Eagle Family Foods Group LLC

Trademark Trial and Appeal Board

Jan 7, 2021

88272173 (T.T.A.B. Jan. 7, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 7, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Eagle Family Foods Group LLC
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Serial No. 88272173
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Terrence H. Link II of Roetzel & Andress LPA,
for Eagle Family Foods Group LLC.
David I, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney.
_____

Before Thurmon, Deputy Chief Administrative Trademark Judge, and
Lykos and Johnson, Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:

Eagle Family Foods Group LLC (“Applicant”) seeks to register on the Principal
Register the standard character mark MONSTER POP for “Popped popcorn” in
International Class 30.1
Registration was refused under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s applied-for mark so resembles the

1 Application Serial No. 88272173, filed January 23, 2019 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
Citations to the prosecution history in the USPTO’s Trademark Status & Document Retrieval
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registered standard character mark MONSTER MUSHROOM POPCORN on the
Principal Register (“Registrant”) (MUSHROOM POPCORN disclaimed), for
“unpopped popcorn kernels” in International Class 30,2 that it is likely to cause
confusion or mistake or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration. The Trademark Examining Attorney maintained the refusal to
register and denied the request for reconsideration. The appeal is now fully briefed.3
We affirm.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on a likelihood of confusion. In re E. I. DuPont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003). We must consider each DuPont factor for which there is evidence and
argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-
63 (Fed. Cir. 2019). When analyzing these factors, the overriding concerns are not

(“TSDR”) database are to the downloadable .pdf version and identify documents by title and
date. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018).
2 Registration No. 4034276, registered October 04, 2011; “Combined Declaration of Use and
Incontestability under Sections 8 & 15” accepted and acknowledged.
3 Applicant’s submission with its appeal brief of materials previously made of record was
superfluous. See In re Allegiance Staffing, 115 USPQ2d 1319, 1323 (TTAB 2015) (practice of
attaching to appeal brief copies of the same exhibits submitted with responses is
discouraged). “It is of far more utility to the Board for the applicant and examining attorney
to provide citations directly to the record and, when there are a large number of attachments
to an Office action or response, to the specific page number where the attachment may be
found.” In re Sela Products LLC, 107 USPQ2d 1580, 1584 (TTAB 2013).
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only to prevent buyer confusion as to the source of the goods, but also to protect the
registrant from adverse commercial impact due to use of a similar mark by a
newcomer. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir.
1993).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The
fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks.”). We
discuss these factors and others below.
A. The Marks

This first DuPont likelihood of confusion factor involves an analysis of the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005) (citing DuPont, 177 USPQ at 567). “Similarity in any one of these elements may
be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126
USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 F. App’x (Fed. Cir. 2019). Accord
Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA
1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely
to cause confusion.”) (citation omitted)).
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“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) (citing and quoting in part Leading Jewelers
Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d 1901, 1905 (TTAB 2007)). Our
analysis is not predicated on dissecting the marks into their various components; that
is, our decision is based on a comparison of the entire marks, not just part of the
marks. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1161 (Fed. Cir. 2014); In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). Nonetheless, 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. Stone Lion, 110 USPQ2d at 1161 (citing In re Nat’l Data
Corp., 224 USPQ at 751).
Applicant argues that the “textual differences” between MONSTER POP and
MONSTER MUSHROOM POPCORN are readily apparent,”4 pointing to the obvious
distinctions in terms of sound and appearance. Focusing also on the different

4 Applicant’s Brief, p. 8; 8 TTABVUE 9.
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presentations in their respective sales and marketing, Applicant contends that its
applied for mark paired along with “whimsical monster characters and logos in bright
colors,” evokes “playful associations with fictional monsters,”5 whereas the cited mark
MONSTER MUSHROOM POPCORN refers to the large size and shape of the popcorn
kernels. On this basis, Applicant asserts that the connotation and commercial
impression of each mark diverge. In addition, Applicant argues that use of its applied-
for mark in conjunction with its previous registered house mark POPCORN
INDIANA for “popcorn”6 alters the connotation and commercial impression such that
prospective consumers will identify Applicant’s popcorn as associated with its
POPCORN INDIANA line of popcorn.
These arguments miss the point because they go beyond the marks at issue. In an
ex parte appeal, our analysis is based on the marks as depicted in the application and
cited registration without regard to whether the marks will appear with house marks
(whether previously registered or not) or other elements such as “whimsical monster
characters” when in actual use. See In re Shell Oil Co., 26 USPQ2d at 1690 n.4
(applicant’s arguments that the applied-for mark would appear with applicant’s

