “azúcar morena;” a declaration from

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a chemist employed by the Audubon Sugar Institute, who conducted a chemical analysis of
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various kinds of sugar; a declaration from a process engineer with experience in the sugar

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industry; and a declaration from an employee of a focus group company who conducted an

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informal survey of random Spanish-speaking individuals that he encountered in the vicinity

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of 16th and Mission Streets in San Francisco, regarding their understanding of the

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differences between “azúcar morena” and American brown sugar.

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Zucrum argues that its “Azúcar Morena” is a different product than “brown sugar,”

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because it is a free-flowing, tan (or pale yellow) unrefined sugar that has very little

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molasses, whereas “brown sugar” has a higher moisture content and a heavier

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consistency, and is not free-flowing. Zucrum also asserts that American-style brown sugar

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is virtually unknown in Mexico.
Zucrum agrees that a “generic” mark refers to the genus of which a particular

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product is a species, but contends that if a product is not within the genus, but rather is a

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different product, then it cannot be considered “generic.” Zucrum asserts that the evidence

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shows that “azúcar morena” is a different product than brown sugar, with different

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ingredients, flavor, color, and consumer uses, and it therefore does not fall into the generic

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genus “brown sugar.” Zucrum argues that the key issue is what the public thinks the word

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connotes, and asserts that its “consumer survey” shows that Spanish-speakers understand

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that there is a difference between the two. Zucrum also contends that dictionary definitions

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of “morena” do not resolve this case; that chemical analysis shows “azúcar morena” to be a

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different product than brown sugar; and that the “azúcar morena” trademark is used on

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molasses also, not just on sugar.

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Zucrum notes that “azúcar morena” is a trademark that it uses on molasses also,

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and claims that courts have held a mark to be non-generic where the holder uses it on

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several products, some of which fit the category of goods for which the mark is a generic

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term and some of which do not. Zucrum contends that because it produces both an off-

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white unrefined sugar that competes with regular white sugar (not brown sugar) and a

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molasses product, which is a natural by-product of sugar cane, and both products share

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the “azúcar morena” trademark, the mark cannot be considered generic as applied to any
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of its products.

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The court finds that the motion must be DENIED. As an initial matter, the parties

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have not made clear to the court which evidence was before the TTAB, and which evidence

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is being presented here for the first time. Moreover, the court’s review of the TTAB's

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findings of fact is necessarily limited because the TTAB did not make any clear findings of

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fact. Although it listed the categories of evidence provided by each side, it did not make

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specific findings supported by specific items of evidence. It simply concluded that there

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were no genuine disputed issues of fact. Accordingly, the court is unable to review the

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TTAB factual findings for substantial evidence, and rather than attempting to parse out the
evidence, the court reviews the entire matter de novo.

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The court finds that the presence of disputed issues of fact regarding the meaning

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and use of the phrase “azúcar morena” precludes the granting of summary judgment in

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Marquez’s favor. For example, disputed issues of fact remain as to whether the mark

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“azúcar morena” is generic, and as to how the relevant consuming public understands the

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term.

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CONCLUSION
In accordance with the foregoing, Marquez’s motion is DENIED. Zucrum’s motion

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for leave to augment the record to add a “Change in Registration” is also DENIED. There

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is no “Change to Registration” to be added, as the USPTO rescinded its preliminary

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approval of the request for the change submitted by Zucrum.

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By separate order, the court refers this matter for assignment to a Magistrate Judge
for a settlement conference.

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IT IS SO ORDERED.

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Dated: May 27, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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