Munky Bars USA, Inc.

Trademark Trial and Appeal Board

Jun 7, 2007

No. 78506899 (T.T.A.B. Jun. 7, 2007)

Mailed: June 7, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In Re Munky Bars USA, Inc.1
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Serial No. 78506899
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Earl L. Martin III of Boehl Stopher & Graves, LLP for
applicant.

Kelly McCoy, Trademark Examining Attorney, Law Office 107
(J. Leslie Bishop, Managing Attorney).
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Before Holtzman, Cataldo, and Mermelstein, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:

Chardogs USA, Inc. filed an application to register the
mark shown below on the Principal Register for “frozen
confections,” in International Class 30.2

1 During the course of examination, the mark and application were
assigned from Chardogs USA, Inc. to Munky Bars USA, Inc. The
heading reflects current ownership of the mark and application.
2 Serial No. 78506899, filed October 27, 2004, based on an
allegation of a bona fide intention to use the mark in commerce.
Applicant has disclaimed the wording “BARS REAL CHOCOLATE REAL
PEANUT BUTTER” apart from the mark as shown.

THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 78506899

2

The examining attorney has issued a final refusal to
register under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that applicant’s mark so resembles
the mark MONKEY BARS, previously registered for “frozen
confections,”3 that, if used on or in connection with
applicant’s goods, it would be likely to cause confusion or
mistake or to deceive.
Applicant has appealed. Both applicant and the
examining attorney have filed briefs.4 We affirm the
refusal to register.

3 Registration No. 2629651, issued October 8, 2002, to Tofutti
Brands, Inc.
4 The Examining Attorney objected to three web pages attached to
applicant’s main brief on appeal, but not previously submitted.
The first page is from the website of the Securities and Exchange
Commission, and consists of a filing apparently made by the cited
registrant. The second page appears to be from the website of
the cited registrant, and the third page is an entry from the
Merriam-Webster OnLine dictionary on “monkey bars.” All three
web pages were cited in applicant’s response to the examining
attorney’s first office action, and applicant directly quoted
from the first two. The examining attorney did not inform the
applicant at the time that the cited evidence had not been
properly submitted into evidence, nor did he object to the
otherwise unsupported factual statements.
continued…
Serial No. 78506899

3
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
confusion issue. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also Palm
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003); In re Dixie Restaurants Inc.,
105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); In re
_____________________________
“The record in the application should be complete prior to the
filing of an appeal.” Trademark Rule 2.142(d). Because the
first and second web pages were not offered during examination of
the application, they may not be submitted on appeal. On the
other hand, the third web page is of the type of evidence of
which we may take judicial notice, and we do so in this case. In
re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006) (Board may
take judicial notice of online versions of printed dictionaries).
Accordingly, the objection is sustained as to the first two web
pages, and overruled as to the third.
While we have not considered the first two web pages themselves
in reaching this decision, we have considered applicant’s
statements in its December 6, 2005, response to the first office
action which cited the excluded web pages for support. These
statements were not objected to during examination as lacking in
support and applicant was never advised that it must submit a
copy of the web pages during examination as a prerequisite to
continued…
Serial No. 78506899

4
Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB
1999), and the cases cited therein.
Comparison of the Goods
We first consider the goods involved in this case. We
begin by noting that the question of likelihood of confusion
must be determined based on an analysis of the goods or
services recited in applicant’s application vis-à-vis the
goods or services recited in the registration, rather than
what the evidence shows the goods or services actually may
be. Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d
1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987). See also,
Octocom Systems, Inc. v. Houston Computer Services, Inc.,
918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1992); The Chicago
Corp. v. North American Chicago Corp., 20 USPQ2d 1715 (TTAB
1991).
The goods identified in the application and
registration, “frozen confections,” are identical.
Applicant’s attempts to distinguish its goods from those of
the registrant are unavailing because our analysis is
constrained to a comparison of the goods recited in the
cited registration with those in the application. In re
Elbaum, 211 USPQ 639 (TTAB 1981).
Applicant makes the following argument:
_____________________________
consideration. The examining attorney has thus waived any
objection to these statements which might have been made.
Serial No. 78506899

5
To the extent that the descriptions of goods
and services are similar, the Applicant
submits such similarity is due to the
preferred descriptions of goods and services
prescribed by the U.S. Patent and Trademark
Office guidelines. The Applicant informed
the Examining Attorney that it would not
object to amending the description of the
goods to which the mark applies for a more
narrow clarification, if the Examining
Attorney should request that be done.
Applicant submits to the Board that such an
amendment might cure the concerns expressed
by the Examining Attorney with respect to any
commonality between the class of goods to
which the marks apply.

