Crunchkins, Inc.

Trademark Trial and Appeal Board

May 31, 2012

No. 77777885 (T.T.A.B. May. 31, 2012)

Mailed:
May 31, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Crunchkins, Inc.
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Serial No. 77777885
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John G. Posa of Gifford, Krass, Sprinkle, Anderson &
Citowski, P.C. for Crunchkins, Inc.

Kim Teresa Moninghoff, Trademark Examining Attorney, Law
Office 113 (Odette Bonnet, Managing Attorney).
_______

Before Bucher, Grendel and Bergsman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Crunchkins, Inc. (“applicant”) filed an intent-to-use
application for the mark BITE ME, in standard character
form, for “pet food stuff, namely, edible greetings in the
form of panels, biscuits and chips,” in Class 31.1
The examining attorney refused registration under
Section 2(d) of the Trademark Act of 1946, 15 U.S.C.
§ 1052(d), on the ground that applicant’s mark, when used
in connection with the listed goods, so resembles the

1 Excerpts from websites selling applicant’s products identified
by the mark CRUNCHKIN’S CRUNCH CARDS show that applicant sells a
line of edible greeting cards for pets. (April 13, 2010 Office
action).
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 77777885
2
registered marks listed below as to be likely to cause
confusion. The three cited registrations are owned by two
different entities.
A. L. E. Smith Enterprises, LLC
1. Registration No. 3067913 for the mark BITE ME!
ALL NATURAL DOG TREATS, in standard character form, for
“animal foodstuffs; dog biscuits with all natural
ingredients,” in Class 31.2 Registrant disclaimed the
exclusive right to use “All Natural Dog Treats”; and
2. Registration No. 3067912 for the mark BITE ME!
ALL NATURAL DOG TREATS and design, shown below, for “animal
foodstuffs; dog biscuits with all natural ingredients,” in
Class 31.3 Registrant disclaimed the exclusive right to use
“All Natural Dog Treats”; and

B. Katina Mims
Registration No. 3358984 for the mark BITE ME PET
BOUTIQUE, in standard character form, for “retail stores

2 Issued December 20, 2005.
3 Issued December 20, 2005.

Serial No. 77777885
3
featuring pet goods, namely, pet beds, clothes, carriers,
collars, toys, fodd [sic] bowls, food, and spa items for
pets, gift items related to pets, and related pet
accessories,” in Class 35.4 Registrant disclaimed the
exclusive right to use the term “Pet Boutique.”
Our determination of likelihood of confusion 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. In re
E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973). See also, In re Majestic Distilling
Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed.
Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks
and the similarities between the goods and/or services.
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976).
A. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression and the strength of registrant’s
mark.

We turn first to the du Pont factor focusing on the
similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and

4 Issued December 25, 2007.
Serial No. 77777885
4
commercial impression. In re E. I. du Pont De Nemours &
Co., 177 USPQ at 567. In a particular case, any one of
these means of comparison may be critical in finding the
marks to be similar. In re White Swan Ltd., 8 USPQ2d 1534,
1535 (TTAB 1988); In re Lamson Oil Co., 6 USPQ2d 1041, 1042
(TTAB 1987). In comparing the marks, we are mindful that
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 overall
commercial impression so that confusion as to the source of
the goods offered under the respective marks is likely to
result. San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735,
1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir.
June 5, 1992). In making this determination, we must
consider the recollection of the average purchaser who
normally retains only a general, rather than a specific,
impression of the marks. Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106, 108 (TTAB 1975). In this case, the
average purchaser is a pet owner.
Serial No. 77777885
5
1. BITE ME! ALL NATURAL DOG TREATS5

The marks are similar because they both include the
term “Bite Me.” In fact, applicant’s entire mark, BITE ME,
is contained within registrant’s mark, BITE ME! ALL
NATURAL DOG TREATS. While the mere fact that the marks
share common elements does not compel us to find that the
marks are similar, it is a factor in comparing the overall
commercial impressions engendered by the marks as perceived
by consumers. See Helga, Inc. v. Helga Howie, Inc., 182
USPQ 629 (TTAB 1974) (junior party’s mark HELGA so
resembles the senior party’s mark HELGA HOWIE as to be
likely to cause confusion).
The common term in both marks, “Bite Me,” is the
dominant element of registrant’s mark because the term “All
Natural Dog Treats” is descriptive of “animal foodstuffs;
dog biscuits with all natural ingredients,” and, in fact,
registrant has disclaimed the exclusive right to use “All
Natural Dog Treats.” “There is nothing improper in stating
that, for rational reasons, more or less weight has been

5 For purposes of the likelihood of confusion analysis, we focus
our attention on registrant’s standard character form
registration for “animal foodstuffs; dog biscuits with all
natural ingredients.” If we do not find that registrant’s
standard character form mark is similar to applicant’s mark, then
there would not be a likelihood of confusion between registrant’s
composite mark and applicant’s mark. In re Max Capital Group
Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).

