Kellogg Co.v.ACH Food Companies, Inc.

Trademark Trial and Appeal Board

Nov 26, 2003

No. 91096699 (T.T.A.B. Nov. 26, 2003)

Mailed: November 26, 2003
Paper No. 50
csl
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Kellogg Company
v.
ACH Food Companies, Inc.
_____
Opposition Nos. 91096445, 91096699 and 91097357
to application Serial Nos. 74339482, 74339484 and 74339485,
filed on December 14, 1992
_____
Jeffrey H. Kaufman of Oblon, Spivak, McClelland, Maier &
Neustadt, P.C. for Kellogg Company.
Don B. Finkelstein, Esq. for ACH Food Companies, Inc.
Before Simms, Cissel and Bucher, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:

Kellogg Company (opposer) has opposed the applications
of ACH Food Companies, Inc., by assignment and change of
name from the original applicant, Pacific Grain Products,
Inc., a California corporation, to register the marks NUTTY
OATS (“OATS” disclaimed), NUTTY CORN (“CORN” disclaimed)
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Opp. Nos. 91096445, 91096699 and 91097357
2
and NUTTY MULTIGRAIN (“MULTIGRAIN” disclaimed), all for
breakfast cereal.1 A consolidated trial was conducted
during which both parties took testimony, introduced
exhibits in connection therewith, and filed notices of
reliance on various material. Briefs have been filed, but
no oral hearing was requested.
In the notices of opposition, opposer has alleged that
it makes, distributes, sells and advertises food products;
that third parties have used such terms as “nutty,” “oats,”
“corn” and “multigrain” as descriptive names of the same or
similar food products so that the marks applicant seeks to
register are “common descriptive terms, incapable of
functioning as trademarks” and “incapable of denoting a
specific source of origin” for breakfast cereal; and that,
alternatively, applicant has abandoned whatever trademark
rights it had because applicant has allowed third parties
to use these terms as descriptive names for the same or
similar food products.2 Opposer also asserts that “The bona
fides of Applicant’s intent-to-use are not apparent from
materials of record in the subject application[s], and
Opposer therefore challenges same and leaves the Applicant

