Bahlsen KGv.Wild Ideas Int'l., Inc.

Trademark Trial and Appeal Board

Dec 31, 1998

No. 91099719 (T.T.A.B. Dec. 31, 1998)

Hearing: Paper No. 19
January 13, 1998 JQ
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB DEC. 29, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Bahlsen KG
v.
Wild Ideas International, Inc.
_____
Opposition No. 99,719
to application Serial No. 74/567,538
filed on August 30, 1994
_____
Michael J. Striker for Bahlsen KG.
Paul A. Welter of Merchant, Gould, Smith, Edell, Welter &
Schmidt for Wild Ideas International, Inc.
______
Before Seeherman, Quinn and Walters, Administrative
Trademark Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application has been filed by Wild Ideas
International, Inc. to register the mark ZOOKIES for
“cookies.”1

1 Application Serial No. 74/567,538, filed August 30, 1994,
alleging dates of first use of November 1993. The Board notes
that this application incorrectly matured into Registration No.
1,936,792 on November 21, 1995. The Board will forward the
application file to the Assistant Commissioner for Trademarks for
Opposition No. 99,719
2
Registration has been opposed by Bahlsen KG under
Section 2(d) of the Trademark Act on the ground that
applicant’s mark, when applied to cookies, so resembles
opposer’s previously used and registered mark ZOO for
“cookies”2 as to be likely to cause confusion, or to cause
mistake, or to deceive.
Applicant, in its answer, denied the salient
allegations of likelihood of confusion.
The record consists of the pleadings; the file of the
involved application; trial testimony, with related
exhibits, taken by opposer; and a certified copy of
opposer’s pleaded registration made of record by opposer’s
notice of reliance. Applicant neither took testimony nor
introduced any other evidence. Both opposer and applicant
filed briefs on the case. An oral hearing was held at which
only opposer’s counsel appeared.
According to Frank Muchel, president of opposer’s
exclusive distributor in the United States, opposer’s
cookies are in the shapes of animals. The most recent
figures show wholesale sales of $259,802 in 1995 which,
according to Mr. Muchel, translates to approximately $500,00
at retail. Sales were expected to rise by about twenty per
cent in 1996.

consideration of the cancellation of this inadvertently issued
registration.
Opposition No. 99,719
3
No information about applicant’s business activities
under the applied-for mark is known.
Our determination under Section 2(d) is based on an
analysis of all of the probative factors in evidence that
are relevant to the factors bearing on the likelihood of
confusion issue. In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods.
We first turn our attention to the goods. The goods,
as identified in opposer’s registration and the involved
application, are identical, that is, “cookies.”3 Moreover,
applicant admits that the channels of trade are the same.
Further, it is clear that the goods would be bought by the
same purchasers.
We next turn to consider the marks. Given the identity
between the parties’ goods, we note, at the outset, that
when marks are applied to identical goods, “the degree of
similarity [between the marks] necessary to support a
conclusion of likely confusion declines.” Century 21 Real
Estate Corp. v. Century Life of America, 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992). The marks ZOO and

2 Registration No. 945,881, issued October 24, 1972; renewed.
Opposition No. 99,719
4

3 The record indicates that, in reality, the nature of the
cookies is identical, that is, cookies in the shapes of animals.
Opposition No. 99,719
5
ZOOKIES share similarities in sound and appearance. We also
find that the marks, when applied to identical goods,
engender similar overall commercial impressions. Applicant
has adopted the entirety of opposer’s mark and merely added
the portion “—KIES” to form ZOOKIES, a mark clearly
suggestive of animal-shaped cookies. Although opposer’s
mark ZOO may be somewhat suggestive as well, the marks
convey the same suggestion, namely animal-shaped cookies.
And, while applicant has argued that this suggestiveness
limits the scope of protection to be accorded opposer’s
mark, we also note that the record is devoid of evidence
showing any third-party uses of the same or similar marks.
In making our determination, we have kept in mind the normal
fallibility of human memory over time and that the average
consumer normally retains a general, rather than a specific,
impression of trademarks encountered in the marketplace.
Another factor in favor of finding likelihood of
confusion is the conditions under which sales are made.
Although applicant asserts that there is no evidence to
support opposer’s proposition that cookies are casually
purchased, we hardly can find fault with opposer’s
statement. Opposer’s “cookies” are not restricted as to
price, and it must be assumed that the cookies include
lower-priced ones. Mr. Muchel testified that opposer’s
cookies are sold in places such as supermarkets and
Opposition No. 99,719
6
warehouse club outlets. Based on the record (not to mention
common knowledge), we have no problem agreeing with opposer
that cookies are the subject of casual purchases.
Applicant takes opposer to task for its failure to
submit any evidence of actual confusion. Suffice it to say
that there is no meaningful way to gauge the absence of
evidence of actual confusion given the fact that we do not
know the extent of applicant’s use of its mark. We are
unable to ascertain, therefore, whether there has been an
opportunity for actual confusion to have occurred in the
marketplace. Also, given the relatively inexpensive nature
of cookies, it is questionable whether any actual confusion
on the part of purchasers would even be brought to the
parties’ attentions. In any event, the applicable test here
is likelihood of confusion, not actual confusion, and, as
often stated, it is unnecessary to show actual confusion in
establishing likelihood of confusion. See, e. g., Weiss
Associates Inc. v. HRL Associates Inc., 902 F.2d 1546, 1549,
14 USPQ2d 1840, 1842-3 (Fed. Cir. 1990).
In view of the above, we conclude that purchasers
familiar with opposer’s cookies sold under the mark ZOO
would be likely to believe, upon encountering applicant’s
mark ZOOKIES for cookies, that the goods originated with or
were somehow associated with or sponsored by the same
entity.
Opposition No. 99,719
7
Decision: The opposition is sustained and registration
to applicant is refused.
E. J. Seeherman
T. J. Quinn
C. E. Walters
Administrative Trademark
Judges, Trademark Trial
and Appeal Board