Justin’s, LLC

Trademark Trial and Appeal Board

Sep 29, 2018

No. 87232416 (T.T.A.B. Sep. 29, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: September 29, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Justin’s, LLC
_____

Serial Nos. 87232416 and 87235447
_____

John Pickerill and Cynthia Moyer of Fredrikson & Byron P.A.,
for Justin’s, LLC.
Kristin Williams, Trademark Examining Attorney, Law Office 105,
Jennifer L. Williston, Managing Attorney.
_____

Before Cataldo, Taylor and Wolfson,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Justin’s LLC (“Applicant”) seeks registration on the Principal Register of the
standard character mark JUSTIN’S for “processed nuts” in International Class 29
(Serial No. 87232416 or “‘416 application”)1 and “nut-based food bars” in

1 Application Serial No. 87232416 was filed on November 10, 2016, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
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International Class 29 (Serial No. 87235447 or “‘447 application”).2 Applicant, in both
applications, claimed ownership of prior registrations for the mark JUSTIN’S, Nos.
3612195 and 4719797. Applicant also claimed ownership of Registration No. 4769287
for the mark JUSTIN’S in the ‘416 application and Registration No. 4953636 for the
mark JUSTIN’S in the ‘447 application.
The Trademark Examining Attorney refused registration of Applicant’s mark in
each application under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the
ground that Applicant’s mark is likely to be confused with the standard character
mark in Registration No. 4120878, JUSTIN, for, in relevant part, “chocolate and
chocolates” in International Class 30.3 When the refusals were made final, Applicant
filed an appeal and requested reconsideration in each case. Both requests for
reconsideration were denied and the two proceedings were resumed. Applicant filed
a brief in each proceeding and, thereafter, application Serial Nos. 86356569 and
86356608 were consolidated for the remaining briefs. For the reasons discussed
below, we affirm.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
For the first time with its appeal brief, Applicant submitted status and title copies of

2 Application Serial No. 87235447 was filed on November 14, 2016, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
3 Registered April 3, 2012; Section 8 & 15 Affidavits accepted and acknowledged. The
registration includes other goods in other classes that were not asserted as a bar to the
registration of Applicant’s marks.
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nineteen registrations for the mark JUSTIN’S and marks containing the term
JUSTIN’S, and asserted arguments based on these registrations. The Examining
Attorney objects to this evidence, and the arguments based thereon, arguing that they
are untimely. We sustain the objection to this new evidence, as Trademark Rule
2.142(d) provides that the record “should be complete prior to the filing of an appeal.”
37 C.F.R. § 142(d). See In re Midwest Gaming & Entertainment LLC, 106 USPQ2d
1163, 1165 n.3 (TTAB 2013) (new evidence submitted with brief is “untimely and
therefore not part of the record for this case”). Accordingly, we give no further
consideration to these untimely registrations or any arguments based solely on
them.4
II. Applicable Law
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under § 2(d) is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). 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 Paper Co., 544 F.2d

