Krinos Foods, Inc.

Trademark Trial and Appeal Board

Sep 18, 2002

No. 76047170 (T.T.A.B. Sep. 18, 2002)

September 18,2002
Paper No.9
GDH/gdh
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Krinos Foods, Inc.
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Serial No. 76/047,170
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Robert A. Giacovas of Lazare, Potter, Giacovas & Kranjac LLP for
Krinos Foods, Inc.
Michelle R. O'Lear, Trademark Examining Attorney, Law Office 111
(Kevin R. Peska, Managing Attorney).
_______
Before Hohein, Bucher and Bottorff, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Krinos Foods, Inc. has filed an application to register
the mark "TWISTIES" for "tubular rolled-wafer cookies containing
a cream-based filling, but excluding corn base or cheese flavored
products."1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to its goods, so resembles the
mark "TWISTEES" and design, which is registered, as illustrated
below,
1 Ser. No. 76/047,170, filed on May 15, 2000, which is based on an
allegation of a bona fide intent to use such term in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76/047,170
2
for a "deep fried, baked, roasted or toasted cheese flavored corn
meal product in puffed form,"2 as to be likely to cause
confusion, or mistake or to deceive.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
The 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 similarity of the goods
and the similarity of the marks.3
Turning first to consideration of the respective goods,
applicant acknowledges that the Examining Attorney relies, in
part, upon excerpts made of record from a search of the "NEXIS"
database which show that "consumers are likely to view cookies
and corn-products as snack foods." Applicant argues, however,
2 Reg. No. 541,921, issued on May 8, 1950, which sets forth a date of
first use anywhere of January 27, 1948 and a date of first use in
commerce of January 31, 194878; third renewal.
3 The court, in particular, pointed out that: "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."
Ser. No. 76/047,170
3
that "cookies and corn-based products are distinct and different
types of foods." Cookies, applicant maintains, are sugar-based
dessert items which are typically consumed after a meal and with
such complementary beverages as milk, coffee or tea. By
contrast, applicant asserts that corn-based products,4 such as
registrant's "corn chips or corn puffs, generally are consumed as
a party snack or pre-meal or in-between meal treat" and that,
because those goods are "salt-based product[s]," they are usually
consumed with such complementary drinks as "soda, beer or other
types of alcoholic beverages."
In addition, while applicant concedes that its goods
and those of registrant "typically are sold in grocery markets
and convenience stores," applicant contends that "it is unlikely
that they would be found together in a same aisle or on a same
shelf." Instead, applicant insists that its goods, which it
characterizes as "Viennese Wafer cookies[,] are likely to be
found among other types of cookies, cakes and confectioneries,"
while registrant's "corn-based products[,] such as corn chips and
corn puffs, typically are located among other salt-based food
products, such as potato chips, pretzels, peanuts and the like."
Lastly, as to the third-party registrations of record which the
Examining Attorney also relies upon to demonstrate the closely
related nature of the goods involved in this appeal, applicant
"submits that most encompass unusually broad categories of goods
4 Applicant, we note, admitted in its response to the initial Office
action that, as identified in the cited registration, registrant's
goods would "[c]learly" include "some form of corn 'chip' or 'cheese
puff.'"
Ser. No. 76/047,170
4
that are classified in the same International Class, but in
reality are not remotely related to one another." Applicant
concludes, therefore, that "the third[-]party registrations cited
by the Examining Attorney represent an exception rather than a
norm and should not govern this matter."
We concur with the Examining Attorney, however, that
the evidence of record is sufficient to establish that the goods
at issue--although specifically different--are nonetheless
closely related snack foods which, if sold under the same or
similar marks, would result in a likelihood of confusion as to
the source or sponsorship of such goods. As the Examining
Attorney correctly notes, it is well settled that goods need not
be identical or even competitive in nature in order to support a
finding of likelihood of confusion. Instead, it is sufficient
that the goods are related in some manner and/or that the
circumstances surrounding their marketing are such that they
would be likely to be encountered by the same persons under
situations that would give rise, because of the marks employed in
connection therewith, to the mistaken belief that they originate
from or are in some way associated with the same producer or
provider. See, e.g., Monsanto Co. v. Enviro-Chem Corp., 199 USPQ
590, 595-96 (TTAB 1978) and In re International Telephone &
Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
Here, as support for her contention that the respective
goods are closely related snack foods, the Examining Attorney
observes that the record contains copies of approximately 40 use-
based third-party registrations of marks which are registered
Ser. No. 76/047,170
5
for, inter alia, "cookies," on the one hand, and "puffed corn
snacks," "puffed corn-based snacks," "cheese flavored puffed corn
snacks" and/or "corn chips," on the other. While such
registrations are admittedly not evidence that the different
marks shown therein are in use or that the public is familiar
with them, they nevertheless have some probative value to the
extent that they serve to suggest that the goods listed therein
are of the kinds which may emanate from a single source. See,
e.g., In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86
(TTAB 1993) and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467,
1470 (TTAB 1988) at n. 6. Moreover, while many of the third-
party registrations are indeed for house marks and thus include a
broad listing of additional food items in International Class 30,
roughly 25% of the third-party registrations specifically preface
such snack items as "cookies" and "cheese flavored puffed corn
snacks" with the language "snack foods, namely," or "snacks,
namely," thereby explicitly indicating the category to which such
goods are regarded as belonging. However, irrespective of such
limitations, it is plain from the third-party registrations that
producers and/or sellers of snack foods frequently adopt the same
mark for more than one kind of snack product. Consumers,
therefore, would expect such products to emanate from the same
source regardless of whether the snack food is sweet like cookies
or salty like corn puffs and corn chips.
