Sun Garden Packing Co. v. Da Napoli Foods LLC

Mailed: April 17, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
———
Trademark Trial and Appeal Board
———
Sun Garden Packing Co.
v.
Da Napoli Foods LLC
______
Opposition No. 91284802
______
Jorge Arciniega and Sarah Levitan Perry of Loeb & Loeb LLP for
Sun Garden Packing Co.
Nathan Camuti of Camuti Law Group APC for
Da Napoli Foods LLC.
———
Before Wellington, Lebow, and Brock,
Administrative Trademark Judges.
Opinion by Wellington, Administrative Trademark Judge:
Applicant Da Napoli Foods LLC filed an application seeking registration on the
Principal Register of the mark:1
1 Application Serial No. 90736709, filed May 26, 2021, claiming a bona fide intention to use
the mark in commerce, under Trademark Act Section 1(b), 15 U.S.C. § 1051(b). The
description of the mark is: “The mark consists of the words ‘DA NAPOLI’ superimposed over
a waving two-toned flag, both framed within a stylized four-point border.”
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Opposition No. 91284802
2
for “Pasta; Sauces; Packaged meals consisting primarily of pasta or rice,” in
International Class 30. The term NAPOLI is disclaimed and the application contains
the following statement: “The English translation of DA NAPOLI in the mark is
FROM NAPLES.”
Opposer, Sun Garden Packing Co., opposes registration of Applicant’s proposed
mark on the ground of likelihood of confusion under Trademark Act (“the Act”)
Section 2(d), 15 U.S.C. § 1052(d), based on Opposer’s ownership of Reg. No. 692526
for the mark:2
for “canned tomatoes, canned tomato puree, and canned tomato paste.”3 Opposer also
alleges prior use of the mark DI NAPOLI for the goods identified in its registration,
“but also for a range of tomato based sauces, including marinara sauce.”4
2 The Notice of Opposition also lists “Dilution by tarnishment” and “Dilution by blurring” as
grounds for opposition. 1 TTABVUE 1, 6. However, Opposer’s brief contains no arguments as
to these claims, so they are waived. See Monster Energy Co. v. Chun Hua Lo, No. 91225050,
2023 TTAB LEXIS 14, at *3-4 (deeming opposer’s lack of bona fide intent to use claim waived
because it was not argued in opposer’s brief).
The “TTABVUE” citations in this opinion refer to entries in the Board’s electronic docket.
The number preceding “TTABVUE” is the docket entry number and any numbers following
indicate the relevant page numbers within the docket entry. See, e.g., Turdin v. Trilobite,
Ltd., No. 94002505, 2014 TTAB LEXIS 17, at *6 n.6.
3 Not. of Opp. ¶ 1, 1 TTABVUE 3. Reg. No. 692526 issued on February 2, 1960; renewed.
4 Not. of Opp. ¶ 2, 1 TTABVUE 3.

Opposition No. 91284802
3
Applicant’s answer denies all salient allegations in the notice of opposition.5
Opposer introduced evidence and filed a trial brief.6 Applicant did not introduce
any evidence or file a trial brief; however, Applicant was required to do neither.
Opposer, as plaintiff in this proceeding, bears the burden of proof by a preponderance
of the evidence in establishing its likelihood of confusion claim. Bose Corp. v. QSC
Audio Prods., 293 F.3d 1367, 1370 (Fed. Cir. 2002).
I. The Record
The record includes the pleadings and, by rule, Applicant’s involved application
file. See Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1).
During its trial period, Opposer submitted the following:7
• (First) Notice of Reliance on two photographs as “proof of use and promotion”
of Opposer’s mark.8
• Testimonial Declaration of Robert Dinapoli, managing member of DiNapoli
Specialty Foods LP, “exclusive licensee of the DI NAPOLI mark,” with
exhibits.9
• (Second) Notice of Reliance on a printout from the Office’s TSDR electronic
database for Reg. No. 692526; photographs of Opposer’s goods; copy of
5 Applicant’s Answer, 4 TTABVUE.
6 Opposer’s Brief, 18 TTABVUE.
7 Opposer submitted a copy of “Opposer’s Pretrial Disclosures.” 14 TTABVUE. As the name
of the document suggests, this is merely Opposer’s identification of evidence it intends to
submit during trial. However, no actual evidentiary submissions were attached. We further
point out that parties “need not file, indeed should not file as a routine matter, its pretrial
disclosures with the Board.” Carl Karcher Enters. v. Carl’s Bar Delicatessen, Inc., No.
91188150, 2011 TTAB LEXIS 261, at *8.
8 15 TTABVUE.
9 16 TTABVUE.

