August Storck KG

Trademark Trial and Appeal Board

May 15, 2015

No. 79119647 (T.T.A.B. May. 15, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 15, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re August Storck KG
_____

Serial No. 79119647
_____

Joseph F. Schmidt of Taft Stettinius & Hollister LLP,
for August Storck KG
Ahsen Khan, Trademark Examining Attorney, Law Office 113,
Odette Bonnet, Managing Attorney.
_____

Before Bucher, Greenbaum and Gorowitz,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
August Storck KG (“Applicant”) seeks registration on the Principal Register of
the mark 2good (in standard characters) for
Chocolate candy, namely, chocolate candy bars in
International Class 30.1
The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground
that Applicant’s mark, when used on its identified goods, so resemble the registered

1 Application Serial No. 79119647 was filed on November 1, 2012, based upon a request for
extension of protection under Section 66(a) of the Trademark Act, 15 U.S.C. § 1142(f).
Serial No. 79119647
- 2 -

mark for various goods including “chocolate” in International Class 30 as
to be likely to cause confusion, mistake or deception.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed.3 We affirm the refusal to register.
I. Applicable Law
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are relevant to the factors set forth in In
re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See
also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905 (Fed. Cir. 2012); and In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In
any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods or services. See
Federated Foods, Inc. v. Fort Howard Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of

2 Registration No. 4235722 registered on November 6, 2012, and includes the following
description of the mark: “The mark consists of the vertical wording ‘TOOGOOD’ encased in
a single line square.” The registration also includes various goods in International Class 29,
none of which were cited as a bar to Applicant’s application.
3 Applicant’s briefs have been filed in single space. Applicant is advised that briefs must be
double spaced. See Trademark Rule 2.126(a)(1) and Trademark Rule 2.142(b)(2). We also note
that Applicant attached to its appeal brief two exhibits comprising approximately 20 pages of
evidence. We generally do not consider evidence attached to appeal briefs. However, we will
consider this evidence because Applicant already made it of record with the Request for
Reconsideration. It was not necessary for Applicant to resubmit such material. See TBMP
§§ 1203.02(e) and 1207.04 (2014).
Serial No. 79119647
- 3 -

differences in the essential characteristics of the goods and differences in the
marks.”). We consider each of the factors as to which Applicant or the Examining
Attorney presented arguments or evidence. The others, we consider to be neutral.
A. Relatedness of the Goods, Channels of Trade and Conditions of
Purchase
We begin with the du Pont factors of the relatedness of the goods, channels of
trade and conditions of purchase. We base our evaluation on the goods as they are
identified in the application and registration. Stone Lion Capital Partners, LP v.
Lion Capital LLP, 76 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom
Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990). See also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d
1261, 62 USPQ2d 1001 (Fed. Cir. 2002).
In this case, the “chocolate” identified in the registration is legally identical to
the “chocolate candy, namely, chocolate candy bars” identified in the application.
See In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006), citing In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981) (unrestricted and broad identifications
are presumed to encompass all goods of the type described). Indeed, “chocolate” is
defined as “a candy made or covered with chocolate.”4 In the context of likelihood of
confusion, it is sufficient if likelihood of confusion is found with respect to use of the
mark on any item that comes within the description of goods in the application or

4 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du
Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372,
217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or
have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
We take judicial notice of the above definition of “chocolate” from .
Serial No. 79119647
- 4 -

registration. Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209
USPQ 986, 988 (CCPA 1981); Apple Computer v. TVNET.Net, Inc., 90 USPQ2d
1393, 1398 (TTAB 2007). Further, because Registrant’s identification of goods is not
restricted as to channels of trade or classes of purchasers, the goods identified in the
registration must be deemed to travel in the all channels of trade normal for such
goods, such as grocery stores and candy shops, and be sold to the all classes of
purchasers, including ordinary consumers who enjoy eating chocolate. Viterra, 101
USPQ2d at 1908 (absent restrictions in an application or registration, the identified
goods are “presumed to travel in the same channels of trade to the same class of
purchasers.”), quoting Hewlett-Packard, 62 USPQ2d at 1001. See also Stone Lion,
110 USPQ2d at 1161; In re Linkvest, 24 USPQ2d 1716, 1716 (TTAB 1992). In other
words, there is nothing to prevent Applicant from offering for sale its chocolate
candy bars through the same trade channels and to the same purchasers who buy
Registrant’s chocolate, and vice-versa. See In re Anderson, 101 USPQ2d 1912, 1920
(TTAB 2012).
Applicant argues that the goods are different in that Applicant has limited its
goods to “chocolate candy, namely, chocolate candy bars,” and the goods of Applicant
and Registrant would be sold in different sections of stores. However, Applicant has
not explained how the “chocolate” identified in the registration differs from the
“chocolate candy, namely, chocolate candy bars” identified in the application, and
given the dictionary definition of the word “chocolate,” we see no legally cognizable
difference. Moreover, because we must focus on the identification of goods set forth
Serial No. 79119647
- 5 -

