Friday, October 07, 2005

TTAB Makes "KRYPTONITE" Decision Its 10th Citable of 2005

On September 30, 2005, the Board, "on further consideration," designated as citable its decision in D.C. Comics v. Pan American Grain Mfg. Co., Opposition No. 91125404 (Aug. 24, 2005). [The case is summarized here at the TTABlog.] The Board found the mark KRIPTONITA for "prepared alcoholic fruit cocktail" likely to cause confusion with Opposer's KRYPTONITE mark.

Perhaps the reason for the case's citability is its discussion of "merchandising marks." DC Comics proved that the KRYPTONITE mark, registered for t-shirts and toys, has also been licensed for use with food products: Kraft® macaroni and cheese ("It Sure Beats A Bowl Of Kryptonite") and Diet Coke® ("Caffeine Free. Kryptonite Free."). The Board found that the goods of the parties are related since "consumers recognize that, in the general marketing environment, merchandising marks are used to identify a variety of goods and services."

This brings the total of citable cases for the year to ten, and leads one to wonder whether the Board will break the one dozen barrier for the year.

Text Copyright John L. Welch 2005.


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