Opposition No. 91284802
4
“advertising”; Facebook screenshots; and a “copy of Opposer’s listing of current
products sold under Opposer’s mark.”10
Opposer claims in its brief that it “offered” its “federal registration of its
trademark no. 692526 for the mark DI NAPOLI and Design in class 29,” but also
requests that “the Board to take judicial notice of the registration.”11
As noted above, Opposer submitted a screenshot for its pleaded registration, Reg.
No. 692526, from the Office’s TSDR database; however, the printout is incomplete
and does not comply with the Trademark Rules for properly introducing a pleaded
registration.12 Specifically, the screenshot is in truncated format with many of the
drop-down menu information windows closed, including the registration’s
identification of goods and ownership.13
Nevertheless, when considering the TSDR printout coupled with the testimony of
Opposer’s witness regarding ownership and the goods covered by the registration, we
find there is sufficient evidence to consider the pleaded registration to be of record.
Opposer’s witness testified that Opposer “was granted federal registration of the
mark DI NAPOLI and Design (Reg. No. 692526) in connection with ‘canned tomatoes,
10 17 TTABVUE. This Notice of Reliance also contains a copy of the Mr. Dinapoli’s testimonial
declaration previously submitted (at 16 TTABVUE).
11 18 TTABVUE 6-7.
12 There are several straightforward ways to properly introduce a pleaded registration into
the record. For example, a plaintiff, such as Opposer here, may easily obtain a copy or
printout of the registration from the USPTO electronic database records showing the current
status and title of the registration, and then simply submit or file this: (1) with the Notice of
Opposition, or (2) under a notice of reliance, or (3) with testimony identifying the registration.
See Trademark Rule 2.122(d)(1)-(2).
13 17 TTABVUE 4 (Ex. 1). Although the TSDR printout was generated by the database on the
same day it was filed with the Board, thus reflecting the status is current.

Opposition No. 91284802
5
canned tomato puree, and canned tomato paste.’”14 The TSDR printout provides the
following information: an actual image of the stylized mark, the mark is registered
on the Principal Register, and the registration’s current status is “renewed” and
“active.” Put simply, the testimony and TSDR printout do not individually
demonstrate Opposer’s ownership and status of the pleaded registration; however,
taken together, they do. See RedyRef-Pressed & Welded, Inc. v. Kero Metal Prods. Co.,
Inc., Opp. No. 61943, 1981 TTAB LEXIS 24, at *4 n.5 (Board considered a registration
of record because an otherwise improper copy filed under notice of reliance, not
showing ownership, was accompanied by testimony regarding ownership the
registration).
Accordingly, we consider Opposer’s pleaded registration to be of record.15
II. Opposer’s Entitlement to a Statutory Cause of Action
Establishing an entitlement to a statutory cause of action is a threshold
requirement in every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d
1298, 1303 (Fed. Cir. 2020); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM,
LLC, 965 F.3d 1370, 1373 (Fed. Cir. 2020). Thus, Opposer, as plaintiff in this
14 16 TTABVUE 3 (DiNapoli Dec. ¶ 5).
15 Opposer’s request for the Board to take judicial notice of its pleaded registration is therefore
moot. We point out, however, that it is generally the Board’s practice not to take judicial
notice of registrations, including those pleaded by plaintiffs. Indus. Adhesive Co. v. Borden,
Inc., No. 9165373, 1983 TTAB LEXIS 104, at *13-14 (“[T]he Board deems it inappropriate to
exercise any discretion it may have to take judicial notice of the currency and subsistence of
[the pleaded registration] in opposer’s name. Longstanding practice of the Board and
consistent treatment of litigants militates against such action.”); see also, Edom Labs Inc. v.
Lichter, No. 91193427, 2012 TTAB LEXIS 81, at *12 (“The Board does not take judicial notice
of registrations or applications residing in the Office …”).

