Buddy’s Natural Chicken, Inc.

Trademark Trial and Appeal Board

Mar 14, 2011

No. 76698852 (T.T.A.B. Mar. 14, 2011)

Mailed:
March 14, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Buddy’s Natural Chicken, Inc.
________

Serial No. 76698852
_______

Justin M. Welch of Blazier, Christensen, Bigelow & Virr, PC
for Buddy’s Natural Chicken, Inc.

Kimberly Frye, Trademark Examining Attorney, Law Office 113
(Odette Bonnet, Managing Attorney).
_______

Before Seeherman, Wellington and Wolfson,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Buddy’s Natural Chicken, Inc. filed an application to
register the mark BUDDY’S NATURAL CHICKEN (in standard
character form) for “non-frozen and processed chicken” in
International Class 29.1 The wording “Natural Chicken” has
been disclaimed.
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C.

1 Application Serial No. 76698852, filed August 7, 2009, alleging
first use anywhere and first use in commerce on December 1, 1989.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 76698852
2
§1052(d), on the ground that applicant’s mark, when used in
connection with applicant’s goods, so resembles the
previously registered mark BUDDIES (in typed letters) for
“poultry, namely, chicken nuggets, chicken patties, chicken
strips and chicken wings”2 as to be likely to cause
confusion.
After the examining attorney made the refusal final,
this appeal followed.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant
to the factors bearing on the issue of whether there is a
likelihood of confusion. In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563, 568 (CCPA 1973).
However, as indicated in Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976), in any likelihood of confusion analysis, two key
considerations are the relatedness of the goods at issue
and the similarity or dissimilarity of the respective marks
in their entireties.
We first consider the goods and, in doing so, we note
that the question of likelihood of confusion must be
determined based on an analysis of the goods recited in
applicant’s application vis-à-vis the goods identified in

2 Registration No. 2418544 (issued January 9, 2001), renewed.
Serial No. 76698852
3
the cited registration. In re Shell Oil Co., 992 F.2d
1204, 26 USPQ2d 1687, 1690 n. 4 (Fed. Cir. 1993); and
Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490,
1 USPQ2d 1783 (Fed. Cir. 1992). Where the goods in the
application at issue and/or in the cited registration are
broadly identified as to their nature and type, such that
there is an absence of any restrictions as to the channels
of trade and no limitation as to the classes of purchasers,
it is presumed that in scope the identification of goods
encompasses not only all the goods of the nature and type
described therein, but that the identified goods are
offered in all channels of trade which would be normal
therefor, and that they would be purchased by all potential
buyers thereof. In re Elbaum, 211 USPQ 639, 640 (TTAB
1981).
Here, both the involved application and cited
registration include goods that may be broadly
characterized as chicken meat or chicken meat products.
Applicant’s identification includes “non-frozen chicken,
processed chicken,”3 while the cited registration covers

3 The examining attorney attached to her Office Action (issued
April 7, 2010) a dictionary definition of the term “processed”
(in the context of food) as meaning: treated with chemicals that
preserve it or give it extra taste or color.
From Cambridge Dictionary of American English, Cambridge
University Press (2010); www.dictionary.cambridge.org.

