## Facts

- National Pork Board and National Pork Producers Council owned registrations for THE OTHER WHITE MEAT and used the slogan for decades to promote pork through nationwide advertising and related promotional goods and services.
- The opposers presented evidence of extensive advertising expenditures, widespread media exposure, and survey results showing high public recognition of THE OTHER WHITE MEAT.
- Supreme Lobster and Seafood Company, a wholesale seafood distributor, filed an intent-to-use application to register THE OTHER RED MEAT for “fresh and frozen salmon.”
- The applicant’s trademark search disclosed THE OTHER WHITE MEAT before filing, placing the applicant on notice of the opposers’ slogan.
- The opposers filed a TTAB opposition alleging (1) likelihood of confusion under Lanham Act § 2(d) and (2) dilution under Lanham Act § 43(c), as amended by the Trademark Dilution Revision Act of 2006 (TDRA).

## Issues

1. Whether THE OTHER WHITE MEAT was famous and distinctive for dilution purposes under Lanham Act § 43(c) before the applicant’s filing date.
2. Whether registration of THE OTHER RED MEAT for salmon was likely to cause dilution by blurring of THE OTHER WHITE MEAT under the TDRA.

## Decision

- The TTAB sustained the opposition and refused registration of THE OTHER RED MEAT.
- The TTAB found THE OTHER WHITE MEAT to be a famous, highly distinctive advertising slogan entitled to dilution protection under § 43(c).
- Applying the TDRA blurring factors, the TTAB held that THE OTHER RED MEAT was likely to dilute THE OTHER WHITE MEAT by blurring.
- Because it found dilution, the TTAB did not reach the likelihood-of-confusion claim under § 2(d).

## Legal Principles

- Under the TDRA, the owner of a famous, distinctive mark may prevent use or registration of a junior mark that is likely to cause dilution by blurring, regardless of confusion, competition, or actual economic injury.
- Dilution by blurring is shown by a likely association arising from similarity between the marks that impairs the famous mark’s distinctiveness.
- In assessing likelihood of blurring, relevant considerations include the degree of similarity, the famous mark’s recognition and distinctiveness, the extent of substantially exclusive use, the junior user’s intent to create an association, and evidence of actual association (including reliable survey evidence).
- Near identity in structure and meaning between a proposed mark and a famous slogan can support a finding of likely blurring, even where the parties’ goods differ.

## Conclusion

The TTAB held that THE OTHER WHITE MEAT had achieved fame and strong source significance as a consumer slogan and that THE OTHER RED MEAT for salmon would likely blur that distinctiveness through strong similarity and resulting association, warranting refusal of registration under the TDRA.


Nat’l Pork Bd. v. Supreme Lobster & Seafood Co., 96 U.S.P.Q.2d 1479 (T.T.A.B. 2010)