Appl. Br. At 7-8.
As an aid to applicants and the examining corps in
considering identifications of goods and services, the USPTO
maintains an online Acceptable Identification of Goods and
Services Manual. TMEP § 1402.04 (4th ed. 2005). However,
it is the applicant’s responsibility to accurately and
acceptably identify its goods or services. Having chosen an
identification of its goods that was accepted by the USPTO,
applicant cannot now argue that its own identification is
inaccurate or too broad.
Applicant suggests that it would be willing to discuss
with the examining attorney limiting its goods if the
examining attorney requests such an amendment. However, any
amendment to the identification of goods should have been
made during examination or in a timely-filed request for
reconsideration. As a general matter, once an appeal
commences, examination and the time for proffering
Serial No. 78506899

6
amendments is closed. Trademark Rule 2.142(d)(“The record
in the application should be complete prior to the filing of
an appeal.”). Further, any amendment to narrow applicant’s
identification of goods to name some species of product
within the genus of “frozen confections,” would be
unavailing. The cited registration includes all frozen
confections, so any specific frozen confection would, by
necessity, be identical to at least some of the goods
covered by the cited registration.
Finally, as noted, see supra note 4, we have not
considered the web pages attached to applicant’s brief, in
comparing the goods of the applicant to those of the prior
registrant, although we have considered the following
statements made by applicant in its response to the first
office action for which the web pages were cited as
authority:
TOFUTTI BRANDS INC. is principally involved in the
development, production and marketing of TOFUTTI brand
soy-based, dairy-free frozen desserts and soy-based,
dairy-free food products which contain no butterfat or
cholesterol.

Response to office action, Dec. 6, 2005, citing
www.sec.gov/Archives/edgar/data/730349/000091066205000598/ex
99_1.txt.
Stick novelties that feature a rich chocolate center
surrounded by peanut butter flavored TOFUTTI, dipped in
a rich chocolate coating. They are available in most
health food stores.

Serial No. 78506899

7
Id., citing www.tofutti.com/sticks.0.html (describing the
cited registrant’s goods).
Although we accept these statement as true, they are of
little or no relevance. As we have explained, our task is
to compare the goods as recited in the application with the
goods as recited in the cited registration. Here, the goods
are recited identically, i.e., “frozen confections,” and
neither the applicant nor the cited registrant have limited
their goods to any particular type of frozen confection.
Even if it is shown that the registrant is currently
marketing only one particular type of “frozen confection”
under its MONKEY BARS mark, its registration is not so
limited, and its use of the mark on any other frozen
confection is covered by its registration.
Accordingly, since both applicant and the prior
registrant have identified their goods as “frozen
confections,” we must consider the respective goods to be
legally identical.
Comparison Of The Marks
We turn next to a determination of whether applicant’s
mark and the registered mark, when viewed in their
entireties, are similar in terms of appearance, sound,
connotation and commercial impression. The test is not
whether the marks can be distinguished when subjected to a
side-by-side comparison, but rather whether the marks are
Serial No. 78506899

8
sufficiently similar in their overall commercial impressions
that confusion as to the source of the goods or services
offered under the respective marks is likely to result. The
focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression
of trademarks. See Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975). Although the marks at issue must be
considered in their entireties, it is well settled that one
feature of a mark may be more significant than another, and
it is not improper to give more weight to this dominant
feature in determining the commercial impression created by
the mark. See In re National Data Corp., 753 F.2d 1056, 224
USPQ 749 (Fed. Cir. 1985).
Applicant’s mark includes the words MUNKY BARS split by
a caricature of an anthropomorphized banana on a stick. The
phrase REAL CHOCOLATE REAL PEANUT BUTTER appears above MUNKY
BARS, and A REVOLUTION IN FROZEN BANANAS! appears below.
While the banana design appears in the middle of the
wording, MUNKY BARS is set out in a large, eye-catching font
in the middle of the mark, physically dominating both the
banana design and the other wording in the overall visual
impression of the mark. In re: Appetito Provisions Co.
Inc., 3 USPQ2d 1553, 1554 (TTAB 1987).
In addition to being visually dominant, we find – as is
so often the case – that the literal elements of applicant’s
Serial No. 78506899

