Maryhill AB

Trademark Trial and Appeal Board

May 27, 2020

88102714 (T.T.A.B. May. 27, 2020)

Oral Hearing: May 21, 2020 Mailed: May 27, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Maryhill AB
————
Serial No. 88102714
————
Jeffrey M. Furr of the Furr Law Firm,
for Maryhill AB.
Mark T. Mullen, Trademark Examining Attorney, Law Office 111,
Chris Doninger, Managing Attorney.
————
Before Ritchie, Wolfson, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Maryhill AB (“Applicant”) seeks registration on the Principal Register of the
composite mark for “Baguettes; Bread; Bread rolls;
Breadcrumbs; Buns; Cake batter; Cake doughs; Cake mixes; Cakes; Crushed oats;
Dough; Food starch; Pancakes; Processed cereals; Tarts; Unleavened bread in thin
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 88102714
2
sheets; Waffles; Wheat flour; Wheat germ for human consumption; Yeast; Biscuits;
Cookies” in International Class 30.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the mark BREAD FOR EVERYONE (in standard
characters; BREAD disclaimed) registered on the Principal Register for “bread” in
International Class 30.2
When the refusal was made final, Applicant appealed and requested
reconsideration. When the request for reconsideration was denied, this appeal
resumed. Both Applicant and the Examining Attorney filed briefs. An oral hearing
was held on May 21, 2020. For the reasons explained below, we affirm the refusal to
register.3
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the factors bearing on the issue of likelihood of

1 Application Serial No. 88102714 was filed on September 3, 2018, under Section 44(e) of the
Trademark Act, 15 U.S.C. § 1126(e), based on Swedish Registration No. 548690. The
application includes the following description of the mark: “The mark consists of the stylized
wording ‘OATES.SE’ appearing in orange and encircled by the stylized wording ‘THE BREAD
FOR EVERYONE. ETT BROD FOR ALLA’ appearing in grey.” The application also includes
the following English translation statement: “The English translation of ‘ETT BROD FOR
ALLA’ in the mark is ‘THE BREAD FOR EVERYONE’.” The colors orange and grey are
claimed as a feature of the mark.
2 Registration No. 4544380, issued on June 3, 2014; renewed.
3 The TTABVUE and Trademark Status & Document Retrieval (“TSDR”) citations refer to
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents.
Serial No. 88102714
3
confusion. In re E. I. du Pont 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 have considered each DuPont factor for
which there is evidence and argument of record. See In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned
to each DuPont factor depending on the evidence presented. See Citigroup Inc. v.
Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011);
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he
various evidentiary factors may play more or less weighty roles in any particular
determination.”).
In any likelihood of confusion analysis, however, two key considerations are the
similarities between the marks and the similarities between the goods or services.
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.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747
(Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
A. Similarity of the Goods
We initially turn to the comparison of the goods under the second DuPont factor.
Serial No. 88102714
4
In making our determination regarding the relatedness of the goods, we must look to
the goods as identified in Applicant’s application and the cited registration. 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. Hous. Computs. Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the
question of registrability of an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods, the particular channels of
trade or the class of purchasers to which the sales of goods are directed.”)); see also In
re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). Thus, we may not
consider Applicant’s argument that its goods differ from Registrant’s because they
are “gluten free”4 or that they are otherwise limited in some manner not specified in
the identification of goods.
Moreover, registration must be refused in a particular class if Applicant’s mark
for any of its identified goods in that class is likely to cause confusion with the
Registrant’s mark for any of its identified goods. See SquirtCo v. Tomy Corp., 697
F.2d 1038, 216 USPQ 937, 938-39 (Fed. Cir. 1983) (holding that a single good from
among several may sustain a finding of likelihood of confusion); Tuxedo Monopoly,
Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)
(likelihood of confusion must be found if there is likely to be confusion with respect to
any item that comes within the identification of goods or services in the application).

