Test Your TTAB Judge-Ability: Are "CRUSSH" for Restaurant Services and "CRUSH" for Beverages Confusingly Similar?
In this consolidated opposition and cancellation proceeding, Dr. Pepper/Seven Up challenged Krush Global's right to register the mark CRUSSH in standard character and design form for restaurant, snack bar, and cafe services. Plaintiff alleged a likelihood of confusion with its registered mark CRUSH for non-alcoholic beverages. Sure the marks are close, but what about the goods and services? Dr Pepper/Seven Up, Inc. v. Krush Global Limited, Opposition No. 91180742; and Cancellation No. 920484461 (September 13, 2010) [not precedential].
The Board found the word marks to be "highly similar," and it further deemed the word "CRUSSH" to be the dominant portion of the Defendant's design mark.
The key issue, then, was the relatedness of the involved goods and services. The Board noted for the umpteenth time that there is no per se rule that confusion is likely when "similar or even identical marks are used for food products and restaurant services." Jacobs v. International Multifoods Corp., 212 USPQ 641 (CCPA 1982). According to Jacobs, "something more" is required.
Plaintiff submitted evidence showing that "it is not uncommon for parties to utilize the same marks for restaurant services and food and beverage products." Examples are BEN & JERRY'S, BOB EVANS, CARVEL, DUNKIN' DONUTS, etc. Plaintiff also pointed out that it owns the marks STEWART'S and A & W, both used for beverages and restaurant services. Defendant's President testified that his company might venture into "bottled smoothies." [Open mouth, insert foot - ed.]
Finally, Plaintiff submitted several third-party use-based registrations that included both beverages and restaurant services.
The Board therefore concluded that the respective goods and services of the parties are related.
And so the Board ruled that confusion is likely, and it sustained the opposition to the design mark, and granted the petition to cancel the registration for the word mark.
TTABlog comment: I don't think these marks are confusingly similar, do you? Why would anyone in his or her right mind think that a restaurant with the unique spelling of CRUSSH is related to a soft drink? Come on, let's get real here!
I think the Jacobs "something more" requirement should be satisfied only if the marks are identical and the plaintiff's mark is particularly unique or famous. See, for example, the DELMONICO decision [TTABlogged here].
Text Copyright John L. Welch 2010.