Opposition No. 91284802
6
opposition proceeding, must prove its entitlement to a statutory cause of action by a
preponderance of the evidence. See, e.g., Made in Nature, LLC v. Pharmavite LLC,
No. 91223352, 2022 TTAB LEXIS 228, at *8.
To establish an entitlement to a statutory cause of action, Opposer must
demonstrate that it has: (1) an interest falling within the zone of interests protected
by the statute, and (2) a reasonable belief in damage proximately caused by the
registration of the mark. Curtin v. United Trademark Holdings, Inc., 137 F.4th 1359,
1367 (Fed. Cir. 2025) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 129-134 (2014)); Corcamore, 978 F.3d at 1304-07; see also Made in
Nature, 2022 TTAB LEXIS 228, at *18.
Here, as discussed above, Opposer is owner of a pleaded registration for the mark
DI NAPOLI (stylized with a design) for “canned tomatoes, canned tomato puree, and
canned tomato paste” and alleges a likelihood of confusion with Applicant’s proposed
mark DA NAPOLI (stylized with a design) for “pasta; sauces; packaged meals
consisting primarily of pasta or rice.” Additionally, Opposer’s witness testifies that
Opposer has long been in the business of selling various styles of processed
tomatoes.16
The aforementioned forms a plausible Section 2(d) likelihood of confusion claim.
See Conopco, Inc. v. Transom Symphony OpCo, LLC, No. 91256368, 2022 TTAB
LEXIS 194, at *11. Therefore, Opposer has established its entitlement to oppose
Applicant’s application. N.Y. Yankees P’ship v. IET Prods. & Servs., Inc., No.
16 16 TTABVUE 3-4 (DiNapoli Dec. ¶¶ 1-10).

Opposition No. 91284802
7
91189692, 2015 TTAB LEXIS 96, at *8 (“Opposer’s standing is established with
respect to its likelihood of confusion and dilution claims by its . . . registrations . . .
which the record shows to be valid and subsisting, and owned by Opposer.”) (citing
Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000)); see also
Corcamore, 978 F.3d at 1306.
III. Priority
Because Opposer’s valid and subsisting registration is of record and Applicant has
not counterclaimed to cancel it, priority is not an issue for Opposer’s claimed mark
and goods identified in the registration. Heil Co. v. Tripleye GmbH, No. 91277359,
2024 TTAB LEXIS 494, at *44 (citing King Candy, Inc. v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 1402-03 (CCPA 1974)); Nkanginieme v. Appleton, No. 91256464, 2023
TTAB LEXIS 64, at *4 (“Opposer’s registration removed priority as an issue.”).
As noted above, Opposer also alleged prior use of the mark DI NAPOLI for the
goods identified in its registration, as well as “a range of tomato based sauces,
including marinara sauce.”17 Opposer, however, did not prove its priority with respect
to those asserted common law rights. Specifically, although Opposer’s witness
testified to Opposer’s long history, there is no testimony regarding when Opposer
began using the mark DI NAPOLI on “tomato-based or marinara sauces.”
Accordingly, our likelihood of confusion analysis is restricted to Opposer’s rights
in its pleaded registration vis-à-vis Applicant’s proposed mark.
17 Not. of Opp. ¶ 2, 1 TTABVUE 3.