4 Applicant’s Appeal Brief, p. 6, 7 TTABVUE 7.
Serial No. 88102714
5
Registrant’s goods are identified as “bread.” Applicant’s identification of goods
includes “bread.” Accordingly, the identifications overlap and are identical with
regard to “bread.” Moreover, “bread” is defined as “a kind of food made of flour or meal
that has been mixed with milk or water, made into a dough or batter, with or without
yeast or other leavening agent, and baked.”5 Registrant’s broadly worded “bread”
encompasses the more limiting nature of the following goods identified in Applicant’s
involved application: baguettes; bread rolls; buns; unleavened bread in thin sheets;
and biscuits.6 As such, these goods are legally identical in part to Registrant’s bread.
With regard to Applicant’s remaining goods, we have previously found other food
items related to baked goods and different types of baked goods related to one another
in similar circumstances. See, e.g., In re Pan-O-Gold Baking Co., 20 USPQ2d 1761,
1765 (TTAB 1991) (freshly baked bread and bread rolls found related to muffin mix);
Robert A. Johnston Co. v. Ward Foods, Inc., 157 USPQ 204, 206 (TTAB 1968) (frozen
pies and frozen cakes found related to cookies and crackers); In re Continental Baking
Co., 147 USPQ 333, 333-34 (TTAB 1965) (fresh bread, cake and sweet goods, namely,
cinnamon sticks, sweet rolls and assorted pastries found related to frozen fruit and
cream pies), aff'd, 156 USPQ 514 (CCPA 1968). Accordingly, we conclude that
Applicant’s and Registrant’s goods are legally identical and identical-in-part, and

5 www.dictionary.com (based on The Random House Unabridged Dictionary). The Board may
take judicial notice of dictionary definitions, including online dictionaries. See, e.g., In re
Omniome, Inc., 2020 USPQ2d 3222, *2 n.17 (TTAB 2020).
6 Biscuit is defined as “a kind of bread in small, soft cakes, raised with baking powder or soda,
or sometimes with yeast.” www.dictionary.com (based on The Random House Unabridged
Dictionary).
Serial No. 88102714
6
otherwise related.
Accordingly, the second DuPont factor strongly favors a finding of likelihood of
confusion.
B. Similarity of Trade Channels and Classes of Purchasers
Next we consider established, likely-to-continue channels of trade, the third
DuPont factor. Because we have found that Applicant’s and Registrant’s goods are
legally identical and legally identical in part, we must presume that these goods
travel through the same channels of trade and are offered to the same or overlapping
classes of purchasers. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed.
Cir. 2012) (finding Board entitled to rely on this legal presumption in determining
likelihood of confusion); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721,
723 (CCPA 1968) (where there are legally identical goods, the channels of trade and
classes of purchasers are considered to be the same).
Thus, the third DuPont factor also weighs heavily in favor of finding a likelihood
of confusion.
C. Similarity of the Marks
We next consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. See Palm Bay Imps.,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 369 F.3d 1369, 73 USPQ2d
1689, 1691 (Fed. Cir. 2005). “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.” In re i.am.symbolic, LLC, 123 USPQ2d
Serial No. 88102714
7
at 1748 (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal quotation marks omitted)). The focus
is on the recollection of the average purchaser, who normally retains a general rather
than a specific impression of trademarks. See Mini Melts, Inc. v. Reckitt Benckiser
LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084,
1089 (TTAB 2016); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Moreover, where, as here, the relevant goods are identical and legally identical in
part, the degree of similarity between the marks necessary to find a likelihood of
confusion declines. In re Viterra, 101 USPQ2d at 1908; In re Mighty Leaf Tea, 601
F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); In re Max Capital Grp., Ltd., 93
USPQ2d 1243, 1248 (TTAB 2010).
Applicant’s mark is . The cited mark is BREAD FOR
EVERYONE in standard characters. In challenging the refusal, Applicant maintains
that the dominant element in its mark is the term OATES.SE which Applicant
contends is very different from the wording in the cited mark.7 Applicant also argues
that the cited mark is highly descriptive of the goods recited in the cited registration.8
Specifically, Applicant notes that the word BREAD has been disclaimed in the cited

7 Applicant’s Appeal Brief, p. 4; 7 TTABVUE 5.
8 Id.
Serial No. 88102714
8
mark and argues that the wording “FOR EVERYONE” is a highly descriptive, if not
a generic phrase, in connection with Registrant’s goods.9 Finally, Applicant attempts
to distinguish the cases cited by the Examining Attorney, which stand for the legal
proposition that likelihood of confusion is often found where the entirety of one mark
is incorporated within another, by maintaining that the marks at issue in the cited
cases were unique, arbitrary, or famous in nature, while the cited mark is generic in
association with the identified goods and, therefore, is entitled to a very narrow scope
of protection.10
We find Applicant’s arguments unpersuasive. As previously noted, we must base
our determination regarding the similarity of the marks on a consideration of the
marks in their entireties. 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 23, 234 (CCPA 1981). However, 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 as a whole. In
re Nat’l Data Corp., 224 USPQ at 751; see also Price Candy Co. v. Gold Medal Candy
Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955).
It is clear that Applicant’s mark and the cited mark are not identical because the
wording OATES.SE in Applicant’s mark is absent from the cited mark. Although we
acknowledge that the wording OATES.SE in Applicant’s mark is visually more