1 Application Serial Nos. 74339482, 74339484 and 74339485, all
filed December 14, 1992, based on allegations of applicant’s bona
fide intention to use the marks in commerce.
2 We consider this pleading of “abandonment” to be part of
opposer’s claim that applicant’s marks are unregistrable because
they are incapable of functioning as trademarks.
Opp. Nos. 91096445, 91096699 and 91097357
3
to its proof with regard to the nature and sufficiency of
its intent to use at the time of filing.”
In its answer, applicant has denied these allegations
and has asserted that its marks are arbitrary or fanciful,
or, at most, suggestive of its goods. The Board then
consolidated these oppositions and a trial was held, as
noted above.
Opposer’s Record
According to James A. Melluish, opposer’s associate
director for cereal marketing, opposer sells food products
with both nuts and oats and uses such terms as “multi-grain
flakes,” “nutty taste,” “crisp corn texture” and “crunch
honey and oat clusters” to describe its products, as well
as their taste and texture. Mr. Melluish testified that it
is important for opposer to be able to use various terms
descriptively, at 41, 42 and 43:
Q. Directing your attention to the trademarks
that are at issue in this opposition and the use
by Pacific Grain of the terms “nutty,” “oats,”
“corn” and “multi-grain.” Is it important for
Kellogg to be able to use those terms?
…
A. Yes, we currently use some of those terms.
Corn, obviously Corn Flakes. Multi-grain is a
descriptor that we use, I know, in Kellogg Smart
Start. We refer to that product as consisting of
sweetened multi-grain flakes, crunchy rice and
oat clusters. So oat and multi-grain are both
contained in there.
Nutty is a descriptor that we use to--that we
would use to describe the flavor of a product
Opp. Nos. 91096445, 91096699 and 91097357
4
which contains nuts. And several products that
we sell do contain nuts.
Q. Do you believe there would be adverse
consequences to Kellogg Company if a competitor
was able to claim exclusive rights to the term
“nutty”?
…
A. “Nutty” describes the flavor of nuts and
nuts are fairly common ingredient [sic] within
the cereal category. Several brands that we
compete with contain nuts. Several brands that
we sell contain nuts. Our ability to describe to
consumers what the flavor and texture of the
product they are purchasing is going to be is
considered important. Not being able to describe
a product containing nuts as nutty would limit
our ability to describe--to fully describe that
product to the consumer.
…
A. We sell products that contain both nuts and
oats, and to limit our ability to describe the
flavor of that product, I’m thinking specifically
of low fat granola, to--yes, to limit our ability
to describe that--to describe the product with
those words would be a problem.
Q. How about as to the combination “nutty
corn.” Would you believe that that would be
harmful to Kellogg Company if a competitor could
claim exclusive rights to that combination?
A. Yes. The--as I said, nuts are a fairly
common ingredient in many cereals in the category
several of our products contain corn. And our
inability to use a “nutty corn” description would
limit our ability in the area of new products and
product enhancements.
Q. And would your view be the same with regard
to the combination “nutty multi-grain”?
A. Yes, for the same--for the same reasons.
Opposer also took the testimony of Andrew M.
Weinstein, a legal assistant of the law firm representing
opposer. He testified that he bought different cereals at
a store in Alexandria, Virginia. Those cereal boxes
Opp. Nos. 91096445, 91096699 and 91097357
5
contained the following language: “Honey Nut…with nutty,
crunchy walnuts and honey” (Quaker Oatmeal Baked Apple);
“We take plump, juicy raisins and roll them in a nutty
coating…” (General Mills Raisin Nut Bran); “A natural wheat
and barley cereal with a hearty, nutty crunch” (Grape-Nuts
cereal); “P.S. Sliced almonds give it a nutty crunch!”
(Post Honey Bunches of Oats cereal); and “Grape-Nuts®
cereal has a naturally sweet, nutty crunch that’s full of
carbohydrate energy.”
Opposer has made of record third-party registrations
for the following marks (in capital letters) and goods,
among others: NUTTY BAR sugar wafers (Supplemental
Register); NUTTY SNAP milk chocolate bar (disclaimer of
“NUTTY”); NUTTY DOODLE S corn puffs coated with caramel and
peanut bits (“NUTTY” disclaimed); DOUBLE NUTTY cookies
(“NUTTY” disclaimed); GET NUTTY! snack mix (“NUTTY”
disclaimed). Opposer also made of record a dictionary
definition of “nutty” (“1: having or producing nuts 2:
having a flavor like that of nuts”).
Language from other material of record including
cereal boxes shows the following usages: “Nut-Covered
Raisins” and “Nutty Raisin Taste” (from General Mills
Raisin Nut Bran); “Great Nutty Taste” (from General Mills
Clusters cereal); “Honey Nutty Snack Mix” (recipe from
Opp. Nos. 91096445, 91096699 and 91097357
6
General Mills Honey Nut Cheerios cereal); “Kellogg’s Honey
& Nut Corn Flakes” with a recipe on the back for “Nutty
Chocolate Drops”; “The only nutty Corn Flakes” (from a box
of corn flakes); a recipe for “Nutty Bran Stuffing
Casserole”; “Nutty Honey Taste” (coupon); and a recipe for
“Nutty Cornflake Bars”.
The packaging for applicant’s NUTTY CORN cereal
includes the language “The nutty, crunchy taste of toasted
corn kernels” and “Nutty Corn™ captures the gentle, nutty
flavor of corn and corn bran in a crunchy nugget that stays
crisp in milk until the last spoonful. Nutty Corn is one
of a family of nutty grain cereals that includes Nutty
Wheat & Barley™ and Nutty Rice®”;3 “At last! A nutritious
breakfast cereal with a nutty, crunchy texture and the
taste of corn”; “Toasting brings out the rich, nut-like
flavor of the corn and honey imparts its gentle sweetness
to the cereal.” Applicant’s Nutty Rice cereal box
indicates that “The toasting of rice brings out the
delicious nutty flavor.”
Opposer has made of record a great number of articles
from the Nexis database which use the various words sought
to be registered by applicant for various products. The