Opposition No. 91284802
8
IV. Likelihood of Confusion
We now turn to Opposer’s likelihood-of-confusion claim. Section 2(d) of the Act, in
relevant part, prohibits registration of a mark that “so resembles a mark registered
in the Patent and Trademark Office . . . as to be likely, when used on or in connection
with the goods [or services] of the applicant, to cause confusion, or to cause mistake,
or to deceive.” 15 U.S.C. § 1052(d). Again, we are mindful that Opposer bears the
burden of establishing that there is a likelihood of confusion by a preponderance of
the evidence. Cunningham, 222 F.3d at 951. To determine whether confusion is
likely, we analyze all probative evidence relevant to the factors set out in In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). See In re
Majestic Distilling Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003).
In every Section 2(d) case, two key DuPont factors are the similarity or
dissimilarity of the marks and the relatedness of the respective goods or services,
because the “fundamental inquiry mandated by § 2(d) goes to the cumulative effect
of differences in the essential characteristics of the goods [or services] and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103
(CCPA 1976). Here, we have considered these DuPont factors, as well as any other
factor that is relevant and for which there is evidence and argument of record. See In
re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
Varying weights may be assigned to each DuPont factor depending on the
evidence presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344,
1356 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 1205 (Fed. Cir. 1993) (“[T]he
various evidentiary factors may play more or less weighty roles in any particular

Opposition No. 91284802
9
determination.”). Ultimately, however, “each case must be decided on its own facts
and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d
1197, 1199 (CCPA 1973).
A. Similarity of the Marks
We begin our likelihood of confusion analysis with the first DuPont factor, which
focuses on the similarity or dissimilarity of the marks in their entireties as to
appearance, sound, connotation and commercial impression. See Palm Bay, 396 F.3d
at 1371 (quoting DuPont, 476 F.2d at 1361). Similarity as to any one of these elements
may be sufficient to support a finding that the marks are confusingly similar. See
Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 732 (CCPA 1968) (“It is sufficient if
the similarity in either form, spelling or sound alone is likely to cause confusion.”); In
re Inn at St. John’s, LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13. But see
Champagne Louis Roederer S.A. v. Delicato Vineyards, 148 F.3d 1373, 1375 (Fed. Cir.
1998) (“[O]ne DuPont factor may be dispositive in a likelihood of confusion analysis,
especially when that single factor is the dissimilarity of the marks.”).
In assessing the similarity of the marks, all elements of the marks must be
considered. In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985). “The proper
test is not a side-by-side comparison of the marks, but instead whether the marks are
sufficiently similar in terms of their commercial impression such that persons who
encounter the marks would be likely to assume a connection between the parties.” In
re i.am.symbolic, 866 F.3d 1315, 1324 (Fed. Cir. 2017) (quoting Coach Servs. Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012)). And “[t]he focus is on
the recollection of the average purchaser, who normally retains a general rather than

Opposition No. 91284802
10
a specific impression of trademarks.” In re Box Sols. Corp., No. 76267086, 2006 TTAB
LEXIS 176, at *14.
Again, Applicant’s proposed mark is: .
And Opposer’s registered mark is: .
In terms of sound, because there is only single letter difference between the marks,
the marks are likely to be pronounced in a very similar manner. Indeed, to the ears
of consumers, the pronunciations of the marks, DA NAPOLI and the other DI
NAPOLI, may be indistinguishable.
As to their appearance, both marks are stylized differently and contain different
design elements, i.e., Applicant’s proposed mark has a two-tone flag and banner
background. Despite these differences, the stylization in each mark is not so
distinctive. Similarly, the banner and flag background in Applicant’s mark and the
small star design in the registered mark do little to convey a distinct commercial
impression that can distinguish the marks. Consumers encountering either mark are
far more likely to focus on the literal elements and view the stylization and design
elements as common ornamental attributes. See, e.g., In re Viterra Inc., 671 F.3d
1358, 1362 (Fed. Cir. 2012) (“the verbal portion of a word and design mark likely will
be the dominant portion”); In re Aquitaine Wine USA, No. 86928469, 2018 TTAB
LEXIS 108, *6 (“the words are normally accorded greater weight because they are
likely to make a greater impression upon purchasers, to be remembered by them, and
to be used by them to request the [services].” (citations omitted); In re Appetito

