TTAB Test: Is "NOT SO SIMPLE SYRUP" Confusable with "KEEP IT SIMPLE SYRUP" for Syrup?

Chef Sous LLC opposed an application to register the mark NOT SO SIMPLE SYRUP for "syrups for making beverages; non-alcoholic drink and cocktail mixes" [SYRUP disclaimed], claiming likelihood of confusion with its common law mark KEEP IT SIMPLE SYRUP for "simple syrup." The goods are in-part identical, the consumers are the general public, the goods are relatively inexpensive, and the channels of trade overlap. But what about the marks? How do you think this came out. Chef Sous LLC v. Heidi Webb, Inc., Opposition No. 91215638 (October 26, 2016) [not precedential].

The Board agreed with opposer that the mark KEEP IT SIMPLE SYRUP is suggestive, but disagreed with opposer's contention that the mark is famous, give the limited time of use and moderate sales and advertising figures.

The Board acknowledged that when the goods are identical in part, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion.

Although each mark contains the phrase SIMPLE SYRUP,  that phrase is either descriptive or generic Opposer disclaimed SIMPLE SYRUP in its registration of a logo mark containing that phrase. Nonetheless, the marks at issue must be considered in their entireties.
 
The Board agreed with applicant that the marks are "antithetical in meaning." Applicant's mark connotes "complexity, or the absence of simplicity," while opposer's mark puts a premium on simplicity and evokes the familiar expression, Keep It Simple Stupid." Because the marks  have different meanings, they have different commercial impressions.

Concluding that the first  duPont factor is dispositive, the Board dismissed the opposition.

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Text Copyright John L. Welch 2016.