Thursday, April 25, 2024

TTABlog Test: Is CROKO for Chocolates and Cookies Confusable with CROCO BERRY CRUNCH for Breakfast Cereals?

The USPTO refused to register the mark CROKO for "Chocolates and Chocolate Confectionery Products, namely, snack foods being chocolate, candy; Biscuits; cookies," finding confusion likely with the registered mark CROCO BERRY CRUNCH for "breakfast cereals" [BERRY disclaimed]. Applicant appealed. How do you think the appeal came out? In re International Foodstuffs Co. LLC, Serial No. 97444092 (April 23, 2024) [not precedential] (Opinion by Judge Mark A. Thurmon).

The Marks: The words BERRY CRUNCH in the cited mark "are likely non-distinctive elements that tell consumers something about the breakfast cereal itself, rather than about its source." Therefore, "'CROCO,' the first word of the cited mark, is clearly the dominant element." CROCO has no apparent meaning vis-a-vis cereals. "Being an arbitrary term, and used as the first element of the mark, CROCO is the key source-identifying element of the cited mark." The mark CROKO is visually similar to CROCO.

When a consumer familiar with the CROCO BERRY CRUNCH mark for breakfast cereals views, separately, cookies or chocolate candy bearing the CROKO mark, the likely mental connection will be to the CROCO mark, which is quite similar in appearance to CROKO. It is in this way that these marks are visually similar.

As to sound, there is no "correct" pronunciation of a word like CROKO that is not a recognized word in the English language. It may be pronounced the same as CROCO. There was no evidence as to meaning or commercial impression of the marks.

[W]e find the similarities, particularly when the marks are spoken, are more likely to impact consumer perception and recollection than the differences. As noted above, similarity in any means of comparison may be sufficient to find that marks are similar, and, on balance, the CROCO BERRY CRUNCH and CROKO marks are more similar than dissimilar, so the first DuPont factor weighs in favor of likelihood of confusion.

The Goods: Examining Attorney Megan Hartnett submitted evidence showing that several brand names are used with both breakfast cereals, on the one hand, and cookies, candies, or snack bars, on the other. For example, Oreo:

Other evidence showed the KETO FRIENDLY mark used with both breakfast cereal and snack bars, and the marks CADIA, BACKPACKER’S PANTRY, and HILLSIDE LANE FARM used with both breakfast cereals and cookies or snack bars.

The evidence shows that the goods are related in a way that would lead consumers to believe some of Applicant’s goods come from the same source as Registrant’s goods. The second DuPont factor, therefore, weighs in favor of a finding of likelihood of confusion.

Conclusion: The Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: I find this one a bit hard to swallow. Do the marks really look and sound alike?

Text Copyright John L. Welch 2024.


At 10:20 AM, Blogger Stephen said...

I don't agree that the goods are related and the Oreo example is not a good one since the purpose of the cereal is to sell you cereal disguised as cookies or vice versa. A consumer is buying that cereal because it tastes like cookies.

Also, when does a brand become a "house of brands" that tends not to show a relatedness? In other words, when does Oreo become Kroger? If Oreo is sold on a wide variety of products, then don't they become a house of brands?

It seems to me that the trend of the PTO under David Gooder has become more difficult to register marks, and the scope of likelihood of confusion has become broader.

At 11:09 AM, Blogger Scott Brown said...

I agree with Stephen. It's also disappointing as a practitioner to deliver bad news to a client that you think that some mark with a distant product will be considered too similar because the USPTO squints and thinks everything is related now.

At 11:51 AM, Anonymous Anonymous said...

Agree with Stephen on all. The Oreo example is terrible. It seems that "sold under the same brand" is sufficient to show relatedness now, and under that standard, everything is related (see, e.g., MEMBER'S MARK, AMAZON BASICS, etc.). There has to be a limit to that and it's not clear there is.

At 12:03 PM, Anonymous Anonymous said...

Under current Board jurisprudence, the registered mark should be found merely descriptive because it only conveys to consumers that there's a crocodile on the box.


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