Opposition No. 91284802
11
Provisions Co., Ser. No. 423405, 1987 TTAB LEXIS 47, *3-4 (“if one of the marks
comprises both a word and a design, then the word is normally accorded greater
weight because it would be used by purchasers to request the goods or services” and
“because applicant’s mark shares with registrant’s mark that element responsible for
creating its overall commercial impression, the marks are confusingly similar”). “This
makes sense given that the literal component of brand names likely will appear alone
when used in text and will be spoken when requested by consumers.” In re Viterra,
671 F.3d at 1366.
As to the connotation or commercial impression of the marks, Opposer’s witness
explains that the literal element of its mark derives from the surname of his
grandfather and Opposer’s founder, Frank DiNapoli.18 On the other hand, the term
NAPOLI is the Italian name for the Italian city of Naples.19 Opposer argues that “the
terms that precede the dominant portion, DI and DA, convey essentially the same
meaning – ‘from’ and ‘of.’”20 Thus, aside from any possible surname significance, the
18 16 TTABVUE 3 (DiNapoli Dec. ¶ 2).
19 We take judicial notice of the definition of “Napoli” from Dictionary.com
(www.dictionary.com/napoli), source: COLLINS ENGLISH DICTIONARY — COMPLETE &
UNABRIDGED. 2012 Digital Edition William Collins Sons & Co. Ltd. 1979, 1986;
HarperCollins Publishers 2012. Accessed April 13, 2026. “The Board may take judicial notice
of information from dictionaries, encyclopedias and other standard reference works,” and we
do so here. In re Info Builders Inc., No. 87753964, 2020 TTAB LEXIS 20, at *10 n.6 (citing
inter alia B.V.D. Licensing Corp. v. Body Action Design Inc., 846 F.2d 727, 728 (Fed. Cir.
1988) (“dictionaries and encyclopedias may be consulted”)).
20 18 TTABVUE 12-13. Applicant cites to two website addresses in its brief that presumably
show the meaning of the Italian terms “di” and “da” in English; however, neither the website
addresses nor the underlying pages associated with each address were made of record during
Opposer’s assigned trial period. “Web addresses or hyperlinks are not sufficient to make the
underlying webpages of record.” In re ADCO Indus., No. 87545258, 2020 TTAB LEXIS 7, at
*4; Aquitaine Wine, 2018 TTAB LEXIS 108, at *27 n.21 ( “we do not consider websites for

Opposition No. 91284802
12
marks may suggest being “from” or “of” the Italian city. And, as previously noted, the
involved application has a disclaimer of the term NAPOLI as well as statement
providing the “English translation of DA NAPOLI in the mark is FROM NAPLES.”
We hasten to add, however, that there is no argument as to weakness of the Opposer’s
mark.
With the above in mind, both marks may be perceived by consumers as either
having some surname significance or as evoking the Italian city of Naples. Thus, the
marks are capable of conveying the same or very similar commercial impressions.
In sum, although both marks are stylized differently and are spelled differently
by a single letter, we find them to be very similar in sight, sound and connotation.
The first DuPont factor thus weighs strongly in favor of a conclusion that confusion
is likely.
B. Relatedness of the Goods and Their Trade Channels
We turn next in our analysis to the second DuPont factor concerning the
relatedness of the goods, and the third DuPont factor involving the similarity or
dissimilarity of established, likely to continue trade channels.
Here, there are inherent relationships between Applicant’s “pasta” and “sauces”
with Opposer’s “canned tomatoes, canned tomato puree, and canned tomato paste.”
For one, it is common knowledge that canned tomatoes, tomato puree and tomato
paste are complementary goods with pasta. That is, these products are commonly
used to make Italian dishes. In addition, the term “sauces” in the application is broad
which only links are provided”). Thus, these website addresses have no evidentiary value.