Furthermore, as noted previously, the Examining
Attorney also relies upon excerpts made of record from a search
of the "NEXIS" database which refer to "cookies," "corn puffs"
Ser. No. 76/047,170
6
and "corn chips" as types of "snack foods" or "snacks." With but
two exceptions, in which "corn puffs" are mentioned as being
"salty snacks," the Examining Attorney is correct in observing
that the numerous "NEXIS" excerpts "all refer to" cookies, corn
puffs and corn chips "without distinguishing between the fact
that some of these items are sweet and some ... are salty." In
any event, we concur with the Examining Attorney that "[a]
consumer purchasing snack foods is just as likely to buy a salty
snack as a sweet snack, and the same consumer may in fact
purchase both types of goods, given that snack foods are
inexpensive and easy to obtain."
Nevertheless, based apparently upon the limitation,
added by applicant in response to the refusal to register, to
restrict the identification of its goods so as to exclude tubular
rolled-wafer cookies containing a cream-based filling" which have
either a "corn base or cheese flavored products," applicant
argues that confusion is not likely with registrant's "TWISTEES"
and design mark because:
It should further be noted that
Applicant's TWISTIES mark is used on a
specific type of cookie only, namely,
Viennese Wafers. Viennese Wafers generally
are considered to be a more sophisticated
type of cookie that are purchased and
consumed by adults as opposed to children.
Again, they are consumed as a compliment
[sic] to a cup of coffee or tea. A Viennese
Wafer is in a league of its own when compared
to more generic types of cookies such as
chocolate chip or butter cookies, which
traditionally are consumed by children.
Applicant urges, in view thereof, that consumers interested in
its goods and those desiring registrant's products "form two ...
Ser. No. 76/047,170
7
distinct and separate target groups," with consumers of the
former being sophisticated and discriminating purchasers such as
mature adults, while buyers of the latter are most likely to be
children and young adults.
We agree with the Examining Attorney, however, that no
meaningful distinction may be drawn between the classes of
purchasers of applicant's and registrant's snack food products.
In particular, we concur with the Examining Attorney that, as to
applicant's Viennese Wafer cookies, "[t]here is no evidence to
suggest that the purchasers of these goods are any more
sophisticated than purchasers of other food items," such as those
marketed by registrant, and that "[t]herefore, it must be
presumed that the purchasers of these goods are likely to be
ordinary [or] average consumers." Moreover, there is nothing
intrinsic in the nature of the respective goods to suggest that
the classes of purchasers for applicant's goods would not be
identical to or at least significantly overlap with those who buy
registrant's products. Both applicant's and registrant's goods,
furthermore, are inexpensive items which frequently would be
subject to impulse purchase and the lesser care typically
exercised in connection therewith. Thus, notwithstanding the
limitation in the identification of applicant's goods to exclude
cream-filled tubular rolled-wafer cookies with a "corn base or
cheese flavored products," contemporaneous use of the same or
similar marks in connection with the closely related snack foods
involved herein would clearly result in a likelihood of
confusion.
Ser. No. 76/047,170
8
Turning, therefore, to consideration of the respective
marks, applicant contends that because they "are distinct in
appearance and commercial impression," confusion is not likely.
Applicant observes, in particular, that its mark "is one word and
is spelled T-W-I-S-T-I-E-S," while registrant's mark "is spelled
differently, T-W-I-S-T-E-E-S, and is comprised of two ... words."
Applicant also notes that registrant's mark "is in [a] stylized
form which is significant and quite distinct in appearance."