4 The proper method for Applicant to introduce additional evidence is to request suspension
of the proceeding and remand of the application for further examination. See Trademark Rule
2.142(d), 37 C.F.R. § 2.142(d).
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1098, 192 USPQ 24 (CCPA 1976). We discuss below these and other relevant factors.
See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947
(Fed. Cir. 2006) (even within du Pont list, only factors that are “relevant and of
record” need be considered).
III. Likelihood of Confusion Analysis
A. Similarity/Dissimilarity of the Marks
We first turn to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks, and compare the marks, as we must, in their
entireties in terms of appearance, sound, meaning and commercial impression. See
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin En 1722, 396 F.3d 1369, 73
USPQ2d 1689, 1691 (Fed. Cir. 2005). Applicant’s mark JUSTIN’S is virtually
identical to Registrant’s cited mark JUSTIN, differing only by the concluding
“apostrophe S,” that may be viewed as the possessive form of JUSTIN. The absence
of the possessive form in the cited mark JUSTIN has little, if any, significance for
consumers in distinguishing it from Applicant’s mark. See, e.g., In re Binion, 93
USPQ2d 1531, 1534 (TTAB 2009) (citing Wilson v. Delaunay, 245 F.2d 877, 114
USPQ 339, 341 (CCPA 1957); Georgia-Southern Oil Inc. v. Richardson, 16 USPQ2d
1723, 1725 (TTAB 1990).
We are unpersuaded by Applicant’s contention that the “apostrophe S” changes
the commercial impression of the marks. Instead, we find that the common element
in both marks, JUSTIN, is likely to be viewed by consumers as a given name and, as
just stated, adding the “apostrophe S” merely transforms the name JUSTIN into its
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possessive form. Moreover, adding or deleting matter from a registered mark
generally does not obviate the similarly between the marks. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004).
We accordingly find that the marks, in their entireties, are virtually identical in
appearance, sound, connotation and commercial impression, and this du Pont fact
strongly favors a finding of likelihood of confusion.
B. The Goods/Channels of Trade/Classes of Purchasers
We turn then to the goods, keeping in mind that the greater the degree of
similarity between Applicant’s mark and the cited mark, the lesser the degree of
similarity between Applicant’s and Registrant’s goods that is required to support a
finding of likelihood of confusion. In re Opus One, Inc., 60 USPQ2d 1812, 1815 (TTAB
2001); In re Concordia International Forwarding Corp., 222 USPQ 355, 356 (TTAB
1983). It is well settled that the goods of Registrant and Applicant need not be
identical or competitive, or even be offered through the same channels of trade, to
support a holding of likelihood of confusion. It is sufficient that the respective goods
are related in some manner, and/or that the conditions and activities surrounding the
marketing of the goods are such that they would or could be encountered by the same
persons under circumstances that could, because of the similarity of the marks, give
rise to the mistaken belief that they originate from the same source. See Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d. 1356, 101 USPQ2d 1713, 1723 (Fed. Cir.
2012); Hilson Research, Inc. v. Society for Human Resource Management, 27 USPQ2d
1423 (TTAB 1993). The issue here, of course, is not whether purchasers would confuse
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the goods, but rather whether there is a likelihood of confusion as to the source of
these goods. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel
Inc., 223 USPQ 830 (TTAB 1984).
In making our determination regarding the similarity or relatedness of the goods,
we must look to the goods as identified in the application and the cited registrations.
See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Houston Computers Servs.,
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Giovanni Food Co.,
97 USPQ2d 1990, 1991 (TTAB 2011).
Applicant’s goods are identified as “processed nuts” [‘416 application] and “nut-
based food bars” [‘447 application] and Registrant’s goods are identified as “chocolate
and chocolates.” The Examining Attorney maintains that the goods are related
because they are all edible snack items that are commonly manufactured by the same
entity and sold through the same trade channels to the same classes of consumers.
In support of her position, the Examining Attorney has made of record web pages
from various commercial websites showing use by the same entity of the same mark
for both processed nuts and/or nut-based food bars and chocolate and chocolates, or
showing these goods being sold together in bulk on the same entity’s website, and
web pages showing food items, including “processed nuts” and “nut-based based bars”
that incorporate chocolate as a key ingredient.5 A synopsis of the evidence follows:

5 The Examining Attorney has also made of record Internet evidence purportedly
demonstrating that Applicant’s goods are provided through the same trade channels and to
the same classes of consumers as those of Registrant, by showing that they are sold under
category headings including candy and chocolate. February 22, 2019 Denial of Request for
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1. Internet Excerpts Showing Relatedness of the Goods as to Serial No. 872324166
• Balducci’s (http://www.balduccis.com)7 showing
processed nuts and chocolate sold under the
BALDUCCI’S mark;
• Enzo’s Table (http//enzostable.com)8 showing
processed nuts and chocolates sold together, in bulk,
on the Enzo’s Table website;
• Great Nuts (http://www.greatnuts.com)9 showing
processed nuts and chocolate sold together, in bulk,
on the GREAT NUTS website;
• Dove (https://www.dovechocolate.com)10 showing
chocolate covered nuts sold under the DOVE mark;
• TerriLynn (https://www.terrilynnstore.com)11
showing processed nuts and chocolate sold together,
in bulk, on the TerriLynn website;
• Rocky Mountain Chocolate Factory
(https://www.rmcf.com)12 showing processed nuts as
a key ingredient in chocolates sold under the