9 Id. at pp. 4-5; 7 TTABVUE 5-6.
10 Id. at pp. 7-10; 7 TTABVUE 8-11.
Serial No. 88102714
9
prominent, the phrase/slogan THE BREAD FOR EVERYONE in Applicant’s mark is
nonetheless a salient, distinctive feature of Applicant’s mark. It imparts its own
separate commercial impression because it stands somewhat apart from the wording
OATES.SE and, therefore, must be given due consideration. We find this to be
particularly true since the slogan is repeated twice in Applicant’s mark, once in
English and once in Swedish.
Here, the wording THE BREAD FOR EVERYONE in Applicant’s involved mark
incorporates Registrant’s mark, BREAD FOR EVERYONE, in its entirety. The slight
differences in sound and appearance between the two phrases/slogans, due to the
presence of the definite article “THE” in Applicant’s mark, is so insignificant that it
is not likely to be noted or remembered by purchasers when seeing or hearing these
slogans at separate times. See, e.g., In re The Place Inc., 76 USPQ2d 1467, 1468
(TTAB 2005) (definite article THE is a non-distinctive term that adds no source-
indicating significance to the mark as a whole). The wording THE BREAD FOR
EVERYONE in Applicant’s mark is, in effect, just a slightly longer version of
Registrant’s mark. Thus, Applicant’s slogan and the cited mark are virtually identical
in sound, appearance, connotation, and overall commercial impression.
As noted, Applicant has incorporated the entirety of Registrant’s mark in its
applied-for mark. Likelihood of confusion is often found where the entirety of one
mark is incorporated within another. See In re Integrated Embedded, 120 USPQ 1504,
1513 (TTAB 2016) (citing In re Denisi, 225 USPQ 624, 626 (TTAB 1985) (PERRY'S
PIZZA for restaurant services specializing in pizza and PERRY'S for restaurant and
Serial No. 88102714
10
bar services); Johnson Publ'g Co. v. Int'l Dev. Ltd., 221 USPQ 155, 156 (TTAB 1982)
(EBONY for cosmetics and EBONY DRUM for hairdressing and conditioner); In re
South Bend Toy Mfg. Co., 218 USPQ 479, 480 (TTAB 1983) (LIL' LADY BUGGY for
toy doll carriages and LITTLE LADY for doll clothing)). See also Coca-Cola Bottling
Co. of Memphis Tenn., Inc. v. Jos. E. Seagram & Sons, Inc. 526 F.2d 556, 188 USPQ2d
105, 106 (CCPA 1975) (BENGAL and BENGAL LANCER for closely related goods
found confusingly similar).
Notwithstanding the foregoing case law, we recognize that there is no explicit rule
that marks are automatically similar where the entirety of the cited mark is
incorporated in the junior mark. However, where, as here, there is no evidence of
record to demonstrate that the cited mark is either conceptually or commercially
weak (such as evidence of third party use or registration of marks identical or similar
to the cited mark for identical or similar goods) the cited mark is entitled to the
normal scope of protection accorded an inherently distinctive mark. Even if we were
to assume that the cited mark is suggestive, it nonetheless remains inherently
distinctive as applied to Registrant’s goods. Wal-Mart Stores, Inc. v. Samara Bros.,
Inc., 529 U.S. 205, 54 USPQ2d 1065, 1068 (2000) (word marks that are arbitrary,
fanciful, or suggestive are “held to be inherently distinctive.”); Two Pesos Inc. v. Taco
Cabana Inc., 505 U.S. 763, 23 USPQ2d 1081, 1083 (1992) (suggestive, arbitrary and
fanciful marks are deemed inherently distinctive). And “if the mark is inherently
distinctive, it is presumed that consumers will view it as a source identifier.” In re
Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1685 (Fed. Cir. 2010). The
Serial No. 88102714
11
fact that the cited mark is subsumed by Applicant’s mark only increases the
similarity between them. This especially holds true where, as here, the marks are
used on goods that are identical and legally identical in part.
Applicant argues that the cases noted above, where one mark has been subsumed
by the other, are distinguishable from the circumstances in this case because those
cases concerned arbitrary or famous marks while Registrant’s mark is generic or
merely descriptive of Registrant’s goods. Applicant’s argument that Registrant’s
mark is merely descriptive or generic constitutes an impermissible collateral attack
of the validity of the cited mark, which we cannot entertain on this ex parte appeal.
See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1053 (Fed. Cir.
2018); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir.
1997); In re Fiesta Palms, LLC, 85 USPQ2d 1360, 1363 (TTAB 2007) (applicant’s
claim that the cited mark was merely descriptive and weak was an impermissible
collateral attack on the cited registration). Even if we were to consider Applicant’s
argument, Applicant has failed to submit any evidence to demonstrate that the cited
mark, when viewed in its entirety, is descriptive or generic of Registrant’s identified
goods, i.e., bread. Notwithstanding, the cited mark is registered on the Principal
Register without a claim of acquired distinctiveness under Section 2(f) of the
Trademark Act. In re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 (TTAB 2007), cited
in In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1517 (TTAB 2016). As such,
we must assume that it is at most suggestive of the goods identified in the cited
registration. But as noted, suggestive marks are inherently distinctive and should be
Serial No. 88102714
12
accorded the scope of protection to which inherently distinctive marks are entitled.
See Maytag Co. v. Luskin's, Inc., 228 USPQ 747, 750 (TTAB 1986) (“there is nothing
in our trademark law which prescribes any different protection for suggestive,
nondescriptive marks than that which is accorded arbitrary and fanciful marks”); In
re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985) (“the fact that a mark
may be somewhat suggestive does not mean that it is a ‘weak’ mark entitled to a
limited scope of protection”).
We further note that while confusion, mistake or deception about source or origin
is the usual issue posed under Section 2(d), any confusion made likely by a junior
user’s mark is cause for refusal, including a likelihood of confusion of sponsorship,
affiliation or connection. See Hilson Research Inc. v. Society for Human Resource
Management, 27 USPQ2d 1423, 1429 (TTAB 1993); see also See In re Azteca
Restaurant Enterprises Inc., 50 USPQ2d 1209, 1211 (TTAB 1999) (“The average
consumer, therefore, would be likely to view Mexican food items and Mexican
restaurant services as emanating from or sponsored by the same source if such goods
and services are sold under the same or substantially similar marks.”); In re National
Novice Hockey League, Inc., 222 USPQ 638, 641 n.7 (TTAB 1984) (“It may be
appropriate at this point to note, as has been observed by one commentator, that the
statutory concept of ‘likelihood of confusion” denotes any type of confusion, including
not only source confusion but also “confusion of affiliation; confusion of connection; or
confusion of sponsorship.”’ (quoting T.J. McCarthy, op. cit, 24.3.B (4 McCarthy on
Trademarks and Unfair Competition § 24:6 (4th ed. 2016))).
Serial No. 88102714
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We find that relevant consumers who are familiar with Registrant’s mark and the
bread product associated therewith may, upon seeing Applicant’s mark that
incorporates Registrant’s mark in its entirety, believe that Registrant is somehow
affiliated or is a sponsor of Applicant’s bread products.
With regard to the OATES.SE portion of Applicant’s mark, we make the following
observations. First, the wording “OATES” appears in larger font that the term “.SE.”
Second, the bread and baked good products identified in Applicant’s application are
not limited by the ingredients from which they are made. We therefore assume that
Applicant’s bread and baked good products are made from all types of ingredients
used to make such goods, including oats or oat grains.11 We further note that the
Applicant’s identification includes “crushed oats.”
Because there is no correct way to pronounce a trademark, see e.g., In re Viterra
Inc., 101 USPQ2d at 1912 (“[T]here is no correct pronunciation of a trademark, and
consumers may pronounce a mark differently than intended by the brand owner.”);
Trak, Inc. v. Traq Inc., 212 USPQ 846, 850 (TTAB 1981) (“it is not possible for a
trademark owner to control with certainty how purchasers will vocalize their
trademarks”), someone who has heard (rather than seen) the OATES portion of
Applicant’s mark may well pronounce OATES the same as the word “oats.” See In re
Belgrade Shoe, 411 F.2d 1352, 162 USPQ 227 (CCPA 1969); Interlego v.
Abrams/Gentile Entertainment Inc., 63 USPQ2d 1862 (TTAB 2002); and In re