in the application and registration, rather than on “real-world conditions,”
Applicant’s argument regarding the physical location of the respective goods at the
point of sale is unavailing. See Stone Lion, 110 USPQ2d at 1162; Octocom, 16
USPQ2d at 1787.
The du Pont factors of the similarity of the goods, channels of trade and the
conditions of purchase favor a finding of likelihood of confusion.
B. Comparison of the Marks
We next compare the marks 2good and “in their entireties as to
appearance, sound, connotation and commercial impression” to determine the
similarity or dissimilarity between them. Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed.
Cir. 2005), quoting du Pont, 177 USPQ at 567. “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.” Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012).
The focus is on the recollection of the average purchaser, who normally retains a
general rather than a specific impression of trademarks. See Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975).
In comparing the marks, we are mindful that where, as here, the goods include
legally identical items, the degree of similarity necessary to find likelihood of
Serial No. 79119647
- 6 -

confusion need not be as great as where there is a recognizable disparity between
the goods. Coach Servs., 101 USPQ2d at 1721; Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
It is the Examining Attorney’s position that the dominant portion of Registrant’s
mark is the wording TOOGOOD, which is phonetically equivalent to the entirety of
Applicant’s mark 2good, resulting in two marks that create similar commercial
impressions.
Applicant acknowledges that the marks are phonetic equivalents, but argues
that this is irrelevant because Applicant’s and Registrant’s goods are normally
selected from shelves at retail locations or online, rather than by verbal request. As
support for this proposition, Applicant relies on La Maur, Inc. v. Revlon, Inc., 245
F.Supp. 839, 146 USPQ 654, 655 (D. Minn. 1965) (“Similarities in appearance,
meaning or sound in the marks are of course important considerations. Any
similarity in pronunciation, that is, that the marks are sound-alikes, is, however,
minimized when, as here, the product is often purchased in a self-service cosmetics
department and not by request to a sales clerk.”). We distinguish La Maur because
it presents different facts from the facts before us, in large part because it is an
action for infringement and not an ex parte appeal, and it includes evidence of how
the marks actually were used in commerce.
We find that, as Applicant and the Examining Attorney agree, Applicant’s mark
2good and Registrant’s mark are phonetically identical, and therefore likely to be
pronounced the same way. It is well established that in a particular case, “two
Serial No. 79119647
- 7 -

marks may be found to be confusingly similar if there are sufficient similarities in
terms of sound or visual appearance or connotation.” Kabushiki Kaisha Hattori
Seiko v. Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB 1991), aff’d mem., 979
F.2d 216 (Fed. Cir. 1992) (emphasis in the original; citation omitted). However, as
discussed below, Applicant’s and Registrant’s marks also are similar in appearance,
meaning and commercial impression.
Applicant argues that the marks are visually dissimilar due to the arrangement
of letters in Registrant’s mark in a vertical, rather than horizontal, row, the use of
different fonts, and the substitution of the numeral “2” in Applicant’s mark for the
word “too” (or “two”). Applicant further contends that this substitution changes the
connotation of the marks because the numeral “2” is an actual number and relates
to a pair, while the word “too,” when combined with the word “good” in Registrant’s
mark, appears to describe Registrant’s goods in a laudatory fashion. We do not find
these arguments persuasive.
Although Applicant refers to its mark as stylized, Applicant states in its
application that the mark is in standard characters. As such, Applicant’s mark is
not limited to any particular depiction. Squirtco v. Tomy Corp., 697 F.2d 1038, 216
USPQ 937, 939 (Fed. Cir. 1983) (the rights associated with a mark in standard
characters reside in the wording and not in any particular display); In re RSI
Systems, LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy Products
Corp., 8 USPQ2d 2012, 2015 (TTAB 1988). Thus, Applicant’s mark also could
appear on a vertical axis, and in a similar (or identical) font as Registrant’s mark.
Serial No. 79119647
- 8 -

We also recognize the common substitution of certain words with phonetically
equivalent numerals such as “too” and “2,” or “for” and “4” (as in “2 good 2 be
4gotten”) in diverse arenas such as graffiti, vanity license plates, texting, and email.
Applicant’s replacement of the word “too” with the numeral “2” is a minor difference
which consumers are not likely to notice or remember. Slight differences in marks
do not normally create dissimilar marks. In re Great Lakes Canning, Inc., 227
USPQ 483, 485 (TTAB 1985) (“Moreover, although there are certain differences
between the marks [CAYNA and CANA] in appearance, namely, the inclusion of the
letter ‘Y’ and the design feature in applicant’s mark, there are also obvious
similarities between them. Considering the similarities between the marks in sound
and appearance, and taking into account the normal fallibility of human memory
over a period of time (a factor that becomes important if a purchaser encounters one
of these products and some weeks, months, or even years later comes across the
other), we believe that the marks create substantially similar commercial
impressions.”). When coupled with the identical word “good,” “too” and “2” result in
marks whose overall appearance is more similar than different.
With respect to the meanings and commercial impressions of the marks, we
agree with Applicant’s argument that TOOGOOD, the literal portion of Registrant’s
mark, means “excessively good.” However, Applicant’s mark 2good, which is a
simple misspelling of “too good,” has the same meaning and commercial impression
as Registrant’s mark.
Serial No. 79119647
- 9 -