Reconsideration, TSDR 5-9. However, none of the products shown in those web pages are for
the goods at issue in this consolidated proceeding. Accordingly, this evidence does not support
the Examining Attorney’s contention. Citations are to the record in application Serial No.
87232416 unless otherwise noted, and are to the downloadable .pdf format.
6 We have not relied on the web pages of Nut Creations because they do not show goods of a
type identified in both Applicant’s applications and the cited registration.
In addition, we note that there are no other trademarks associated with the referenced bulk
sale goods.
7 March 6, 2017 Office Action, TSDR 9-11. Complete URLs may be found in the response and
cited TSDR records. Citations are to the record in application Serial No. 87232416 unless
otherwise noted, and are to the downloadable .pdf format.
8 Id. at 12-15.
9 August 9, 2017 Office Action, TSDR 7-20.
10 Id. at 21-24
11 Id. at 25-29
12 Id. at 30-32.
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ROCKY MOUNTAIN CHOCOLATE FACTORY
mark;
• Half Nuts (https://halfnuts.net/)13 showing
processed nuts and chocolate sold together, in bulk,
on the Half Nuts website;
• Nifty Nut House (http://niftynuthouse.com)14
showing processed nuts, chocolate and chocolates
sold under the NIFTY NUT HOUSE mark;
• Fastachi (https://www.fastachi.com)15 showing
processed nuts and chocolates, with and without
nuts, and sold together, in bulk, on the Fastachi
website; and
• Georgia’s (https://shopgeorgianut.com)16 showing
processed nuts and chocolates, with and without
nuts, and sold together, in bulk, on the Georgia’s
website.
2. Internet Excerpts Showing Relatedness of the Goods as to Serial No. 87235447
• Larabar (http://www.larabar.com)17 showing nut-
based food bars, with and without chocolate, and
chocolates sold under the LARABAR mark;
• Simply Nature (http//www.fooducate.com)18
showing fruit and nut bars and chocolate sold under
the SIMPLY NATURE mark;
• Brookside (http://www.brooksidechocolate.com)19
showing nut-based bars, with and without chocolate,

13 Id. at 33-43.
14 Id. at 44-49.
15 Id. at 50-57.
16 Id. at 58-63.
17 March 6, 2017 Office Action (‘447 application), TSDR 8-9.
18 Id. at 10-11.
19 Id. at 12-15.
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and chocolates, with and without nuts, sold under
the BROOKSIDE mark;
• Kind (www.kindsnacks.com)20 showing nut-based
bars with chocolate sold under the KIND mark;
• Skinny Cow (https://skinnycow.com)21 showing,
inter alia, a peanut butter-based candy bar and
chocolates sold under the SKINNY COW mark;
• Special K (https://specialk.com)22 showing, inter
alia, nut-based bars, with and without chocolate sold
under the SPECIAL K mark;
• Vega (htttps://www.myvega.com)23 showing, inter
alia, nut-based meal bars, with and chocolate, sold
under the VEGA mark; and
• Aloha (https://www.aloha.com)24 showing, inter alia,
nut-based bars and chocolate sold under the ALOHA
mark.
We find this evidence sufficient to show that Applicant’s processed nuts and nut-
based food bars are related to Registrant’s chocolate and chocolates, such goods all
being comestible snack items that are often sold by the same source under the same
mark. The fact that Balducci’s and Enzo’s Table offer additional goods does not lessen
the persuasive value of the evidence relating to those entities. We also find that
Applicant’s broadly worded “processed nuts” and “nut-based food bars” could include
those with chocolate as a key ingredient, which could be supplied by Registrant.

