TTAB Renders Split Decision in MRS. CLAUS Section 2(d) Appeal

The USPTO refused to register the marks MRS. CLAUS, MRS. CLAUS COOKIES, and MRS. CLAUS COOKIE COMPANY [COOKIES and COOKIE COMPANY disclaimed] for, inter alia, bakery goods and candy (including chocolate for confectionery and bread) in Class 30 and for educational services in the field of culinary arts in Class 41, finding confusion likely with the registered mark MRS. CLAUS for "Yeast; Baking powders; Baking spices; Confectionery chips for baking." The Board affirmed the refusal as to applicant's goods but not as to the services. In re Mrs. Claus Cookie Company, LLC, Serial Nos. 97550335, 97550357, and 97550571 (September 16, 2024) [not precedential] (Opinion by Judge Elizabeth A. Dunn).

As for the marks, despite the differences in sight and sound resulting from the addition of the disclaimed terms COOKIES and COOKIE COMPANY, the Board found the marks MRS. CLAUS, MRS. CLAUS COOKIES, and MRS. CLAUS COOKIE COMPANY to be "identical and highly similar to the registered mark MRS. CLAUS." Therefore, the first DuPont factor weighed heavily in favor of a finding of likelihood of confusion.

As to the goods, the Board noted that registrant's "Confectionery chips for baking" is broadly worded and encompasses applicant's chocolate confectionery chips for baking. Likewise, applicant’s “Chocolate for confectionery and bread” and “Confectionery, namely, candy and chocolate" are broadly worded and encompass chocolate for confectionary chips for baking.

We find the goods in part legally identical. It is sufficient for a finding of likelihood of confusion if relatedness is established for any item encompassed by the recitation of goods within a particular class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981).

The Board found the non-identical goods to be related. Applicant itself recognized the inherent relationship between the registered ingredients for baking and its own baked goods, stating "some of Registrant’s goods are used in the production of some finished baked goods".

The Board agreed with the Office that the baking goods of Registrant and the baked goods of Applicant appeal to ordinary consumers. "While we can agree with Applicant’s general contention that consumers enjoy 'almost limitless options' for purchasing baked goods, we cannot agree with Applicant’s unsupported contention that the need to exercise choice itself requires sophistication."

Turning to applicant's services, the Board noted that the "the applications and registration are not evidence of a relationship between educational services in the field of culinary arts and Applicant’s baking goods." It found that "consumers who seek education in the culinary arts likely to exercise more care in the selection of the educational services than the ordinary consumer purchasing baking goods."

In sum, "the scant record fails to demonstrate that there is any relationship between the registered goods and Applicant’s educational services or their channels of trade and classes of consumer." And the Board also found "a variance in the sophistication of consumers."

And so, the Board affirmed the refusal as to applicant's goods but reversed as to the services.

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TTABlogger comment: Is the mark MRS. CLAUS primarily merely a surname? Would you call the USPTO's refusal half-baked?

Text Copyright John L. Welch 2024.