Groovalicious Inc.

Trademark Trial and Appeal Board

Mar 31, 2008

No. 78795824 (T.T.A.B. Mar. 31, 2008)

Mailed: March 31, 2008
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Groovalicious Inc.
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Serial No. 78795824
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Groovalicious Inc. (Peter Solomita, President), pro se.

Kimberly Frye, Trademark Examining Attorney, Law Office 113
(Odette Bonnet, Managing Attorney).
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Before Hairston, Zervas and Walsh, Administrative Trademark
Judges.

Opinion by Hairston, Administrative Trademark Judge:

Groovalicious Inc. has filed an application to
register the mark shown below for brownies and cookies in
International Class 30.1

1 Serial No. 78795824, filed January 20, 2006, alleging dates of
first use of June 29, 2005.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 78795824
2
The words BISCUIT COMPANY are disclaimed apart from the
mark as shown.
Registration has been refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the
ground that applicant’s mark, when applied to applicant’s
goods, so resembles the mark LI’L BUDDIES (typed form),
which is registered for cookies in International Class 30,2
as to be likely to cause confusion, mistake or deception.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney have filed briefs.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In any likelihood of confusion analysis,
two key considerations are the similarities between the
marks and the similarities between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).

2 Registration No. 2312065, issued January 25, 2001; affidavits
under Sections 8 and 15 accepted and acknowledged.
Ser No. 78795824
3
Considering first the goods, we note that they are
identical in part. The cited registration covers cookies
which are legally identical to the cookies in applicant’s
application. Further, the brownies identified in
applicant’s application are closely related to registrant’s
cookies.
Applicant, however, maintains that the channels of
trade for the respective goods differ so significantly that
there is no likelihood of confusion. Specifically,
applicant contends that:
Applicant’s goods are available at coffee shops,
restaurants and similar establishments in the New
York area and via delivery or mail from its
location in Brooklyn. The registrant, Joe Corbi’s
Wholesale Pizza, Inc. (“Registrant”), on the other
hand offers its goods to various charitable and
community organizations for fundraising efforts.
(Brief at 5).