11 During oral hearing, Applicant’s counsel conceded that Applicant’s goods are, in part, made
of oats or oat grains.
Serial No. 88102714
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Lamson Oil Co., 6 USPQ2d 1041 (TTAB 1987). Thus, the term OATES is a phonetic
equivalent of the word “oats.” The term “oats” is merely descriptive of Applicant’s
“crushed oats,” as well as bread products made from oats. It is well established that
a novel spelling or an intentional misspelling that is the phonetic equivalent of a term
that is a merely descriptive word or term is also merely descriptive if purchasers
would perceive the different spelling as the equivalent of the descriptive word or term.
In re ING Direct Bancorp, 100 USPQ2d 1681, 1690 (TTAB 2011) (PERSON2PERSON
PAYMENT generic for direct electronic funds transfers); In re Carlson, 91 USPQ2d
1198, 1203 (TTAB 2009) (holding URBANHOUZING, in standard character form,
would be perceived by consumers as the equivalent of the descriptive term URBAN
HOUSING, rather than as including the separate word ZING); In re Ginc UK Ltd.,
90 USPQ2d 1472, 1475 (TTAB 2007) (“The generic meaning of ‘togs' not overcome by
the misspelling of the term as TOGGS. . .”). In view thereof and inasmuch as the term
OATES is the phonetic equivalent of the word “oats,” relevant consumers are likely
to perceive the OATES portion of the wording OATES.SE in Applicant’s mark as a
mere misspelling of Applicant’s actual goods or ingredient of Applicant’s goods,
namely, oats. We further take judicial notice of the definition of the designation “.SE”
of the wording OATES.SE in Applicant’s mark to mean the Internet country code top-
level domain name for Sweden.12 Since Applicant’s mark also contains Swedish
wording, which as noted is simply a translation of the literal element “THE BREAD

