Thursday, September 06, 2018

TTAB Test: Are these Two Word + Design Marks Confusable for Food Kits and Delivery Services?

The USPTO refused registration of the mark shown below left for "Food preparation services featuring fresh, properly proportioned, healthy meal kits and made to order for delivery," finding the mark likely to cause confusion with the registered marks shown below right, for "Prepared food kits composed of meat, poultry, fish, seafood, and/or vegetables and also including sauces or seasonings, ready for cooking and assembly as a meal." Applicant argued that the marks are distinguishable in appearance and create different commercial impressions: registrant’s mark conveys the idea of “doing” food ("such as 'Oh, I see, they do [as in make or prepare] food for me'"), while Applicant’s mark is intended to reference Applicant’s name, DooJin Kim. How do you think this appeal came out? In re Doofood, Serial No. 87370003 (September 4, 2018) [not precedential] (Opinion by Judge Marc A. Bergsman).

The Marks: Examining Attorney Melissa Vallillo pointed out the lack of evidence concerning the purported meaning of applicant's mark, and she noted that applicant conceded that consumers are likely unaware of the intended reference to applicant's name.

The Board, not surprisingly, found that DOOFOOD and DO FOOD are the prominent portions of the involved marks. The design portion of the cited mark is in the nature of a backdrop that emphasizes the wording. In applicant's mark, the design of a steaming pot "evokes the cooking aspect of Applicant's meal kit preparation and delivery services," reinforcing the word "food." Neither design element would be articulated.

DOOFOOD and DO FOOD are highly similar because they are phonetic equivalents. The are nearly identical in appearance. There is no evidence that "do food" has any meaning with respect to registrant's goods. To the extent that "do food" may connote cooking and eating, the same meaning would apply to applicant's services.

The Board therefore found the marks to be similar in appearance, sound, connotation, and commercial impression.

The Goods and Services: "It is well established that confusion may be likely to occur from the use of the same or similar marks for goods, on the one hand, and for services involving those goods, on the other." The identified goods and services are related on their face. Moreover, website printouts from Blue Apron, Purple Carrot, and others showed that prepared food kits as well as delivery services for same are offered by third-parties under the same trademark. Six third-party registrations also evidenced the same.

The Board found that the channels of trade and classes of purchasers for the involved goods and services are the same.

Conclusion: The Board found confusion likely and it affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: How did you do? Would you have appealed?

Text Copyright John L. Welch 2018.


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