Tuesday, September 11, 2012

TTAB Cancels LITTLE RED HEN BAKERY Registration: No Proof of Pre-Filing Use in Interstate Commerce

The Board sustained a two-legged petition for cancellation of a registration for the mark LITTLE RED HEN BAKERY for various baked bread products [BAKERY disclaimed], finding the mark likely to cause confusion with the previously-used mark RED HEN BREAD for bakery goods, and also ruling that Respondent had failed to prove use of his mark in interstate commerce prior to the filing date of his application. Red Hen Bread LLC v. Norm Oeding, Cancellation No. 92051279 (August 31, 2012) [not precedential].

Likelihood of Confusion: Because the involved goods are legally identical, the Board must presume that they travel in the same, normal channels of trade to the usual classes of consumers. The goods are of the type that are purchased by unsophisticated consumers without great deliberation.

As to the marks, the Board gave less weight to the generic/descriptive words BAKERY and BREAD. The inclusion of the word LITTLE in Respondent's mark was not enough to distinguish it from Petitioner's mark. "The impression of both marks remains the same, that of a RED HEN, with respondent's mark merely providing some additional information about the hen."

In sum, the marks are similar in appearance and sound, and convey substantially similar connotations and commercial impressions.

Respondent claimed that there are a number of similar business under similar marks, but he provided no evidentiary support for that assertion. The Board noted that there is a children's story about a little red hen who attempts to bake bread, but there was no evidence showing that "parties have adopted RED HEN marks because the term has a suggestive connotation for bakery products." Moreover, even if there is a slightly suggestive connotation, it is present in both marks.

Finally, petitioner pointed to a lack of proof of actual confusion, but the Board observed that (1) actual confusion evidence is difficult to obtain, and unnecessary, and (2) there is no evidence that the parties operate in the same geographic area, and so there apparently has not been an opportunity for confusion to occur.

Balancing all the relevant du Pont factors, the Board found confusion likely and it sustained Petitioner's Section 2(d) claim.

Lack of Use in Commerce: Petitioner contended that, as of the filing date of the application that issued as Respondent's registration, Respondent did not make use of his mark in interstate commerce on all of the listed goods. Respondent so stipulated in his answer, and in discovery stated that he sold his goods in only two counties in the State of Kansas and had no distributors outside that state.

Respondent nonetheless argued that his activities within the State of Kansas constituted use in commerce, and that he "continues to maintain that he has distributed his marked products to numerous locations which have on occasion been frequented by customers from outside the state of Kansas." Unfortunately, he provided no evidence to back up those assertions.

Respondent's mere assertions in his brief that he engaged in activities that constitute use in commerce are not sufficient to rebut his own admissions that he did not make use of his mark in interstate commerce on all of the identified goods as the filing date of his application. Although there are situations in which intrastate sales may be found to have such an effect on commerce that may be controlled by Congress that the activities constitute use in commerce, see In re Silenus Wines, Inc., 557 F.2d 806, 194 USPQ 261 (CCPA 1977), there must be a showing that the activities have such an effect.

The Board therefore found that Respondent did not use his mark on all of his identified goods as of his filing date, and ruled that the registration must be cancelled on the ground of nonuse.

TTABlog comment: The little red hen laid an egg.

Text Copyright John L. Welch 2012.


At 6:44 PM, Anonymous Anonymous said...

Wow. Did he take phone orders? Use the U.S. Mail? Use the Internet?

I always assumed that Interstate Commerce is a pretty low threshold these days.


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