Formatted: Line spacing: single
Serial No. 77777885
6
given to a particular feature of a mark, provided that the
ultimate conclusion rests on consideration of the marks in
their entireties.” In re National Data Corporation,
753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
The significance of the term “Bite Me” as the dominant
element of registrant’s mark is further reinforced by its
location as the first part of the mark. See Presto
Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895,
1897 (TTAB 1988) (“it is often the first part of a mark
which is most likely to be impressed upon the mind of a
purchaser and remembered”). See also Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689,
1692 (Fed. Cir. 2005) (“Veuve” is the most prominent part
of the mark VEUVE CLICQUOT because “veuve” is the first
word in the mark and the first word to appear on the
label); Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992) (upon encountering the marks, consumers must first
notice the identical lead word).
When considering the marks BITE ME and BITE ME! ALL
NATURAL DOG TREATS in their entireties, we find that
consumers are likely to mistakenly believe that BITE ME!
ALL NATURAL DOG TREATS products are the “natural” products
of the BITE ME line of pet treats. Accordingly, we find
Serial No. 77777885
7
that the marks are very similar in terms of appearance,
sound, meaning and commercial impression.
2. BITE ME PET BOUTIQUE
The marks are similar because they both include the
term “Bite Me.” In fact, registrant’s mark, BITE ME PET
BOUTIQUE, incorporates the entirety of applicant’s mark.
The common term in both marks, “Bite Me,” is the
dominant element of registrant’s mark because the term “Pet
Boutique” is descriptive of “retail stores featuring pet
goods,” and, in fact, registrant has disclaimed the
exclusive right to use “Pet Boutique.”
The significance of the term “Bite Me” as the dominant
element of registrant’s mark is further reinforced by its
location as the first part of the mark.
When considering the marks BITE ME and BITE ME PET
BOUTIQUE in their entireties, we find that consumers are
likely to mistakenly believe that BITE ME PET BOUTIQUE
retail stores are the retail store services arm of the BITE
ME line of pet products. Accordingly, we find that the
marks are very similar in terms of appearance, sound,
meaning and commercial impression.
Serial No. 77777885
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B. The similarity or dissimilarity and nature of the
goods and services, channels of trade and classes of
consumers.

1. BITE ME! ALL NATURAL DOG TREATS for “animal
foodstuffs; dog biscuits with all natural
ingredients.”

Registrant’s mark BITE ME! ALL NATURAL DOG TREATS is
registered for “animal foodstuffs; dog biscuits with all
natural ingredients.” Applicant is seeking to register its
mark BITE ME for “pet food stuff, namely, edible greetings
in the form of panels, biscuits and chips.” The
descriptions of goods are very similar (“animal foodstuffs”
and “pet food stuff”) and, in fact, both include
“biscuits.” Thus, the products as identified in the
descriptions of goods are in part identical.
Because the goods are in part identical, we must
presume that the channels of trade and classes of
purchasers are the same. See In re Thor Tech Inc.,
90 USPQ2d 1634, 1639 (TTAB 2009); 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.”). See also In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there
was no evidence regarding channels of trade and classes of
Serial No. 77777885
9
consumers, the Board was entitled to rely on this legal
presumption in determining likelihood of confusion).
2. BITE ME PET BOUTIQUE for “retail stores featuring
pet goods, namely, pet beds, clothes, carriers,
collars, toys, fodd [sic] bowls, food, and spa
items for pets, gift items related to pets, and
related pet accessories.”

