Tuesday, February 01, 2022

TTABlog Test: Is "CRC BAKERY" Confusable with the "CRC" Kosher Certification Mark, Both for Food Products?

The USPTO refused to register the proposed mark CRC BAKERY for various bakery products (Class 30), for wholesale food distributorship services (Class 35), and for bakery services (Class 40) [BAKERY disclaimed], finding confusion likely with the registered certification mark CRC & Design (shown below) for "fresh and processed foods for human consumption." Applicant argued, inter alia, that the cited mark - used to certify rabbinical approval of food products as being kosher - limits the classes of consumers for those foods to sophisticated and discerning consumers. How do you think this came out? In re CRC Packaging, LLC, Serial No. 88696519 (January 28, 2022) [not precedential] (Opinion by Judge Elizabeth A. Dunn).

The cited certification mark is owned by the Chicago Rabbinical Council, and states that the mark is "used by persons authorized by the certifier to certify a reliable rabbinical approval of food products as being kosher.” 

The Section 2(d) likelihood-of-confusion analysis does not change when the cited registration is for a certification mark; however, because the owner of a certification mark does not itself use the mark, the determination of likelihood of confusion is based on use of the cited mark by the certification mark users. 

The marks: The Board was unimpressed by the applicant's argument that the cited mark, like a person's monogram, will be perceived as a large "R" in a triangle. As to applicant's proposed mark, the Board unsurprisingly found "CRC" to be the dominant part,  since BAKERY is generic. 

Applicant next argued that the certification mark is used inconspicuously on products, but the Board noted that the placement of the mark is a choice of the user, not the registrant. Furthermore, "there is no trademark statutory or rule requirement which would bar Applicant from a similar 'inconspicuous' placement, so that prospective consumers could encounter Applicant’s mark CRC BAKERY in close proximity to, and the same size as, the registered CRC certification mark."

The Board concluded that the first DuPont factor weighed in favor of a finding of likely confusion.

The goods/services: Because the goods and services in the subject application are not restricted, the Board presume that they include both kosher and non-kosher versions. The goods in the cited registration are "fresh and processed foods for human consumption." "However, because a certification mark may not be used by the owner of the mark, but is instead used by authorized users, the comparison is based on the authorized users’ goods, which in this case consist of 'fresh and processed kosher foods for human consumption.'"

All of Applicant’s International Class 30 food items are included within, and so are identical in part to, the goods identified in the registration as “processed kosher foods for human consumption.” As to Applicant’s International Class 35 and 40 services, because Registrant’s “fresh and processed foods for human consumption” include baked food items, and baked foods are the product of bakery and baking services, we find the registered goods are closely related to Applicant’s bakery and baking services.

Buyer sophistication:  Since the goods overlap, the Board must presume that those goods travel in the same channels of trade to the same classes of consumers. Applicant tried to overcome that presumption with evidence that the prospective consumers of foods bearing the registered certification mark are sophisticated and discerning. The Board was not impressed.

On one hand, there is a significant number of food buyers who seek kosher certification for a variety of reasons not limited to religious observance. Those consumers, by their willingness to seek certified goods, are likely to exercise a higher degree of care than the average consumer of food. On the other hand, the record shows that in response to the growth of those seeking kosher foods, many food producers changed to kosher processing, even though many or most of their prospective consumers may not demand or realize that the food item they purchase is kosher.

The Board found that "kosher processing now applies to a wide range of foods not limited to Jewish observance." The evidence submitted by Examining Attorney Jeffrey Sjogren showed the cited certification mark used on goods with broad appeal such as chocolate chip cookies, tortillas, milk, and popcorn. Moreover, even sophisticated consumers may see the involved marks "as variations of each other, pointing to a single source."

Conclusion: The Board affirmed the refusal in all three classes.

Read comments and post your comment here.

TTABlogger comment: How did you do? Do you agree with the decision?

Text Copyright John L. Welch 2022.


At 8:42 AM, Blogger Miriam Richter, Esq. said...

I disagree with this outcome on several levels. Having grown up in a kosher household I know firsthand that people looking for the CRC certification will not confuse it with anything! It either is or isn't on a product. These consumers will not take a chance that something from CRC Bakery is kosher if they can't find the certification mark on it! This situation was ripe for a survey. This is also an obscure and regional certification (as opposed to the OU certification which is national) and any consumer who wants to buy kosher food for non-observant reasons will not know it! There is never going to be any confusion.

My main question is why didn't they try to get a co-existence agreement????? It's a no brainer.


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