20 August 9, 2017 Office Action (‘447 application), TSDR 7-15.
21 Id. at 17-25.
22 Id. at 26-34.
23 Id. at 35-45.
24 Id at 46-54.
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Accordingly, we find the respective goods related and complementary for purposes of
our likelihood of confusion analysis.
Furthermore, because there are no limitations as to channels of trade or classes
of purchasers in Applicant’s or Registrants’ identifications of goods, we must presume
that Applicant's and Registrants’ goods move, or will move, in all channels of trade
usual for these goods, including online and in grocery stores and other stores where
food items are sold, such as Target and Harris Teeter, and are, or will be, purchased
by the usual classes of purchasers which, in this case, include ordinary consumers.
See In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re
Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992).
We are not persuaded by Applicant’s arguments to the contrary. Applicant
particularly argues that the fact that both its goods and the registered goods are
“edible snack items” is not sufficient to find the respective goods closely related. As
stated, the respective goods are related in that they comprise complementary
ingredients often found together in snack items. And, while neither Applicant’s
“processed nuts” nor “nut-based food bars,” as identified, reference “chocolate” as a
key ingredient, the wording in Applicant’s identifications is broad enough to
encompass nuts that have been processed in a manner that results in chocolate
covered nuts or nut-based food bars that include chocolate as an ingredient which, as
stated, could be supplied by Registrant. Such goods are thus complementary in
nature. Our finding is not at odds with Walker Baker & Co. Ltd. v. H. W. Clark Biscuit
Co., 3 USPQ 244 (Comm’r 1929), relied upon by Applicant, which found that:
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biscuits and crackers evidently are not of the same
descriptive properties as cocoa, chocolate, broma, and cocoa
preparations. The registrant’s goods may or may not
contain the petitioner’s goods. But evidently a trade mark
for an element may not exclude the use by others of the
same mark for the various articles in which the element
may be included.
Unlike in Walker Baker, we are not finding the goods related solely because
Registrant’s chocolate could be used as an ingredient in Applicant’s goods. Rather, we
find them complementary not only because they may be used together, but also
because they may be purchased together. See, e.g., In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984) (finding bread and
cheese complementary); In re Davia, 110 USPQ2d 1810, 1815 (TTAB 2014) (finding
condiments used in same recipes complementary); In re Sela Products, LLC, 107
USPQ2d 1580, 1587 (TTAB 2013) (finding purchasers likely to encounter both surge
protectors, and wall mounts and brackets, during course of purchasing a television,
audio or home theater system). Moreover, the evidence of record demonstrates that
the types of goods identified in both Applicant’s applications and the cited registration
are often sold by the same entity under the same mark. Further, the marks at issue
here are virtually identical and, accordingly, require a lesser degree of similarity than
that required in Walker Baker.
Applicant’s argument that the respective goods are marketed in a manner that
would not lead to source confusion, because its processed nuts and nut-based food
bars are found in the health goods section of a grocery store and are marketed to the
health and sports conscious, while Registrant’s chocolates are sold at its winery or in
connection with its wine club, also is unavailing. There is nothing in the record that
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demonstrates that chocolates and processed nuts and nut-based food bars are usually
marketed in different areas of grocery stores. More importantly, as noted, there are
no trade channel or class of purchaser limitations in either Applicant’s applications
or Registrant’s cited registration. An applicant may not restrict the scope of its goods
or the scope of the goods covered in the cited registration by extrinsic argument or
evidence. See, e.g., Stone Lion Capital Partners, 110 USPQ2d at 1162 (quoting
Octocom Sys. v. Houston Comp. Servs., 16 USPQ2d at 1787); In re La Peregrina Ltd.,
86 USPQ2d 1645, 1647 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ 763,
764-65 (TTAB 1986).
For the reasons discussed above, the factors of the similarities of the goods, trade
channels and classes of purchasers favor a finding of likelihood of confusion.
C. Consistency of Examination
Applicant has claimed ownership of the following registrations:25
1. Registration No. 3612195 for the mark JUSTIN’S (in standard characters) for
“Nut butters”;26
2. Registration No. 4719797 for the mark (in stylized lettering) for
“Candy”;27

25 Applicant claimed ownership of Registration Nos. 3612195 and 4719797 in both
applications, Registration No 4769287 only in application Serial No. 87232416 and
Registration Nos. 4953636 only in application Serial No. 8723447. We have considered all of
these claimed prior registrations in this consolidated proceeding.
26 Issued on April, 28, 2009, claiming April 9, 2004 as the date of first use of the mark and
October 22, 2004 as the date of first use in commerce.
27 Issued on August 25, 2014, claiming October 1, 2010 as both the date of first use and the
date of first use in commerce.
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3. Registration No. 4769287 for the mark for (in stylized lettering) for
“Nut butters and Nut-based snacks”;28 and