5 See Applicant’s Brief, pp. 11-12; 8 TTABVUE 12-13 and images of Applicant’s “MONSTER
POP” characters and Affidavit of Mala Wiedemann, Applicant’s Vice President of Marketing
¶ 13 (“The term MONSTER in Eagle’s MONSTER POP Mark refers to Eagle’s whimsical
monster characters depicted on packaging for the products, as shown in Exhibit A to the
Office Action response…”) submitted with Applicant’s Office Action Response, October 4,
2019, pp. 31-34.
6 Registration No. 3904072 issued January 11, 2011 for the mark POPCORN, INDIANA for
“popped popcorn” in International Class 30. See Applicant’s May 4, 2020 Request
Reconsideration p. 38 (photocopy of registration certificate). The better practice would have
been for Applicant to have submitted a printout from TSDR of its prior registration showing
current status and title.
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house mark were not considered in the likelihood-of-confusion determination); see
also In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB 2018) (“[W]e do
not consider how Applicant and Registrant actually use their marks in the
marketplace, but rather how they appear in the registration and the application. We
must compare the marks as they appear in the drawings, and not on any labels that
may have additional wording or information.”).
Thus our comparison involves a determination of whether Applicant’s MONSTER
POP mark is similar in appearance, sound, connotation and commercial impression
to the cited mark MONSTER MUSHROOM POPCORN, and nothing more. This
approach is used because the rights associated with a mark in standard characters
reside in the wording (or other literal element, e.g., letters, numerals, punctuation)
and not in any particular display. In re White Rock Distilleries Inc., 92 USPQ2d 1282,
1284 (TTAB 2009). As noted above, the cited mark is registered in standard
characters; likewise, Applicant seeks registration of its mark in that same format.
Registrant is entitled to use its mark in any stylization, so our focus is on the wording
and not on any extraneous designs or stylization that could be used. See In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1910 (Fed. Cir. 2012) (a registrant is entitled
to all depictions of a standard character mark regardless of the font style, size, or
color, and not merely “reasonable manners” of depicting such mark.).
With these principles in mind, we find that Applicant’s and Registrant’s marks
are similar in appearance, sound, meaning and commercial impression. Each mark
commences with the word MONSTER, a term which when considered in relation to
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the goods is arbitrary or at most suggestive of the size of the popcorn or kernels.
“Thus, upon encountering each mark, consumers must first notice this identical lead
word.” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d
1698, 1700 (Fed Cir. 1992) (finding similarity between CENTURY 21 and CENTURY
LIFE OF AMERICA); see also In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d
1047, 1049 (Fed. Cir. 2018); (finding “the identity of the marks’ two initial words is
particularly significant because consumers typically notice those words first”); Palm
Bay, 73 USPQ2d at 1692 (finding similarity between VEUVE ROYALE and two
VEUVE CLICQUOT marks in part because “VEUVE . . . remains a ‘prominent
feature’ as the first word in the mark and the first word to appear on the label”). As
such, consumers are likely to notice and remember the word MONSTER as used in
these marks.
In addition, only minimal evidence in the record supports Applicant’s argument
that consumers are likely to perceive MONSTER POP as a phrase with a distinct
connotation and commercial impression when compared with Registrant’s
MONSTER MUSHROOM POPCORN. In both marks, the word “monster” precedes a
noun, meaning that it is used in adjectival form. The word “monster” may denote
something oversized or excessive in size, a reference to the enormous size of the goods
or packaging.7 Another possible meaning is a reference to a fictional character. Both
interpretations by consumers are equally plausible. For this reason, it is likely that