9
mark are more likely to be remembered by consumers and used
in calling for the goods. E.g., In re: Appetito Provisions,
3 USPQ2d at 1554 (“[I]f one of the marks comprises both a
word and a design, then the word is normally accorded
greater weight because it would be used by purchasers to
request the goods or services.”); Pass & Seymour, Inc. v.
Syrelec, 224 USPQ 845, 848 (TTAB 1984) (“[W]hile
respondent's mark does contain a design element, we think
the mark is clearly dominated by the verbal portion thereof,
since this is the portion by which people would call for the
goods and remember them.”). We therefore find that the
dominant portion of applicant’s mark is the wording MUNKY
BARS.
Further, applicant has submitted a disclaimer of the
descriptive phrase “REAL CHOCOLATE REAL PEANUT BUTTER,”
while the wording “A REVOLUTION IN FROZEN BANANAS!” appears
to be suggestive or laudatory in connection with applicant’s
goods. Descriptive or suggestive matter is relatively weak
in its contribution to the overall commercial impression of
the mark, and its addition to otherwise similar marks is
usually insufficient to avoid a likelihood of confusion. In
re Equitable Bancorporation, 229 USPQ 709, 711 (TTAB 1986).
The mark in the cited registration is MONKEY BARS, in
typed form. Without ignoring other elements of applicant’s
mark, the striking resemblance between the dominant portion
Serial No. 78506899

10
of applicant’s mark and the whole of the cited registrant’s
mark is undeniable. The MUNKY BARS portion of applicant’s
mark, while spelled differently, would likely be pronounced
the same way as the cited mark, and is visually nearly
identical to it. In this regard, we note that the cited
mark was registered as a “typed” mark. As such, the
registration covers depictions of the mark in a variety of
typefaces, stylizations, and colors, including depictions
which may be similar to that used by applicant. See
Phillips Petroleum Co. v. C.J. Webb, Inc., 442 F.2d 1376,
170 USPQ 35, 36 (CCPA 1971) ("The drawing in the instant
application shows the mark typed in capital letters,
and...this means that [the] application is not limited to
the mark depicted in any special form"); Trademark Rule
2.52(a). We find that the commercial impressions of the
marks as a whole are substantially similar.
Applicant’s arguments to the contrary are unpersuasive.
Applicant makes much of the difference in the way the
dominant part of its mark and the cited mark are spelled;
however, we find that the aural similarities outweigh the
minor spelling differences between MUNKY BARS and MONKEY
BARS. And given the imperfect recollection of casual
purchasers of inexpensive items such as those at issue here,
we find that the similarities of the respective marks
outweigh their differences. ESSO Standard Oil Co. v. Sun
Serial No. 78506899

11
Oil Co., 229 F.2d 37, 108 USPQ 161, 163 (D.C. Cir.
1956)(“the points of similarity are of greater importance
than the points of difference” (citation omitted)).
Applicant contends that, as shown in its dictionary
definition, see supra, note 4, the words “MONKEY BARS” in
the cited registration refer to “a child’s playground
apparatus,” but that the wording “MUNKY BARS” in applicant’s
mark “is a novel construction, and not a part of ordinary
language.” To the contrary, we find that – notwithstanding
the slight difference between MONKEY and MUNKY – the average
consumer of such goods would immediately recognize that
portion of applicant’s mark as identical in meaning and
commercial impression to that of the cited prior registrant.
Other Factors
Because neither the goods of the applicant nor those of
the registrant are restricted in any way, we find that the
applicant’s goods and those of the cited registrant would be
sold in the same channels of trade and to the same class of
purchasers. In Re Jump Designs, LLC, 80 USPQ2d 1370, 1374
(TTAB 2006); In Re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Applicant argues that the purchasers of the
registrant’s goods are “very sophisticated” and highly
discriminating, thus reducing the likelihood of any
confusion. In particular, applicant argues that the
registrant’s goods are usually purchased by health-conscious
Serial No. 78506899

12
consumers with special dietary needs, who take care in their
food purchases. But as noted above, we must consider
registrant’s goods to be “frozen confections,” as recited in
its registration, and not limited to the goods applicant
claims registrant actually sells. There is no indication in
this record that purchasers of “frozen confections” are
unusually sophisticated, that the goods are particularly
expensive, or that general purchasers of such goods exercise
anything more than ordinary care in making purchasing
decisions.
Conclusion
As noted, applicant’s goods are identical to those
identified in the cited registration, and the channels of
trade and classes of purchasers are also identical. When
the relevant goods are identical or highly similar, a lesser
degree of similarity of the marks is necessary to support a
finding of likelihood of confusion. ECI Div. of E-Systems,
Inc. v. Envtl. Communications Inc., 207 USPQ 443, 449 (TTAB
1980). We conclude that in view of the substantial
similarity in the commercial impressions of applicant’s mark
and that of the registrant’s, their contemporaneous use on
the identical goods involved in this case is likely to cause
confusion as to the source or sponsorship of such goods.
Decision: The refusal under Section 2(d) of the Act is
affirmed.