Serial No. 76698852
4
specific chicken parts or items, i.e., “chicken nuggets,
chicken patties, chicken strips and chicken wings.”
Applicant’s description of goods is broad enough to include
the chicken pieces covered by the cited registration and,
as such, they are legally identical.
Because the goods are legally identical, we must
presume that the channels of trade and classes of
purchasers are the same. In re Smith and Mehaffey, 31
USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are
legally identical, they must be presumed to travel in the
same channels of trade, and be sold to the same class of
purchasers”). These classes of purchasers include the
public at large.
Accordingly, the du Pont factors involving the
relatedness of the goods, trade channels and classes of
purchasers all strongly favor a finding of likelihood of
confusion.
This brings us to the similarity or dissimilarity of
the marks. Initially, we point out that when marks would
appear on identical goods, as they do here, the degree of
similarity necessary to support a conclusion of likely
confusion declines. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992).
Serial No. 76698852
5
When comparing the marks, our focus is essentially on
whether the marks are similar in sound, appearance,
meaning, and commercial impression. Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005). In articulating
reasons for reaching a conclusion on the issue of
likelihood of confusion, there is nothing improper in
stating that, for rational reasons, more or less weight has
been given to a particular feature of a mark, provided the
ultimate conclusion rests on a consideration of the marks
in their entireties. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Merely
descriptive or generic matter that is disclaimed may be
accorded subordinate status relative to the more
distinctive portions of a mark. In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir.
1997).
In the present case, applicant has disclaimed the
words NATURAL CHICKEN and we conclude that these terms are,
respectively, highly descriptive and generic for chicken
meat. Accordingly, we have no trouble concluding that the
dominant feature of applicant’s mark is the term BUDDY’S,
and note that it is identical in sound to registrant’s
mark, BUDDIES. BUDDY’S is also very similar in appearance
Serial No. 76698852
6
to registrant’s mark, BUDDIES, as the two terms share the
same first four letters and the final “S.”
As to the commercial impressions and connotations of
the marks, the examining attorney argues that they are very
similar because the dominant element of applicant’s mark,
BUDDY’S, and the registered mark, BUDDIES, are both
variations of the same root word, BUDDY, which is defined
as “companion, friend” or “fellow” (used especially in
informal address).4 The examining attorney asserts that as
used in applicant’s mark the term BUDDY’S is merely the
possessive form whereas registrant’s mark, BUDDIES, is the
pluralized form – “one signifies something belonging to a
friend and the other denotes more than one friend.” Brief,
(unnumbered) p. 2.
Applicant’s principal argument on appeal, on the other
hand, is that its mark has a different commercial
impression from that of the registered mark. Specifically,
applicant argues that its mark “conveys the impression that
the natural chicken originates from a person named
‘Buddy,’” which, according to applicant, is a “common and
widely recognized ‘given name or nickname.’” Brief, p. 4.
In support, applicant cites to an online encyclopedia

4 From Merriam-Webster’s Online Dictionary, dictionary entry
attached to Office Action issued April 7, 2010.
Serial No. 76698852
7
(Wikipedia) entry for the term “Buddy.”5 This online
encyclopedia entry first provides that “’Buddy’ may refer
to: A friend or a partner for a particular activity.” The
same entry later provides that “Buddy” is a “given name or
nickname” and then lists several individuals (real and
fictional) who use(d) the name. Applicant also cites to
use of its mark, displayed in the application’s specimen of
use, compared to registrant’s use of its mark.6 In
particular, applicant points out that “registrant always
displays BUDDIES preceded by the adjective, DINO.” Brief,
p. 6.
With respect to the evidence of registrant’s use as
shown on its website, we cannot assume, as applicant
suggests, that registrant’s mark will always be preceded or
modified by the term “Dino,” when used on its goods.
However, applicant’s evidence regarding its own use of its
mark versus the registrant’s actual use of the registered

5 Applicant did not attach a printout of this online encyclopedia
entry, but only provided the website address. However, the
examining attorney did not object and, in fact, attached a
printout from Wikipedia for the entry “Buddy” with her brief.
Because applicant cited to this entry’s web address and the
examining attorney actually provided a printout, we have
considered the information contained therein.
6 Printouts purportedly from registrant’s website were submitted
by applicant with its response to an office action filed
January 28, 2010. In these printouts, the term “Dino” apparently
is an abbreviation of “dinosaur” and the chicken pieces are
shaped like miniature dinosaurs.

Serial No. 76698852
8
mark is relevant to the extent that it may indicate how
consumers are likely perceive the relevant marks. In this
respect, we agree that the evidence indicates that
applicant’s mark is used in the manner of a given name or
nickname, and that applicant’s mark will be understood as
referencing an individual named “Buddy,” rather than in the
sense of a companion or friend. Nonetheless, any possible
difference in the connotations of the marks does not
outweigh the overall similarity between them. We emphasize
that the dominant element of applicant’s mark is the
phonetic equivalent of the registered mark and appears very
similar.
Ultimately, we conclude that consumers familiar with
the BUDDIES mark for “poultry, namely, chicken nuggets,
chicken patties, chicken strips and chicken wings,” will
likely be confused regarding source upon encountering
applicant’s mark BUDDY’S NATURAL CHICKEN for legally
identical goods, considering the goods will be offered in
the same trade channels and to the same class of consumers.
Finally, to the extent that there is any doubt on the issue
of likelihood of confusion, it is well settled that such
doubt must be resolved against applicant and in favor of
the prior user, registrant. In re Pneumatiques, Caoutchouc
Serial No. 76698852
9
Manufacture et Plastiques Kleber-Colombes, 487 F.2d 918,
179 USPQ 729 (CCPA 1973).
Decision: The examining attorney's refusal to register
under Section 2(d) is affirmed.