7 See definition of “monster” from MERRIAM-WEBSTER DICTIONARY (www.merriam-
webster.com) submitted with Applicant’s October 4, 2019, Office Action Response, pp. 36-37.
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consumers may perceive Applicant’s standard character mark MONSTER POP as a
product line extension of the cited mark MONSTER MUSHROOM POPCORN based
on their similar connotations and commercial impressions as evoking unpopped
popcorn kernels and popped popcorn that are oversized or sold in oversized packages
or as referring to a fictional character. Applicant’s and Registrant’s marks therefore
engender similar connotations and commercial impressions as well.
In sum, although we have pointed to the identical lead word “MONSTER” used in
both marks, we acknowledge the fundamental rule that the marks must be
considered in their entireties. See Jack Wolfskin Ausrustung Fur Draussen GmbH &
Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1134
(Fed. Cir. 2015); Massey Junior Coll., Inc. v. Fashion Inst. of Tech., 492 F.2d 1399,
181 USPQ 272, 273-74 (CCPA 1974). We note the specific differences pointed out by
Applicant. These differences, however, are outweighed by the similarities of the
marks. For example, the words that follow MONSTER in the marks are at least
suggestive or merely descriptive of the goods, making it less likely that consumers
will notice and rely on those words to identify and distinguish the two products. Thus,
when comparing the marks overall, they are similar in sound, meaning, connotation
and overall commercial impression. Consumers, focusing on the first shared common
element, are likely to perceive the applied-for mark as a modification of the cited
mark. The similarity of the marks weighs in favor of finding a likelihood of confusion.
B. Strength of the Cited Mark
In determining the strength of a mark, we consider both its inherent strength,
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based on the nature of the mark itself, and, if there is evidence in the record of
marketplace recognition of the mark, its commercial strength. See In re Chippendales
USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength
is measured both by its conceptual strength (distinctiveness) and its marketplace
strength (secondary meaning).”); Top Tobacco, L.P. v. N. Atl. Operating Co., 101
USPQ2d 1163, 1171-72 (TTAB 2011) (the strength of a mark is determined by
assessing its inherent strength and its commercial strength); Tea Bd. of India v.
Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006); 2 J. Thomas McCarthy,
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:83 (5th ed. June 2018
update) (“The first enquiry focuses on the inherent potential of the term at the time
of its first use. The second evaluates the actual customer recognition value of the
mark at the time registration is sought or at the time the mark is asserted in
litigation to prevent another’s use.”).
Applicant postulates that the term MONSTER in the cited registration is entitled
to only a narrow scope of protection. In this case, Applicant has introduced no
evidence (e.g., third-party uses) pertaining to the diminished commercial strength of
the cited mark. Rather, Applicant challenges the inherent or conceptual strength of
the MONSTER component of the cited mark as highly suggestive of product size. In
support thereof, Applicant points to the dictionary definition of “monster” as “a thing
or animal that is excessively or dauntingly large”, as in “monster of a book”, or
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“monster truck”8 as well as Registrant’s promotional materials highlighting the
oversized nature of its goods.9 Based on this evidence, Applicant contends that the
cited mark MONSTER MUSHROOM POPCORN is entitled to only a narrow scope of
protection.
The inherent or conceptual strength of Registrant’s mark is not seriously at issue.
It is inherently distinctive as evidenced by its registration on the Principal Register
without a claim of acquired distinctiveness under Section 2(f) of the Trademark Act.
Tea Bd. of India, 80 USPQ2d at 1889. See also New Era Cap Co., Inc. v. Pro Era, LLC,
2020 USPQ2d 10596, 2020 BL 203555 (TTAB 2020). Registrant’s registration is
“prima facie evidence of the validity of the registered mark ....’’ Section 7(b) of the
Trademark Act, 15 U.S.C. § 1057(b). Furthermore, the record is devoid of evidence
that MONSTER is a term of art in the popcorn or unpopped kernel industry. In the
absence of such evidence, third-party registrations alone may be relevant, in the
manner of dictionary definitions, “to prove that some segment of the [marks] has a
normally understood and well recognized descriptive or suggestive meaning, leading
to the conclusion that that segment is relatively weak.” Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (internal
quotation marks omitted). See also Jack Wolfskin, 116 USPQ2d at 1135-36. Here,
however, we have no third-party registration evidence that might demonstrate the