12 See https://www.icann.org/en/system/files/files/se-icann-letters-18sep07-en.pdf. During
oral hearing, Applicant’s counsel noted that .SE stands for the Internet country code top-level
domain for Sweden.
Serial No. 88102714
15
FOR EVERYONE,” we find that consumers are likely to view Applicant’s mark as a
variation on the mark in the cited registration, perhaps with a suggestiveness of
Swedish origin or affiliation. As such, upon viewing the more visually prominent
OATES.SE portion of Applicant’s mark, relevant consumers, who are familiar with
Applicant’s goods, are likely to perceive such wording as merely describing
characteristics of or conveying information about Applicant’s identified goods, rather
than as a source indicator for the goods.
Finally, Registrant’s mark is in standard characters. A mark in typed or standard
characters may be displayed in any lettering style; the rights reside in the wording
or other literal element and not in any particular display or rendition. See In re
Viterra Inc., 101 USPQ2d at 1909; In re Mighty Leaf Tea, 94 USPQ2d at 1260;
TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) §1207.01(c)(iii) (October
2018). Thus, a mark presented in stylized characters and/or with a design element
generally will not avoid likelihood of confusion with a similar mark in typed or
standard characters because the word portion could be presented in the same font
style, color or size. See, e.g., In re Viterra Inc., 101 USPQ2d at 1909; Squirtco v. Tomy
Corp., 216 USPQ at 939 (stating that “the argument concerning a difference in type
style is not viable where one party asserts rights in no particular display”).
Accordingly, in this case the cited BREAD FOR EVERYONE mark could be displayed
in a style similar to Applicant’s involved mark, e.g., the wording appearing in an arc
or semi-circle and in the same font as Applicant’s mark. As a result, the stylization of
the Applicant’s mark does not overcome the similarity between the marks.
Serial No. 88102714
16
In sum, when viewing the marks in their entireties, we find that
and BREAD FOR EVERYONE are more similar than
dissimilar. Moreover, given that the slogan THE BREAD FOR EVERYONE in
Applicant’s mark and the cited mark BREAD FOR EVERYONE are practically
identical, we find the similar commercial impressions between Applicant’s mark and
the cited mark are sufficient to cause purchasers and prospective purchasers who
then encounter the other’s mark on the other’s goods, to mistakenly believe that these
products originate from or are sponsored by the same entity, particularly since the
goods at issue are legally identical and legally identical in part.
Accordingly, the first DuPont factor favors a finding of likelihood of confusion.
II. Conclusion
We have considered all of the arguments and evidence of record. We find that the
Applicant’s goods and the goods identified in the cited registration are legally
identical and legally identical in part, and are presumed to move in common channels
of trade to the same or overlapping classes of consumers. We further find Applicant’s
mark and the mark in the cited registration are more similar than dissimilar, and no
evidence of record establishes that the cited mark is so weak in connection with the
goods at issue to overcome the identity of the goods and similarity of the marks. In
Serial No. 88102714
17
view thereof, we conclude that Applicant’s mark, as used in
connection with the goods identified in its involved application, so resembles the cited
mark BREAD FOR EVERYONE for Registrant’s identified goods as to be likely to
cause confusion or mistake, or to deceive under Section 2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s mark under
Section 2(d) of the Trademark Act is affirmed.