4. Registration No. 4953636 for the mark JUSTIN’S (in standard characters) for
“Candy.”29

Pursuant to the thirteenth du Pont factor, which permits the Office to consider
other information relevant to likelihood of confusion, see In re E. I. du Pont, 177 USPQ
at 567, Applicant maintains that its prior use of the JUSTIN’S mark in the
marketplace of “snack items” creates a unique situation in which consumers are
unlikely to be confused. Applicant, claiming prior ownership of a variety of
registrations, particularly argues that: “based on its history, in which the Trademark
Office repeatedly and consistently granted registration of Applicant’s mark with
‘snack items’ and goods substantively identical to Applicant’s [previously registered]
Goods, and the fact there has never been any conflict in the marketplace” ... Applicant
never had any reason to seek cancellation of Registration No. 4,120,878”; that it had
no reason to believe that the Office would so “drastically reverse course” and refuse
to register its JUSTIN’S mark for the identified goods; that it no longer has the
opportunity to challenge the cited mark because it is now incontestable; and, as a
result, “the future of Applicant’s superior trademark rights is now in jeopardy due to
the inconsistent decisions of the Trademark Office.”30 In support of its arguments,

28 Issued on July 7, 2015, claiming April 9, 2004 as the date of first use of the mark and
October 22, 2004 as the date of first use in commerce.
29 Issued on May 10, 2016, claiming October 1, 2010 as both the date of first use and the date
of first use in commerce.
30 Applicant’s Appeal Brief, pp. 10-14, 7 TTABVUE 11-14.
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Applicant primarily relies on the Board’s decision in In re Strategic Partners, Inc.,
102 USPQ2d 1397 (TTAB 2012). Applicant’s reliance on this decision is misplaced.
In Strategic Partners, appellant owned a registered mark that was substantially
similar to and for goods identical to the ones the appellant presently sought to
register, and that registration had coexisted with the cited mark for over five years.
Because appellant’s prior registration was over five years old, it was not subject to
challenge by the owner of the cited registration based on a claim of likelihood of
confusion. 102 USPQ2d at 1399.
In finding no likelihood of confusion in Strategic Partners, the Board provided the
following explanation:
[T]he present case involves the unique situation presented
by the coexistence of applicant’s existing registration with
the cited registration for over five years, when applicant’s
applied-for mark is substantially similar to its existing
registered mark, both for identical goods. When we
consider these facts under the thirteenth du Pont factor,
we find in this case that this factor outweighs the others
and leads us to conclude that confusion is unlikely.
Strategic Partners, 102 USPQ2d at 1400.
While we are sympathetic to Applicant’s position on this point, we do not consider
the issuance of Applicant's earlier registrations to be a factor that weighs against a
finding of likelihood of confusion. For the reasons previously discussed, the
Examining Attorney’s refusal is justified on the record in this case. Unlike the
situation in Strategic Partners, three of Applicant’s earlier registrations, i.e.,
Registrations Nos. 4719797, 4769287 and 4953636 have been registered for less than
five years, and therefore, are still subject to cancellation on the basis of priority and
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likelihood of confusion, an important distinction from Strategic Partners. See Section
14 of the Trademark Act, 15 U.S.C. § 1064. With further regard to those registrations,
two are registered in stylized format, i.e., Registration Nos. 4719797 and 4769287.
Because the mark Applicant now seeks to register is in standard character format,
the mark that would issue from these applications would not be limited to the
particular stylized depiction previously registered, see Viterra, 101 USPQ2d at 1909-
10 (applicant entitled to all depictions of its standard character mark regardless of
the font style, size, or color), and, accordingly, would materially alter the registered
marks by granting to Applicant broader rights in its JUSTIN’S mark. See Trademark
Rule 2.173(d), 37 C.F.R. § 2.173(d) (“Amendment may not materially alter the
mark.”). Another two, i.e., Registration Nos. 4719797 and 4953636 are registered for
goods that, while related to, are not identical to the goods Applicant now seeks to
register, and thus any registrations that would issue from the present applications
would improperly broaden the scope of the goods covered by the existing registrations.
See Trademark Rule 2.173(e), 37 C.F.R. § 2.173(e), (“No amendment in the