8 See definition of “monster” from MERRIAM-WEBSTER DICTIONARY (www.merriam-
webster.com) submitted with Applicant’s October 4, 2019, Office Action Response, pp. 36-37.
9 See Registrant’s website excerpts describing goods as “Colossal-sized corn for colossal-sized
profits!” submitted with Applicant’s October 4, 2019, Office Action Response, p. 35.
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inherent weakness of this element of the cited mark as a source identifier. Thus, on
this record, the cited mark MONSTER MUSHROOM POPCORN and MONSTER
component thereof for the identified goods is conceptually strong, and Applicant has
not shown that the mark has been weakened.
C. The Goods
Next we compare the goods as they are identified in the involved application and
cited registration, the second DuPont factor. See In re Detroit Athletic Co., 128
USPQ2d at 1052; Stone Lion, 110 USPQ2d at 1161; Octocom Sys., Inc. v. Hous.
Comput. Servs. Inc., 98 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002).
The goods need not be identical or even competitive to find a likelihood of confusion.
On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed.
Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir.
2000). They need only be “related in some manner and/or if the circumstances
surrounding their marketing are such that they could give rise to the mistaken belief
that the goods emanate from the same source.” Coach Servs., Inc. v. Triumph
Learning LLC, 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d
1715, 1724 (TTAB 2007)).
Evidence of relatedness may include news articles and/or evidence from computer
databases showing that the relevant goods are used together or used by the same
purchasers; advertisements showing that the relevant goods are advertised together
or sold by the same manufacturer or dealer; and/or copies of prior use-based
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registrations of the same mark for both applicant’s goods and the goods listed in the
cited registration. See, e.g., In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014) (finding
pepper sauce and agave related where evidence showed both were used for the same
purpose in the same recipes and thus consumers were likely to purchase the products
at the same time and in the same stores).
Applicant contends that no presumption can be made that food items are per se
related, pointing to the fact that the cited registration covers only “unpopped popcorn
kernels” while the identified goods in its application consist of “popped popcorn.” As
Applicant explains, its goods are sold in popped form as a ready-to-eat snack in
“small, colorful snack-size or family-size bags” with parents as its target market10
whereas Registrant’s goods are sold in unpopped form, and must be prepared and
cooked prior to use.11
The distinction Applicant points to regarding the goods is not particularly
meaningful. The fact that one set of goods can be eaten without preparation while the
other must be prepared is not of major significance. Thus based on the identifications
alone we conclude that the goods are intrinsically related.
More importantly, the record unequivocally shows that Applicant’s “popped
popcorn” and Registrant’s “unpopped popcorn kernels” are in fact related. The
Examining Attorney submitted use-based, valid and subsisting, third-party
registrations to show that the goods are related insofar. The following registrations

10 See Affidavit of Mala Wiedemann, at ¶¶ 3-4, 6-7, 8 and 10 submitted with Applicant’s
Office Action Response, October 4, 2019, pp. 32-34.
11 See id.
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show “popped popcorn” and “unpopped popcorn” identified under the same registered
mark: Registration Nos. 5136637, 5530857, 5190158, 5402820, 5592891, 5275451,
5410336, 5373949, 5480736, 5614788, 5540049, 5840816, and 5848543.12 As a general
proposition third-party registrations that cover goods from both the cited registration
and an Applicant’s application are relevant to show that the goods are of a type that
may emanate from a single source under one mark. See, e.g., Detroit Athletic, 128
USPQ2d at 1051; Hewlett-Packard, 62 USPQ2d at 1004; In re Infinity Broad. Corp.,
60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470
n.6 (TTAB 1988). Just as we must consider the full scope of the goods as set forth in
the application and registration under consideration, we must consider the full scope
of the goods described in a third-party registration. Because the benefits of
registration are commensurate with the scope of the goods specified in the certificate
of registration, these third-party registrations broadly delineating goods as
“unpopped popcorn” are presumed to encompass all types of “unpopped popcorn,”
including the “unpopped popcorn kernels” identified in the cited registration. See
Stone Lion, 110USPQ2d at 1161. See also In re Country Oven, Inc., 2019 USPQ2d
443903, *5-6 (TTAB 2019) (the terms “bakery goods” and “bakery products” in third-
party registrations were sufficiently broad to encompass “bread buns.”).
The Examining Attorney also submitted business-to-consumer (“B2C”) website
evidence demonstrating that it is not uncommon for third-party entities such as Jolly

