Wednesday, August 27, 2008

Finding "BELL'S & Design" and "OLA BELL'S" Confusingly Similar for Stuffing, TTAB Affirms 2(d) Refusal

The near identity of the involved goods was the critical factor in the Board's affirmance of a Section 2(d) refusal to register the mark OLA BELL'S for "croutons, stuffing consisting of bread; shred which is a form of bread stuffing; dried bread, batters; spices, namely blends for croutons and stuffing." The Board agreed with PTO Examining Attorney Colleen Dombrow that the mark is likely to cause confusion with the registered mark BELL'S & Design (shown immediately below) for "dry ready-mixed stuffing for poultry; a mix containing bread crumbs, flour and seasoning for making a meatloaf, chicken flavor stuffing mix." In re QC Properties Company, LLC, Serial No. 7702036 (August 5, 2008) [not precedential].

The Board first found the goods of the parties, although not described identically, to be "highly related, if not identical." Applicant made the half-baked argument that the goods are not related "because croutons and stuffing are not products consumers would believed emanate from the same source," but the Board in essence told Applicant to stuff it. Third-party registrations and website evidence demonstrated that croutons and stuffing are sold under the same mark. And the identifications of goods overlap anyway vis-a-vis stuffing.

Of course, with the goods being at least highly related, the Board presumed that they travel in the same normal channels of trade to the same usual classes of customers.

Turning then to the key issue, the similarity of the marks, the Board observed yet again that, when the involved goods are highly related, the degree of similarity between the marks necessary to support a finding of likely confusion is decreased.

Applicant argued that the marks have different meanings and commercial impressions. For example, it pointed out that OLA BELL is a woman's name (and specifically the name of the mother of Applicant's principal), whereas the cited mark "engenders the impression of the hollow, cusp shaped, metal instrument by virtue of the design of the bells ...." That did not ring true with the Board: "Even assuming that applicant's argument is correct, the bell design does not create a significant difference between the marks because the bell reinforces the word portion (BELL'S) of registrant's." [TTABlog note: But Applicant did have a point there regarding the different commercial impressions]. However, given the highly related nature of the goods, and noting that a side-by-side comparison is not the proper approach, the Board found the marks to be more similar than dissimilar.

Finally, Applicant submitted 10 third-party registrations and a "hit list" from a search from the PTO database for the word "bell" in class 30. The Board sustained the PTO's objection to the hit list, since a mere list is insufficient to make the registrations of record. [The Examining Attorney had pointed out this problem to Applicant, but Applicant never bothered to submit copies of the registrations].

The 10 third-party registrations it did submit were of little import, since there was no proof of actual use of the registered marks. Moreover, "third-party registrations will not aid an applicant to register its mark if it is likely to cause confusion with the cited registration." In any event, these registrations do not cover croutons or stuffing, and so they do not show that "bell" marks "have been routinely registered for the products at issue." [TTABlog query: Suppose KEITH BELL, MARC BELL, BETH BELL, and BILL BELL were all registered by different owners for croutons or stuffing. Then would the third-party registrations have made a difference?]

The Board therefore affirmed the Section 2(d) refusal to register.

Text Copyright John L. Welch 2008.


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