identification of goods … in a registration will be permitted except to restrict the
identification or to change it in ways that would not require republication of the
mark.”). Similarly, although Applicant’s prior registration No. 3612195 is more than
five years old and thus not subject to cancellation on the basis of priority and
likelihood of confusion, and is for the same mark Applicant now seeks to register,
even if we consider the identified “nut butters” to be encompassed by the identified
“processed nuts” Applicant now seeks to register, the registration that would issue
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from Applicant’s current application Serial No. 87232416 would improperly broaden
the scope of the original identification because “processed nuts” is worded broadly
enough to include additional goods, for example, roasted nuts, spiced nuts, and/or
chocolate coated nuts. See Trademark Rule 2.173(e), 37 C.F.R. § 2.173(e).
Applicant’s reliance on the non-precedential decision issued in In re Pure &
Natural Co., Serial No. 77433737 (May 13, 2013), does not persuade us otherwise.
Although parties may cite to non-precedential cases, they are not binding on the
Board and the Board does not encourage the practice. Corporacion Habanos SA v.
Rodriguez, 99 USPQ2d 1873, 1875 n.5 (TTAB 2011). See also In re Luxuria s.r.o., 100
USPQ2d 1146, 1151 n.7 (TTAB 2011) (parties may cite to non-precedential decisions,
but they are not binding on the Board and because they have no precedential effect,
the Board will generally not discuss them in other decisions).
We find, on this record, that the existence of Applicant’s prior registrations does
not outweigh the other du Pont factors. It would be improper to give preclusive effect
to the decisions of the Examining Attorneys in granting Applicant’s prior
registrations, and the Board is not bound by the prior decisions of examining
attorneys in allowing marks for registration. See In re USA Warriors Ice Hockey
Program, Inc., 122 USPQ2d 1790, 1793 n.10 (TTAB 2017). Indeed, as is often noted
by the Board and the Courts, each case must be decided on its own merits. The
determination of registrability of a mark in another case does not control the merits
in the case now before us. See In re Nett Designs Inc., 236 F.3d 1339, 51 USPQ2d
1564, 1566 (Fed.Cir. 2001). See also, In re Kent-Gamebore Corp., 59 USPQ2d 1373
Serial Nos. 87232416 and 87235447
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(TTAB 2001); In re Wilson, 57 USPQ2d 1863 (TTAB 2001). The issuance of
Applicant’s prior registrations does not compel the approval of another if, as in this
case, it would otherwise be improper to do so.31
We also find unavailing Applicant’s argument that its Registration No. 4953636
establishes prior rights in its mark JUSTIN’S for candy. It is well established that an
applicant’s assertion of priority of use may be given no consideration in an ex parte
proceeding when registration has been refused under Section 2(d) of the Act in view
of a subsisting registration. An applicant’s assertion of priority of use in such a case
constitutes a collateral attack upon the cited registration, which attack cannot be
entertained in an ex parte proceeding. See In re Calgon Corporation, 435 F.2d 596,
168 USPQ 278, 280 (CCPA 1971).
While the remedy of a cancellation proceeding is no longer an available option for
Applicant, nonetheless, this is not a case in which the existence of Applicant’s earlier
registrations outweighs the impact of the other du Pont factors on the issue of a
likelihood of confusion.
D. Conclusion
When we consider all of the arguments and evidence relating to the relevant
likelihood of confusion factors, even if not specifically discussed in this opinion, we

31 As Applicant asserts at this point in time it is without the remedy of a cancellation
proceeding against the cited registration which is now more than five years old. However, at
the time the refusal was made, Applicant could have sought a suspension of the prosecution
of its application after receiving the Section 2(d) refusal to pursue a cancellation proceeding
against the cited registration or possibly a consent agreement with the Registrant. The record
demonstrates, however, that Applicant did not pursue these alternatives.

Serial Nos. 87232416 and 87235447
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conclude that confusion is likely between Applicant’s JUSTIN’S mark and the cited
registered mark JUSTIN. We find so principally due to the virtual identity of the
marks, and the relatedness of the goods, trade channels and classes of purchasers.
Decision: The refusals to register the mark JUSTIN’S in application Serial Nos.
87232416 and 87235447 under Section 2(d) of the Trademark Act are affirmed.