12 See November 4, 2018 Office Action, pp. 7-63.
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Time, Orville Reddenbacher, Lotta Pop Popcorn, Nuts.com, and Farmer Jon’s
Popcorn to manufacture and offer for sale popped and unpopped popcorn kernels
under the same trademark.13 This evidence shows that consumers may expect to find
Applicant’s and Registrant’s products as identified in the involved application and
cited registration as emanating from a common source under a single brand name.
We therefore find that the goods are closely related. Accordingly, this DuPont
factor also supports a finding of a likelihood of confusion.
D. The established, likely-to-continue channels of trade and classes of
consumers

Next we consider the established, likely-to-continue channels of trade, the third
DuPont factor. Applicant, argues that the evidence shows that the involved goods are
typically sold at different outlets and through different trade channels to different
classes of consumers.14 Applicant presented evidence that its goods are distributed in
retail grocery stores and convenience store in “small, colorful bags to retail
consumers, specifically parents”;15 whereas Registrant’s goods are sold wholesale in
50-pound bags to theatre operators and other commercial and business-to-business
customers.16 Applicant emphasizes that Registrant’s goods are sold wholesale, in

13 See excerpts from https://www.jollytime.com; https://www.orville.com;
https://tinybutmightyfoods.com; https://www.lottapop.com; https://nuts.com;
https://farmerjonspopcorn.com; submitted with November 4, 2019 Office Action, pp. 63-92
and June 3, 2020 Denial of the Request for Reconsideration, pp. 2-46.
14 See Affidavit of Mala Wiedemann at ¶¶ 4, 5, 7, 8, 9, and 11 submitted with Applicant’s
Office Action Response, October 4, 2019, pp. 32-34.
15 See id. at ¶¶ 11 and 12.
16 See Registrant’s website excerpts describing goods as “Colossal-sized corn for colossal-sized
profits! Our Monster Mushroom Popcorn® #2031 is the industry leader, making it ideal for
caramel corn and kettle corn operators. Make sure to add this corn to your kettle corn
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bulk, to commercial and business customers, while Applicant does not sell its goods
to wholesalers or commercial distributors.17
Applicant is impermissibly reading limitations into both its own and Registrant’s
identification of goods. Applicant’s evidence that the goods are sold in mutually
exclusive trade channels, therefore, is unpersuasive. Determining likelihood of
confusion is based on the description of the goods stated in the application and
registration at issue, not on extrinsic evidence of actual use. In re Detroit Athletic Co.,
128 USPQ2d at 1052. Because the identifications contain no restrictions as to
channels of trade, or classes of purchasers, we must presume that the identified goods
travel in the ordinary channels of trade for such goods. See Genesco Inc. v. Martz, 66
USPQ2d 1260, 1268 (TTAB 2003). This could include, for both sets of goods, wholesale
and retail trade channels such as movie theater chains or retail grocery stores. We
must therefore conclude that the trade channels overlap and that the goods may be
encountered by the same consumers, namely purchasers seeking popped or unpopped
popcorn kernels. As such, the DuPont factor regarding the similarity or dissimilarity
of established, likely-to-continue trade channels also favors a likelihood of confusion.
E. Actual Confusion
Next, we address Applicant’s arguments that the lack of actual confusion, the

machine or caramel corn maker,” submitted with Applicant’s October 4, 2019, Office Action
Response, p. 35.
17 See Affidavit of Mala Wiedemann, at ¶¶ 7 and 11 submitted with Applicant’s Office
Action Response, October 4, 2019, pp. 33-34.
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eighth DuPont factor, weighs heavily against a finding of likelihood of confusion.
Applicant’s first argument under this DuPont factor concerns its purported actual
use of its mark in interstate commerce. Although the involved application was filed
under Section 1(b), Applicant asserts that since it commenced use in commerce of its
mark “as early as January 16, 2020, [it] is not aware of any actual confusion.”18
Applicant’s mere observation, without more, is insufficient for us to conclude that
there has been no actual confusion between Applicant’s and Registrant’s marks. The
record is devoid any specifics regarding the geographic scope of the sale and
distribution of Applicant’s and Registrant’s goods. See In re Guild Mtg. Co., 2020
USPQ2d 10279, *6 (TTAB 2020) (“The eighth du Pont factor . . . — ‘[t]he length of
time during and conditions under which there has been concurrent use without
evidence of actual confusion,’ see du Pont, 177 USPQ at 567 — requires us to look at
actual market conditions, to the extent there is evidence of such conditions of
record.”).19 See also In re Calgon Corp., 435 F.2d 596, 168 USPQ 278, 280 (CCPA