As discussed above, when we consider the marks, we do so based on the average
purchaser retaining a general rather than specific impression of a mark. See
Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980);
Sealed Air, 190 USPQ at 108. Here, because the goods include identical items, the
marks are phonetically identical, share the meaning “excessively good” and are
similar in overall appearance, we find on balance that the similarities in the marks
outweigh their differences. Viterra, 101 USPQ at 1912. As such, the du Pont factor
of the similarity of the marks also favors a finding of likelihood of confusion.
C. Third-Party Uses
The next factor we consider is that of third-party use. As Applicant points out,
evidence of third-party use can be used to show that a registrant’s mark is weak
and thus entitled to a limited scope of protection. To this end, Applicant submitted
with its Request for Reconsideration printouts of eight websites that include the
wording “TOO GOOD” for diverse products, such as recipes for “Too Good Beef
Biryani” and “Too Good Baked Chicken,” an article reporting the recall of “Richard’s
Too Good BBQ Sauce” due to a risk of botulism, and dips and specialty mixes from
“Too Good Gourmet.” However, most of this evidence does not show use of the
wording TOO GOOD on or in connection with chocolate or chocolate-based products.
The only exception is a printout for “Whey Too Good Brownie Mix” from the
Netrittion.com website. In addition to being the sole example of use of the wording
“Too Good” with a chocolate product, “Whey Too Good” is an obvious play on the
larger phrase “way too good,” and does not render Registrant’s mark weak.
Serial No. 79119647
- 10 -

Applicant also submitted with the Request for Reconsideration copies of 17
third-party registrations which, according to Applicant, incorporate the term “too
good” used in relation to food and food related products. Of these, only five are
active.5 In addition to being limited in number, unlike the marks in the application
and cited registration, none of the five third-party registrations consist of the terms
TOO GOOD or 2GOOD alone or with a minimal design element, or appear to relate
directly to chocolate or chocolate products.6 Further, the five registrations have
little weight in determining the strength of a mark because they do not establish
that the registered marks identified therein are in actual use in the marketplace or
that consumers are accustomed to seeing them. See AMF Inc. v. Am. Leisure Prods.,
Inc., 474 F.2d 1403, 1406, 177 USPQ 268, 269 (CCPA 1973); In re Davey Prods. Pty
Ltd., 92 USPQ2d 1198, 1204 (TTAB 2009).
This evidence of third-party use is not sufficient to establish that the mark in
the cited registration is weak. However, even if we were to consider Registrant’s
mark weak, even weak marks receive protection against likely confusion where the

5 We do not consider the 12 cancelled registrations submitted by Applicant. A cancelled
registration is not entitled to any of the presumptions of Section 7(b) of the Trademark Act,
15 U.S.C. § 1057(b). See, e.g., in re Hunter Publishing Co., 204 USPQ 957, 963 (TTAB
1979) (cancellation “destroys the Section [7(b)] presumptions and makes the question of
registrability ‘a new ball game’ which must be predicated on current thought.”).
6 The third-party registrations are for the following marks and goods or services: TOO
GOOD TO BE FOOD for “online journal, namely, a blog featuring information in the field of
nutrition”; 2GOOD2B … GLUTEN FREE for “gluten-free bakery goods and gluten-free
bakery desserts” and “restaurant, café and catering services, all providing gluten-free
foods”; 2GOOD2B for “bakery goods and bakery desserts” and “restaurant, café and
catering services”; TWO TOO GOOD! For “retail store services featuring popcorn and on-
line retail store services featuring popcorn”; and TOOGOOD ESTATE and Design for
“apparel for men, women and children, namely, belts, blazers, hats, jackets, pants, shirts,
shoes, shorts, sweaters, sweatshirts, tank tops and ties” and “wine.” The marks 2GOOD2B
… GLUTEN FREE and 2GOOD2B are owned by one registrant.
Serial No. 79119647
- 11 -

goods include identical items and the marks are similar. King Candy Co. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 183 USPQ 108, 109 (CCPA 1974). We consider
this du Pont factor neutral.
II. Conclusion
In conclusion, because the marks are phonetically identical and are similar in
overall appearance, the goods include legally identical items, and the channels of
trade and consumers are the same or overlapping, confusion is likely between
Applicant’s mark 2good and the mark in the cited registration.
Decision: The refusal to register Applicant’s mark 2good is affirmed.