However, as the Examining Attorney correctly points
out, the proper test for confusing similarity is not whether the
respective marks are distinguishable on the basis of a side-by-
side comparison inasmuch as such is not ordinarily the way that
customers will be exposed to the marks. Instead, it is the
similarity of the general overall commercial impression
engendered by the marks which must determine, due to the
fallibility of memory and the concomitant lack of perfect recall,
whether confusion as to source or sponsorship is likely. The
proper emphasis is accordingly on the recollection of the average
purchaser, who normally retains a general rather than a specific
impression of marks. See, e.g., Grandpa Pidgeon's of Missouri,
Inc. v. Borgsmiller, 477 F.2d 586, 177 USPQ 573, 574 (CCPA 1973);
Envirotech Corp. v. Solaron Corp., 211 USPQ 724, 733 (TTAB 1981);
and Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975).
In this case, we agree with the Examining Attorney that
notwithstanding the slight differences in spelling and number of
terms, the marks at issue are phonetic equivalents and, as such,
Ser. No. 76/047,170
9
"are pronounced exactly the same." See, e.g., Dreamwerks
Production Group Inc. v. SKG Studio, 142 F.3d 1127, 46 USPQ2d
1561, 1564 (9th Cir. 1998) [finding "perfect similarity of sound,
since [the marks] 'Dreamwerks' and 'DreamWorks' are pronounced
the same way"] and In re Research & Trading Corp., 793 F.2d 1276,
230 USPQ 49, 50 (Fed. Cir. 1986) [finding "little room in which
to debate the similarity between [the marks] ROPELOCK and ROPELOK
in appearance and sound"]. Additionally, with respect to
applicant's argument that applicant's and registrant's marks are
distinct in appearance due to the stylized display of the latter,
the Examining Attorney correctly observes that, as stated in
Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed.
Cir. 1983) (italics in original):
[T]he argument concerning a difference
in type style is not viable where one party
asserts rights in no particular display. By
presenting its mark merely in a typed
drawing, a difference cannot legally be
asserted by that party. .... Thus, ... the
displays must be considered the same.
Here, applicant's "TWISTIES" mark is in typed form. It
consequently may be displayed in any reasonable format, including
the same boldly slanted lettering as that utilized by registrant
in its mark. See, e.g., INB National Bank v. Metrohost Inc., 22
USPQ2d 1585, 1588 (TTAB 1992), citing Phillips Petroleum Co. v.
C. J. Webb, Inc. 442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971).
Thus, except for the larger size of the second letter "T" in
registrant's mark, which creates the impression that its mark is
comprised of two terms rather than one, applicant's mark must be
regarded as identical in sound and substantially similar in
Ser. No. 76/047,170
10
appearance to registrant's mark. Both marks also possess the
identical connotation, when used in connection with the
respective goods, that such products are twisted in the shapes
thereof and, overall, the marks project substantially the same
commercial impression.
We conclude, in view thereof, that when considered in
their entireties, applicant's "TWISTIES" mark is so substantially
identical to registrant's "TWISTEES" and design mark that their
contemporaneous use in connection with closely related snack
foods would be likely to cause confusion as to the origin or
affiliation of such goods. Applicant asserts as its final
contention, however, that despite the absence of an amendment to
allege use, its "product is presently in production and has, in
fact, been distributed in the United States from September 2000."
Applicant further argues that it "has used its TWISTIES mark on
its tubular rolled-wafer cookies containing a cream-based filling
for nearly two ... years without any objection or complaints"
from registrant and that "the TWISTIES and TwisTees marks have
been in concurrent use for nearly two ... years without any
instances of actual confusion that Applicant is aware of among
consumers."
Applicant's contentions, we note, are simply arguments
by its counsel and are not supported by any affidavit or
declaration by anyone associated with applicant who has firsthand
knowledge of the alleged facts. Thus, as the Examining Attorney
accurately observes, "there is ... no evidence of record as to
the nature and extent of the ... use of the respective marks, and
Ser. No. 76/047,170
11
more importantly, there is no opportunity to hear from the
registrant on this point." In any event, even if we were to take
counsel's arguments as true statements of fact, suffice it to say
that while the absence of any instances of actual confusion over
a significant period of time is of course a du Pont factor which
is indicative of no likelihood of confusion, it is a meaningful
factor only where the evidentiary record demonstrates appreciable
and continuous use by applicant of its mark in the same markets
as those served by registrant under its marks. See, e.g.,
Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB
1992). In particular, there must be evidence showing that there
has been an opportunity for incidents of actual confusion to
occur. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943,
55 USPQ2d 1842, 1847 (Fed. Cir. 2000). Here, as indicated above,
the Examining Attorney is correct that there is simply no
evidence in the record, such as information concerning details of
the nature and extent of the sales and marketing activities of
applicant and registrant under their respective marks, from which
it could be concluded that the asserted absence of any instances
of actual confusion is indeed a mitigating factor. Compare In re
General Motors Corp., 23 USPQ2d 1465, 1470-71 (TTAB 1992).
Decision: The refusal under Section 2(d) is affirmed.