In a recent Trademark Trial and Appeal Board (“Board” or “TTAB”) decision, the Board reversed the Examiner’s refusal to register the mark YUMMIES and Design (a winking smiley face wearing a crown) for Latin American style food products, namely, processed flavored plantains slices, processed flavored yucca chips, fried pork with salt and chili, potato flakes of different flavors, fired flavored peanuts and baked flavored peanuts and fried corn tortilla snack foods with different flavors. The Examining Attorney cited three different registrations (each with different owners) against the Applicant’s mark. These included: (1) a special format mark for YUMMIES (with a heart shape over the letter “i” in YUMMIES) for candy for consumption on and off the premises; (2) a special format mark for YUMMY’S CHOICE (with a blue ribbon after the term choice) for dairy-based snack foods excluding ice cream, ice milk and frozen yogurt; fruit-based food beverage; oils and fats for food; snack food dips; vegetable-based snack foods; and (3) a standard character mark for SUPER YUMMYS for vegetable-based snack foods; fruit-based snack foods; and milk products excluding ice cream, ice milk and frozen yogurt on the Supplemental Register.
Since The Board affirms approximately ninety percent of the cases appealed in likelihood of confusion refusals, the question to ask is what makes this case different. Before arriving at the answer the Board summarized its method for reviewing these types of refusals. The Board analyzes the facts as they relate to the relevant factors set out in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“du Pont”). Although there are thirteen factors to consider, the two key considerations are the similarities between the marks and the relatedness of the goods or services. The Board in this matter focused on the fact that the shared term between the marks was weak, and that there were differences among the marks.
The Board did not have a lot of evidence to consider for the relatedness of the goods and trade channels. One registration did contain a restriction in trade channels, but the others did not. Since the Applicant failed to present arguments on these factors, the Board concluded that the similarities of the goods, channels of trade and overlap of the classes of consumers weighed in favor of finding confusion. The Board moved on to review the marks, and the marks have to be evaluated in their entireties in connection with visual appearance, sound, meaning and commercial impression. Consumers will retain a general and not a specific impression of a trademark. A good test is to observe a mark for five to ten seconds, then to close your eyes, and think of what you remember about the mark.