18 Applicant’s Brief, p. 21; 8 TTABVUE 21.
19 In contrast to the case before us, in Guild Mortg., the Board was able to analyze the
purported lack of any actual confusion because the applicant in that case submitted a
declaration from the applicant’s president attesting to the extent of the applicant’s use of its
mark. In addition, the applicant submitted evidence regarding the registrant’s business.
However, neither the testimony, nor the evidence, provided any specifics regarding the
geographic extent or overlap of applicant’s or registrant’s services. Guild Mortg., 2020
USPQ2d 10279 at *7. In addition, the Board noted “there has been no opportunity to hear
from Registrant about whether it is aware of any reported instances of confusion. We
therefore are getting only half the story.” Id., citing In re Opus One, Inc., 60 USPQ2d 1812,
1817 (TTAB 2001) (“The fact that an applicant in an ex parte case is unaware of any instances
of actual confusion is generally entitled to little probative weight in the likelihood of confusion
analysis, inasmuch as the Board in such cases generally has no way to know whether the
registrant likewise is unaware of any instances of actual confusion, nor is it usually possible
to determine that there has been any significant opportunity for actual confusion to have
occurred.”) (citations omitted).
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1971). Without evidence regarding any possible overlap in sale of the goods, we are
unable to make a determination based on Applicant’s purported use of its mark.
Applicant’s second argument under this DuPont factor pertains to a consumer
survey Applicant commissioned from Ford Bubala & Associates “following the
reliable methodology recognized by courts for such surveys since Union Carbide Corp.
v. Ever-Ready, Inc. (531 F.2d 366), in order to assess the propensity for actual
confusion between its Mark and the Cited Mark.”20 Applicant argues that the survey
results “indicate overwhelmingly that consumers simply do not see Applicant’s Goods
as originating from Cited Registrant”21 because zero instances of consumer confusion
were reported. The survey universe consisted of 100 “males and females 18 years of
age or older, residents of the United States; likely to purchase popcorn within the
next 3 months.”22 After being screened for age, gender and geographic location within
the United States, the participants were shown images of Applicant’s goods “utilizing
Applicant’s Mark and Applicant’s related logos, trade dress, and packaging (as shown
in part on Exhibits A and E attached hereto), and then were asked what company or
companies produced the product shown. Not a single respondent answered that
Applicant’s MONSTER POP product comes from Cited Registrant.”23
“When the percentage results of a confusion survey dip below 10%, they can
become evidence which will indicate that confusion is not likely.” Mini Melts, Inc. v.

20 See May 4, 2020 Request for Reconsideration, pp. 37-53.
21 Applicant’s Brief, p. 22; 8 TTABVUE 23.
22 See May 4, 2020 Request for Reconsideration, p. 55.
23 Applicant’s Brief, pp. 22-23; 8 TTABVUE 24-25.
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Reckitt Benckiser LLC, 118 USPQ2d 1464, 1477 (TTAB 2016) (quoting J.T. McCarthy,
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, § 32:189 (4th ed. March
2016)). While “[t]he Board may be somewhat more lenient in its approach in the
consideration of surveys in ex parte proceedings than inter partes proceedings,”
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE § 1208 (June 2020), the
Board is nonetheless obligated to consider the survey methodology in order to assess
its probative value. In this instance, we have no information regarding how the
sample was selected. Compare In re Country Music Ass’n, Inc., 100 USPQ2d 1824,
1831 (TTAB 2011) (survey sample “based on a random digit probability sample of
computer-generated phone numbers derived from all working telephones in the
continental United States and based on a representative sample of the U.S.
population.”) with In re Van Valkenburgh, 97 USPQ2d 1757, 1767 (TTAB 2011)
(finding “no basis on which to conclude that the survey is based on scientifically valid
principles” where the survey consisted of questionnaires distributed to an unknown
number of people who filled them out and mailed them back to applicant’s counsel).
More problematic however is that the survey respondents were not shown as a basis
for comparison Applicant’s and Registrant’s standard character marks as they appear
on the drawing page and registration certificate; rather, they were shown images of
the product packaging, including the following:24