Registrant’s mark BITE ME PET BOUTIQUE is registered
for “retail stores featuring pet goods.” Applicant is
seeking to register its mark BITE ME for “pet food stuff,
namely, edible greetings in the form of panels, biscuits
and chips.” The products sold in registrant’s retail
stores, “pet goods,” is broad enough to include applicant’s
“pet food stuff” and, in fact, registrant includes “food”
as one of the products that it sells.
To show that the goods and services are related, the
examining attorney submitted copies of ten (10) use-based
third-party registrations that include both pet food and
retail store services in the field of pet goods, including
food. Third-party registrations which individually cover a
number of different services that are based on use in
commerce may have some probative value to the extent that
they serve to suggest that the listed services are of a
type which may emanate from the same source. In re Albert
Trostel & Sons Co., 29 USPQ2d at 1785-1786; In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
Serial No. 77777885
10
While there is no evidence regarding the channels of
trade and classes of consumers, it does not take a great
leap of logic to figure out that retail stores services in
the field of pet goods, including food and gift items
related to pets, and “pet food stuff namely, edible
greetings in the form of panels, biscuits and chips” would
be sold in the same channels of trade and appeal to the
same consumers. In this regard, confusion may be likely to
occur from the use of the same or similar marks for goods,
on the one hand, and for services involving those goods, on
the other. See, e.g., In re Hyper Shoppes (Ohio), Inc.,
837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988) (holding
BIGG’S (stylized) for retail grocery and general
merchandise store services and BIGGS and design for
furniture likely to cause confusion); In re H.J. Seiler
Co., 289 F.2d 674, 129 USPQ 347 (CCPA 1961) (holding
SEILER’s for catering services and SEILER’S for smoked and
cured meats likely to cause confusion); In re United Serv.
Distribs., Inc., 229 USPQ 237 (TTAB 1986) (holding mark

of right-facing silhouettes in a
teardrop used in connection with
distributorship services in the
field of health and beauty aids

Serial No. 77777885
11
and mark consisting of left-facing silhouettes in an oval
design used in connection with moisturizing skin cream
likely to cause confusion); In re Phillips-Van Heusen
Corp., 228 USPQ 949 (TTAB 1986) (holding 21 CLUB for
various items of clothing and the mark at
right for restaurant services, likely to

cause confusion); In re U.S. Shoe Corp., 229 USPQ 707 (TTAB
1985) holding the stylized CAREER IMAGE marks for retail
women’s clothing store services likely to cause confusion
with the stylized CREST CAREER IMAGES
mark for uniforms shown at right;
Steelcase Inc. v. Steelcare Inc., 219 USPQ 433 (TTAB 1983)
(holding STEELCARE INC. and design for refinishing of
furniture, office furniture, and machinery and STEELCASE
for office furniture and accessories, likely to cause
confusion); Corinthian Broad. Corp. v. Nippon Elec. Co.,
Ltd., 219 USPQ 733 (TTAB 1983) (holding TVS for
transmitters and receivers of still television pictures and
TVS for television broadcasting services likely to cause
confusion).
In view of the foregoing, we find that “pet food
stuff, namely, edible greetings in the form of panels,
biscuits and chips” are related to “retail stores featuring
pet goods, namely, pet beds, clothes, carriers, collars,
Serial No. 77777885
12
toys, fodd [sic] bowls, food, and spa items for pets, gift
items related to pets, and related pet accessories” and
move in the same channels of trade and are sold to the same
classes of consumers.
C. Balancing the factors.
The du Pont factors require to us to consider the
relevant factors for which evidence has been made of record
in likelihood of confusion cases.
1. BITE ME! ALL NATURAL DOG TREATS
In view of the fact that the marks are similar, the
goods are in part identical and the presumption that the
goods move in the same channels of trade and are sold to
the same classes of consumers, we find that applicant’s
mark BITE ME for “pet food stuff, namely, edible greetings
in the form of panels, biscuits and chips” so resembles the
mark BITE ME! NATURAL DOG TREATS for “animal foodstuffs;
dog biscuits with all natural ingredients” as to be likely
to cause confusion.
2. BITE ME PET BOUTIQUE
Because the marks are similar and the goods and
services are related, move in the same channels of trade
and are sold to the same classes of consumers, we find that
applicant’s mark BITE ME for “pet food stuff, namely,
edible greetings in the form of panels, biscuits and chips”
Serial No. 77777885
13
so resembles the mark BITE ME PET BOUTIQUE for “retail
stores featuring pet goods, namely, pet beds, clothes,
carriers, collars, toys, fodd [sic] bowls, food, and spa
items for pets, gift items related to pets, and related pet
accessories” as to be likely to cause confusion.
Decision: The refusals to register are affirmed.