Boyer Candy Co., Inc.

Trademark Trial and Appeal Board

Jun 6, 1997

EX (T.T.A.B. Jun. 6, 1997)

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB June 9, 1997
Hearing: Paper No. 19
October 8, 1996 PTH

U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Boyer Candy Company, Inc.
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Serial No. 74/382,736
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David L. Just of Lucas & Just for Boyer Candy Company, Inc.
John Michos, Trademark Examining Attorney, Law Office 105
(Thomas Howell, Managing Attorney).
_______
Before Cissel, Quinn and Hairston, Administrative Trademark
Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application has been filed by Boyer Candy Company,
Inc. to register the mark BONBONNIERE for filled chocolate
candies.1 Applicant seeks registration of its mark pursuant
to the provisions of Section 2(f) of the Trademark Act.
The Trademark Examining Attorney has refused
registration under Section 2(d) of the Trademark Act,

1Application Serial No. 74/382,736, filed April 21, 1993;
alleging a date of first use and date of first use in commerce
of March 1968.
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contending that applicant's mark, when applied to filled
chocolate candies, is likely to cause confusion with the
registered mark LA BONBONNIERE BAKE SHOPPE (the words "BAKE
SHOPPE" are disclaimed) for retail bake shop and wholesale
baking services.2
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs.
Applicant's counsel and the Examining Attorney appeared at
the oral hearing before the Board.
In determining likelihood of confusion, two key
considerations are the similarities in the marks and the
similarities in the goods/services.
Turning first to a consideration of the marks,
applicant does not dispute that its mark BONBONNIERE is
substantially similar to registrant's mark LA BONBONNIERE
BAKE SHOPPE. As pointed out by the Examining Attorney,
BONBONNIERE is the dominant portion of registrant's mark and
the portion of the mark customers are most likely to
remember. This portion is identical to the entirety of
applicant's mark.
We turn next to a consideration of the goods and
services. Applicant maintains that filled chocolate candies
are in no way related to bake shops and baking services;
that bake shops ordinarily sell cakes, donuts, pastries,
muffins and the like; and that filled chocolate candies are

2Registration No. 1,516,846 issued December 13, 1988; Sections 8
& 15 affidavit filed.
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a specialty item, made with equipment not generally found in
bake shops.
The Examining Attorney, however, maintains that it is
common knowledge that bake shops sell candy; that the
recitation of services in the cited registration is broad
enough to encompass all of the goods normally sold in a bake
shop, including candy; and that the use of substantially
similar marks on applicant's goods and registrant's services
would be likely to cause confusion. In an attempt to
demonstrate the relatedness of the goods/services, the
Examining Attorney relies on one third-party registration
which covers candy and bakery store services, and several
third-party registrations which indicate (1) that entities
have registered a single mark for candy on the one hand and
baked items on the other hand and (2) that entities have
registered a single mark for bake shops on the one hand and
candy store services on the other hand.
We note that goods and/or services do not have to be
the same or even competitive in order to support a finding
of likelihood of confusion. It is quite enough if the goods
and/or services with which the marks are used are related in
some manner such that they would be seen by the same
individuals under circumstances which would cause them to
believe, albeit mistakenly, that they emanate from the same
source. See General Mills Fun Group, Inc. v. Tuxedo
Monopoly Inc., 204 USPQ 396 (TTAB 1979), aff'd 648 F.2d
1335, 209 USPQ 986 (CCPA 1981) and cases cited therein.
Ser No. 74/382,736
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One of the third-party registrations submitted by the
Examining Attorney (Registration No. 1,430,447 for the mark
THE ORIGINAL COOKIE CO. and design for, inter alia, candy
and retail bakery store services) serves to suggest that the
specific goods and services involved in this appeal are of a
type which emanate from a single source. In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993). The other
third-party registrations cover slightly different goods or
services, designating either candy and bakery products as
the goods or bakery store services and candy store services
as the services. Although these registrations do not list
the goods as candy and the services as bakery store
services, they nonetheless serve to demonstrate that candy,
baked goods, candy store services and bakery store services
are closely related and may be expected to emanate from a
single source if offered under the same mark.
Even without this third-party registration evidence, we
would still find that candy and retail bake shop services
are sufficiently related that when substantially similar
marks are used in connection therewith, confusion is likely.
The registrant's services involve the sale of baked goods,
and in the absence of any limitations in the recitation of
services, we must presume that registrant sells all kinds of
baked goods to all classes of purchasers. Candy and baked
goods, such as donuts, muffins, pies and cakes all fall into
the category of goods served for snacks or desserts. Such
items are purchased by average purchasers upon impulse with
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little or no discrimination. See eg., Paul F. Beich Company
v. J & J Oven Company, Inc., 147 USPQ 162 (TTAB 1965) [use
of virtually identical marks on candy and retail pretzel
shop services is likely to cause confusion]. We find
therefore, that, customers familiar with registrant's LA
BONBONNBIERE BAKE SHOPPE retail bake shop and wholesale
baking services would be likely to believe, upon
encountering applicant's BONBONNBIERE filled chocolate
candies, that the goods and services originated with, or
were in some way associated with the same source.
Although applicant did not raise this matter, we have
not overlooked the suggestiveness of the registered mark.
However, even assuming that such mark is weak due to its
suggestive nature, even weak marks are entitled to
protection where confusion is likely.
Finally, even if we had doubt on the issue of
likelihood of confusion, such doubt must be resolved in
favor of the registrant. See In re Martin's Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Decision: The refusal to register under Section 2(d)
is affirmed.
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R. F. Cissel
T. J. Quinn
P. T. Hairston
Administrative Trademark
Judges, Trademark Trial
and Appeal Board
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