24 The record does not clearly specify all product packaging images shown to survey
participants. However, as noted below, it is clear from the questions posed that participants
were directed to review product package images and not the applied-for and cited marks.
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Serial No. 88272173
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The key survey questions were as follows:
In this survey, you are going to be shown a picture of a
package of popcorn. …Please look at the package of popcorn
shown below as if you were considering purchasing it.
Please take as much time as you like looking at the package
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of popcorn before continuing with the survey questions. …
Who or what company do you believe puts out this package
of popcorn? … What other brands, if any, are made or put
out by whoever you believe puts out this package of
popcorn.25

It is clear that all the survey questions were based solely on the product
packaging and not the marks themselves. Cf. In re E.I. Kane, Inc., 221 USPQ 1203,
1206 (TTAB 1984) (“[T]he survey asked the wrong question. The issue is not whether
the term ‘Office Movers’ identifies a specific company. Rather, it is whether the term
‘OFFICE MOVERS, INC.’ identifies services which emanate from a single source.”).
Unlike federal court infringement litigation, in Board proceedings marks are
compared as they appear in the drawing of the application and in the registration not
how they are actually used in the marketplace. See In re Aquitaine Wine USA, LLC,
126 USPQ2d 1181, 1186 (TTAB 2018) (citing In re i.am.symbolic, llc, 866 F.3d 1315,
1324, 123 USPQ2d 1744, 1749 (Fed. Cir. 2017)). The survey framed the questions to
direct the participants to focus on the product packaging.26 While this approach may
be proper in infringement litigation, it brings in too many extraneous factors to be
relevant to this ex parte appeal.

25 See May 4, 2020 Request for Reconsideration, pp. 51-56.
26 We note that the stimuli presented in the survey also contained other information about
the goods not reflected in the identifications. For example, the sample of the cited mark shows
a 50-pound bag, while the sample of Applicant’s mark shows a 0.5 ounce (or 15g) product.
That is an enormous difference, with one product weighing 1,600 times more than the other
does. Given this sort of information, it is not surprising that survey participants believed the
products came from different sources.
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Given the absence of relevant evidence, we give this DuPont factor no weight in
our analysis.
F. Applicant’s Intent
The thirteenth and final DuPont factor pertains to “any other established fact
probative of the effect of use.” DuPont, 177 USPQ at 567, such as an applicant’s
intent. Applicant, without pointing to any evidence, argues that it applied to register
its mark without any predatory intent, and did not adopt it to trade on anyone’s
reputation, including that of the owner of the cited registration.
Issues regarding an applicant’s intent generally are not suited to disposition in an
ex parte appeal. That being said, even if we were to consider Applicant’s assertions,
good faith adoption of a mark that is similar to a prior registered mark, for use on the
same or similar goods, cannot overcome the presumption of validity that inheres in
the prior registered mark. 15 U.S.C. § 1057(b). See Miles Labs. Inc. v. Naturally
Vitamin Supplements Inc., 1 USPQ2d 1445, 1455 (TTAB 1986) (“[A]pplicant is not in
any case absolved from the duty imposed by our trademark law on all late-comers to
select marks for their new products that are sufficiently distinguishable from marks
in respect of which others have federally recorded superior rights to prevent
confusion.”). Thus, “[w]hile evidence of bad faith adoption typically will weigh against
an applicant, good faith adoption typically does not aid an applicant attempting to
establish no likelihood of confusion.” Apple Comput. v. TVNET.net Inc., 90 USPQ2d
1393, 1398 n.7 (TTAB 2007) (citing J & J Snack Foods Corp. v. McDonald’s Corp.,
932 F.2d 1460, 18 USPQ2d 1889, 1891 (Fed. Cir. 1991)).
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We therefore deem this factor neutral.
G. Balancing the Factors
We have carefully considered all of the evidence made of record, as well as all of
the arguments related thereto. With similar marks and closely related goods
marketed in the same trade channels to the same category of consumers, prospective
consumers are likely to confuse the source of the involved goods. On this record, the
evidence does not show that the cited mark or MONSTER component has been
weakened; nor do we have sufficient evidence of actual confusion to tip the balance in
favor of no likelihood of confusion.
Decision: The Section 2(d) refusal is affirmed.