In support of its argument, applicant submitted a printout
of the registrant’s website.
It is well settled that the issue of likelihood of
confusion is determined on the basis of the goods as
identified in applicant’s application and the cited
registration, regardless of what the record may reveal as
to the particular nature of those goods, their actual
channels of trade, or the classes of purchasers to which
they are in fact directed and sold. See, e.g., Octocom
Ser No. 78795824
4
Systems Inc. v. Houston Computer Services Inc., 918 F.2d
937, 16 USPQ2d 1783 (Fed. Cir. 1990); and Canadian Imperial
Bank of Commerce, N.A. v. Wells Fargo Bank, 811 F.2d 1490,
1 USPQ2d 1813 (Fed. Cir. 1987). Further, where the goods
in an application and/or cited registration are broadly
described, such that there are no restrictions as to trade
channels and purchasers, it is presumed that the
identification of goods encompasses not only all goods of
the nature and type described therein, but that the
identified goods are provided in all channels of trade
which would be normal therefor, and that they would be
purchased by all potential customers thereof. See, e.g.,
In re Elbaum, 211 USPQ 639 (TTAB 1981).
Here, the identifications of goods in applicant’s
application and the cited registration contain no
limitations as to channels of trade and methods of
distribution. In view thereof, we must presume that
applicant’s brownies and cookies and registrant’s cookies
are marketed in all the usual channels of trade for goods
of this type (e.g., bakeries, grocery stores, and
convenience stores) to the same class of purchasers,
Ser No. 78795824
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namely, ordinary consumers.
Furthermore, the products involved herein are
inexpensive, frequently replaceable food items that are
likely to be purchased on impulse. It has often been
stated that purchasers of such products are held to a
lesser standard of purchasing care and, thus, are more
likely to be confused as to the source of the goods. See
Specialty Brands, Inc., 748 F.2d 669, 223 USPQ 1281 (Fed.
Cir. 1984); and In re Martin’s Famous Pastry Shoppe, Inc.,
748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Under the circumstances, it is clear that if such
goods are marketed under the same or similar marks,
confusion as to the source or sponsorship thereof would be
likely to occur.
We turn then to a consideration of the marks. We must
determine whether applicant’s mark and registrant’s mark,
when compared in their entireties, are similar or
dissimilar in terms of sound, appearance, connotation and
commercial impression. Although the marks 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,
Ser No. 78795824
6
224 USPQ 749, 751 (Fed. Cir. 1985) [“That a particular
feature is descriptive or generic with respect to the
involved goods or services is one commonly accepted
rationale for giving less weight to a portion of a mark”].
Furthermore, the test is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
terms of their commercial impression that confusion as to
the source of the goods and/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). Finally, “when marks would appear on virtually
identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion
declines.” Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 864, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992).
When we compare applicant’s mark LITTLE BUDDY BISCUIT
COMPANY with registrant’s mark LI’L BUDDIES in their
entireties, we find that the marks are similar in sound,
appearance, connotation and commercial impression.
Ser No. 78795824
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The term LI’L BUDDIES is registrant’s entire mark.
The highly similar term LITTLE BUDDY is the dominant
portion of applicant’s mark. Although applicant’s mark
includes the words BISCUIT COMPANY, these words are given
little weight in our comparison of the marks because they
merely describe applicant’s type of business and are of no
trademark significance. Because the term LI’L BUDDIES is
registrant’s entire mark and LITTLE BUDDY, the dominant
portion of applicant’s mark are substantially similar, the
marks are similar in sound.
The marks are also similar in appearance. In the
present case, the descriptive words BISCUIT COMPANY are
smaller in font size and appear below the dominant feature
of applicant’s mark, namely LITTLE BUDDY. Also, because
registrant’s mark LI’L BUDDIES is in typed form, it may be
displayed in any reasonable manner, including the same
stylized lettering as used by applicant for the term LITTLE
BUDDY in its mark. See, e.g., Phillips Petroleum Co. v.
C.J. Webb, Inc., 442 F.2d 1376, 170 USPQ 35 (CCPA 1971).
Further, the marks convey a similar meaning and
commercial impression in relation to the respective goods.
Registrant’s mark consists of the term LI’L, which is an
informal version of the word LITTLE in applicant’s mark,
and BUDDIES which is plural for the word BUDDY in
Ser No. 78795824
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applicant’s mark. Although applicant’s mark includes the
words BISCUIT COMPANY, they do not significantly change the
meaning or commercial impression of applicant’s mark.
Several additional arguments made by applicant require
comment.
Applicant has submitted copies of third-party
registrations of pairs of marks for various goods, e.g.,
BUDDIE and design for canned vegetables and BUDDY’S for
frozen breakfasts, sandwiches and frozen meals made of
pasta or rice. Applicant argues that the marks involved in
this case are not as similar to each other as the pairs of
marks in these registrations, and its mark should therefore
be allowed to register. These third-party registrations do
not compel a different result herein. It is well settled
that each case must be determined on its own merits. See,
e.g., In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564 (Fed. Cir. 2001).3
Applicant argues that at registrant’s website,
registrant’s “primary brand seems to be JOE CORBI,” and
this makes confusion between the involved marks unlikely.
(1/5/07 Response at 5). Even if registrant uses JOE CORBI

3 Also, we observe that in many of the examples, the goods of the
respective registrants are not identical/closely related, and in
other examples there are additional design elements or wording
that further distinguishes the marks.
Ser No. 78795824
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along with the mark LI’L BUDDIES on its goods, this can
have no bearing on our likelihood of confusion
determination because the cited registration covers LI’L
BUDDIES alone. See Dow Corning Corp. v. The Doric Corp.
192 USPQ 106 n.4 (TTAB 1976) and cases cited therein.
Finally, applicant asserts that it and the registrant
have used their marks concurrently for two years without
any instances of actual confusion, and this shows that
confusion is not likely to occur. We are not persuaded by
this argument. Applicant has not provided any evidence as
to the extent of its use, nor is there any evidence as to
registrant’s use, such that we can determine whether their
has been a meaningful opportunity for confusion to occur.
“Uncorroborated statements of no known instances of actual
confusion are of little evidentiary value…. The lack of
actual confusion carries little weight … especially in an
ex parte context.” Majestic Distilling, supra, 65 USPQ2d
at 1205.
In view of the foregoing, we conclude that consumers
who are familiar with registrant’s mark LI’L BUDDIES for
cookies would be likely to believe, upon encountering
applicant’s mark LITTLE BUDDY BISCUIT COMPANY for cookies
and brownies, that such identical and otherwise closely
Ser No. 78795824
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related goods emanate from, or are sponsored by or
associated with, the same source.
Decision: The refusal to register under Section 2(d)
is affirmed.