Bearington Collection, Inc.

Trademark Trial and Appeal Board

Oct 15, 2008

No. 78843023 (T.T.A.B. Oct. 15, 2008)

Mailed: October 15, 2008

Hearing: July 22, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Bearington Collection, Inc.
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Serial No. 78843023
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William H. Brewster and Christopher P. Bussert of Kilpatrick
Stockton for Bearington Collection, Inc.

Ronald G. McMorrow, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
____________

Before Walters, Drost and Wellington, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

Bearington Collection, Inc. has filed an application to
register the standard character mark CUDDLE ME SLEEPERS on
the Principal Register for “toy blankets consisting of an
animal head rattle affixed to a small blanket,” in
International Class 28.1 The application includes a
disclaimer of SLEEPERS apart from the mark as a whole.

1 Serial No. 78843023, filed March 22, 2006, based on use of the mark in
commerce, alleging first use and use in commerce as of June 30, 2003.
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 78843023

2
The examining attorney has issued a final refusal to
register under Section 2(d) of the Trademark Act, 15 U.S.C.
1052(d), on the ground that applicant’s mark so resembles
the mark CUDDLE ME, previously registered for “comforters,”2
that, if used on or in connection with applicant’s goods, it
would be likely to cause confusion or mistake or to deceive.
Applicant has appealed. Both applicant and the
examining attorney have filed briefs. We affirm the refusal
to register.
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
confusion issue. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also Palm
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences

Serial No. 78843023

3
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); and In re
Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB
1999) and the cases cited therein.
We turn, first, to a determination of whether
applicant’s mark and the registered mark, when viewed in
their entireties, are similar in terms of appearance, sound,
connotation and commercial impression. The test is not
whether the marks can be distinguished when subjected to a
side-by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial
impressions that confusion as to the source of the goods or
services offered under the respective marks is likely to
result. 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). Furthermore,
although the marks at issue must be considered in their
entireties, it is well settled that one feature of a mark
may be more significant than another, and it is not improper
to give more weight to this dominant feature in determining
the commercial impression created by the mark. See In re

2 Registration No. 1344525 issued June 25, 1985, in International Class
24, and is owned by Crown Craft Infant Products, Inc. [Renewed; Section
15 affidavit acknowledged.]
Serial No. 78843023

4
National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir.
1985).
Applicant argues that the term SLEEPERS in its mark is
sufficient to distinguish the goods. We disagree.
Applicant’s mark consists of the registered mark in its
entirety with the addition, at the end, of a merely
descriptive, disclaimed term. As such, applicant’s mark is
likely to be perceived as identifying another product in the
CUDDLE ME line. When we consider the marks as a whole, we
find that they are substantially similar in appearance,
sound, connotation and overall commercial impression.
Turning to consider the goods involved in this case, we
note that the question of likelihood of confusion must be
determined based on an analysis of the goods or services
recited in applicant’s application vis-à-vis the goods or
services recited in the registration, rather than what the
evidence shows the goods or services actually are. Canadian
Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813, 1815 (Fed. Cir. 1987). See also, Octocom Systems,
Inc. v. Houston Computer Services, Inc., 918 F.2d 937, 16
USPQ2d 1783 (Fed. Cir. 1992); and The Chicago Corp. v. North
American Chicago Corp., 20 USPQ2d 1715 (TTAB 1991).
Further, it is a general rule that goods or services need
not be identical or even competitive in order to support a
finding of likelihood of confusion. Rather, it is enough
Serial No. 78843023

5
that goods or services are related in some manner or that
some circumstances surrounding their marketing are such that
they would be likely to be seen by the same persons under
circumstances which could give rise, because of the marks
used therewith, to a mistaken belief that they originate
from or are in some way associated with the same producer or
that there is an association between the producers of each
parties’ goods or services. In re Melville Corp., 18 USPQ2d
1386 (TTAB 1991), and cases cited therein; and Time Warner
Entertainment Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB
2002).
Applicant argues that the differences between the
respective goods are considerable, noting that its goods are
labeled, marketed and sold as toys, not blankets; that its
toys and registrant’s comforters “serve different purposes
(one is a covering and the other is a plaything), are
displayed in different areas of stores and are not
complimentary or interchangeable” (brief, p. 10); and that
its toys and registrant’s comforters are sold in entirely
different channels of trade.
The examining attorney contends that applicant’s goods
are, in fact, baby blankets, noting that applicant
originally identified its goods as blankets. The examining
attorney submitted copies of third-party registrations for
marks registered in connection with both blankets and
Serial No. 78843023

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comforters, including, specifically, baby blankets and baby
comforters. He also referred to the excerpt from
registrant’s website, submitted by applicant, indicating
that registrant manufactures infant bedding, blankets and
accessories that are available at stores such as Babies “R”
Us, JC Penney, K-Mart and juvenile specialty stores.
The registrant’s goods are identified as “comforters,”
which encompasses all types of comforters, including baby
comforters. The third-party registrations, while not
evidence of use of the marks on the goods identified
therein, are, nonetheless, sufficient to suggest that
blankets and comforters may be offered by a single entity.
See In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB
1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467 (TTAB
1988). Applicant’s goods are identified as “toy blankets
consisting of an animal head rattle affixed to a small
blanket.” It is immaterial whether applicant’s goods are
marketed, or would be perceived by consumers, as primarily
blankets to cover a baby, blankets to sooth a baby, or toy
blankets, or all three. The toy animal head with rattle is
affixed to a small blanket and, as such, it is likely to be
perceived as related to blankets. Further, while
applicant’s identification of goods is limited to “small
blankets,” applicant is not limited therein to producing
only the size blanket it currently produces. Because the
Serial No. 78843023

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product consists in part of a blanket, it would be
reasonable for consumers to believe that it comes from the
same source as a baby blanket or baby comforter. Therefore,
we find that the goods are sufficiently related that, if
identified by similar marks, confusion as to source is
likely.
Moreover, both applicant’s and registrant’s goods are
baby products that are likely to be purchased by the general
consumer and to travel in at least overlapping trade
channels. See In re Linkvest S.A., 24 USPQ2d 1716 (TTAB
1992).
Applicant argues against a likelihood of confusion on
the ground that the marks have coexisted in the marketplace
for almost five years with no evidence of actually
confusion. However, while a factor to be considered, the
absence or presence of actual confusion is of little
probative value where we have little evidence pertaining to
the nature and extent of the use by applicant and
registrant. Moreover, the test under Section 2(d) is not
actual confusion but likelihood of confusion. See In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003)(“uncorroborated statements of no known instances
of actual confusion are of little evidentiary value.”). See
also, In re Kangaroos U.S.A., 223 USPQ 1025 (TTAB 1984); and
In re General Motors Corp., 23 USPQ2d 1465 (TTAB 1992).
Serial No. 78843023

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Similarly, applicant’s argument that it has no intent
to trade upon registrant’s reputation is unavailing. While
proof of an intent to trade on registrant’s reputation would
weigh in favor of a finding of likelihood of confusion, a
lack of such intent does not obviate likelihood of
confusion.
When we consider the record and the relevant likelihood
of confusion factors, and all of applicant's arguments
relating thereto, including those arguments not specifically
addressed herein, we conclude that in view of the
substantial similarity in the commercial impressions of
applicant’s mark, CUDDLE ME SLEEPERS, and registrant’s mark,
CUDDLE ME, their contemporaneous use on the closely related
goods involved in this case is likely to cause confusion as
to the source or sponsorship of such goods.
Decision: The refusal under Section 2(d) of the Act is
affirmed.