Opposition No. 91284802
13
and includes tomato sauce, a product that closely resembles, if not being the same as,
Opposer’s canned tomatoes or tomato purees.
Moreover, as evidenced by Opposer’s “Distributor Price List,” Applicant’s “sauces”
are the type of goods that may be distributed in the same trade channels as Opposer’s
canned tomatoes, tomato paste and puree.21 These goods will be found in the same
retail trade channels, including supermarket chains. Opposer’s witness testified that
its goods, which include tomato sauces, purees, and pastes, can be found “retail and
foodservice markets … retail promotions at supermarket chains … as well as
numerous other food service trade shows throughout the United States.”22 Given that
there is no restriction in the application with respect to the trade channels for
Applicant’s goods, we must presume that its “sauces” move in all of the normal and
usual channels of trade and methods of distribution for sauces, including through the
same trade channels as Opposer’s goods. See Octocom Sys., Inc. v. Houston Comput.
Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990).
In view of the inherent close relationships between the parties’ goods and that the
goods may be found in the same trade channels, we find the second and third DuPont
factors weigh firmly in favor of a conclusion that confusion is likely.
C. Opposer’s Assertion of Actual Confusion
The seventh DuPont factor relates to the nature and extent of any actual
confusion. See DuPont, 476 F.2d at 1361. Opposer correctly notes that a showing of
21 16 TTABVUE 3-4 (DiNapoli Dec. ¶ 10, Ex. A).
22 16 TTABVUE 4 (DiNapoli Dec. ¶¶ 11, 13-14).

Opposition No. 91284802
14
actual confusion is strong evidence to support a finding that a likelihood of confusion
exists.23 See Detroit Athletic, 903 F.3d at 1309. In re Detroit Ath. Co., 903 F.3d 1297,
at 1309 (Fed. Cir. 2018). See also, e.g., Edom Labs., 2012 TTAB LEXIS 81, at *24
(“The existence of actual confusion is normally very persuasive evidence of likelihood
of confusion and undercuts any possible claim that the marks are so dissimilar that
there can be no likelihood of confusion.”)
Here, Opposer cites to the testimony of its witness who averred that he “received
a message on Facebook from an old industry friend, asking if [Opposer’s licensee] was
associated with the DA NAPOLI sauce and meal kit, which Applicant was making a
demonstration at … a nearby grocery store.”24 However, for several reasons, the
testimony that Opposer relies upon is unreliable for purposes of demonstrating an
occurrence of actual confusion. This single purported instance of actual confusion was
an inquiry as to affiliation, and not an instance of actual confusion. See, e.g., Marshall
Field & Co. v. Mrs. Fields Cookies, No. 78031, 1992 TTAB LEXIS 52, at *48 (inquiries
of affiliation not actual confusion); Elec. Water Conditioners, Inc. v. Turbomag Corp.,
No. 64780, 1984 TTAB LEXIS 188, at *10 (“That questions have been raised as to the
relationship between firms is not evidence of actual confusion of their trademarks.”)
(citations omitted); Toys R’ Us, Inc. v. Lamps R Us, No. 62749, 1983 TTAB LEXIS
229, at *22 (“The fact that questions have been raised as to the possible relationship
between firms is not by itself evidence of actual confusion of their marks.”).
23 Opposer’s Brief,
24 18 TTABVUE 9, citing to 16 TTABVUE 4-5 (DiNapoli Dec. ¶ 18 and Ex. B (Facebook
screenshot)).

Opposition No. 91284802
15
In sum, we have no evidence of actual confusion and the seventh DuPont factor is
neutral in our likelihood of confusion analysis.
V. Conclusion
Weighing the applicable DuPont factors based on the arguments and evidence
presented, we find that the parties’ marks are very similar in appearance, sound,
connotation and commercial impression; that the parties’ goods are inherently and
closely related; and that there is overlap in the channels of trade for the parties’ goods.
Taking the DuPont factors together, and particularly with no factors favoring
Applicant, we conclude that Opposer has carried its burden in showing that there is
a likelihood of confusion.
Decision: The opposition to registration of Applicant’s DA NAPOLI (stylized
with a design) mark is sustained under Section 2(d) of the Act.