3 Applicant’s Registration No. 1,543,767, issued June 13, 1989, of this
mark was cancelled under Section 8 of the Act, 15 USC §1058.
Opp. Nos. 91096445, 91096699 and 91097357
7
following are some examples: “It’s the oats that give
these rolls their wonderful grainy texture and nutty
flavor”; “Whole-grain flapjacks are nutty-tasting”; “nutty
homemade cornbread”; “grains that are nutty and sweet
tasting”; “nutty-tasting corn tortillas”; “recipe… offers a
hint of sweetness with the nutty oats”; “Nutty Oat Bars”
(recipe); “steel-cut oats have a nutty flavor…”; “nutty oat
topping”; “enhanced by a nutty oat flavor”; “nutty corn
flavor”; “nutty oatmeal”; “chewier, nutty texture”
(describing oatmeal from steel-cut oats); “nutty flavor”
(barley); “nutty flavor” (toasted corn); “nutty flavor”
(wild rice); “a nutty-tasting grain” (wheat and rye);
“full, rich, nutty flavor” (buckwheat); “nutty” (whole
wheat bread); “nutty flavor” (toasted oats); “nutty-
flavored grain” (spelt); “sweet and nutty” (rice); “a nutty
taste and crunchy texture” (toasted oats); “nutty-tasting
multi-grain bread”; “nutty, whole-grain oats”; “nutty corn
flavor” (corn bread); “nutty cornmeal”; “nutty, whole-grain
flavor” (brown rice); “a sweet, nutty grain” (quinoa).
In requests deemed admitted, applicant has admitted
that opposer is a competitor in the breakfast cereal
market, that “nutty” is an adjective describing a food
product containing nuts or having the flavor of nuts, that
others have used and are using “nutty” and “multigrain” to
Opp. Nos. 91096445, 91096699 and 91097357
8
describe qualities or characteristics of their food
products, and that applicant will use these words to
describe qualities or characteristics of its breakfast
cereals.
Applicant Record
Applicant’s chief financial officer, Neil Glick,
testified that applicant makes flour, flour blends,
particulate products, cereals and snack crackers. With
respect to applicant’s cereal products, applicant has been
selling NUTTY RICE cereal since August 1992. Beginning
around February 1995, applicant commenced selling NUTTY
CORN cereal and, since that date, applicant introduced its
NUTTY WHEAT & BARLEY cereal. These three cereals are
currently sold through brokers and independent sales
representatives throughout the United States, and are
promoted at trade shows. Applicant’s cereals are sold to
health food stores and to supermarket chains that have
health food sections.
Applicant’s president and chief executive officer,
Alfred Aragona, testified that the wording “nutty, chunky
texture” on its packaging was intended to convey the fact
“that we now had a nutty cereal like ‘Nutty Rice’ that had
a corn flavor.” Aragona dep., 51. He also testified that
“multigrain” is used by third parties on their cereal bars.
Opp. Nos. 91096445, 91096699 and 91097357
9
Mr. Aragona, when asked why applicant had selected the
mark NUTTY CORN, stated, at 51, that “[W]e wanted to convey
the fact that we now had a nutty cereal like “Nutty Rice”
that had a corn flavor.”
NUTTY OATS and NUTTY MULTIGRAIN cereal have never been
marketed. According to Mr. Aragona, applicant made many
test products for these two cereals but none was
satisfactory. Like its NUTTY RICE and NUTTY CORN cereals,
applicant wanted these cereals to have the texture of the
others, but was unable to perfect a satisfactory cereal.
Aragona dep., 23, 48, 53.
Applicant also took the testimony of Dr. Zachary S.
Wochok, the executive vice president of ACH Food and
Nutrition Division of the current applicant, ACH Food
Companies, Inc.4 While Dr. Wochok confirmed the testimony
of other witnesses that applicant had not yet introduced
NUTTY OATS and NUTTY MULTIGRAIN cereals, he stated that
“[O]ur intention is to develop a formulation” of these two
cereals. Wochok dep., 33.
Dr. Wochok testified that the word “nutty” is a flavor
descriptor similar to the word “sweet.” When asked about
the phrase “A nutritious breakfast cereal with a nutty,

4 According to Dr. Wochok, applicant was acquired by AC Humko
Corp., later renamed ACH Food Companies, Inc. This assignment
and subsequent change of name have been recorded in the Office.
Opp. Nos. 91096445, 91096699 and 91097357
10
crunchy texture” on applicant’s NUTTY WHEAT & BARLEY cereal
package, Dr. Wochok testified, at 57, that “it’s describing
the taste of wheat and barley cereal.” Dr. Wochok stated
that “nutty” is “a descriptor of the taste of the cereal,”
and that it “describe[s] the flavor.” Wochok dep., 58.
Similarly, concerning the use of the word “nutty” on
applicant’s NUTTY CORN cereal box, he testified, at 59, 60,
that “nutty” is “a descriptor of the cereal taste” and that
“It’s describing the taste of the toasted corn kernels.”
Dr. Wochok was asked to describe applicant’s Nutty Corn
cereal:
It’s a corn cereal, that has a
distinctive flavor to it. A somewhat
roasted flavor--roasted corn flavor.
Quite different than any other product
in the marketplace.
…It’s a crunchy, nutty-flavored cereal.
Wochok dep., 70-71. He further testified that applicant
had no objection to the use by others, including opposer,
of the specific terms here sought to be registered, so long
as they were not used as trademarks.
Applicant made of record a brochure which it
distributes to food brokers. This brochure states:
“Introducing…Nutty Cereals The Nuttiest Line of Cereals
You’ve Ever Tasted!” and “The toasting of rice brings out
Opp. Nos. 91096445, 91096699 and 91097357
11
the delicious nutty flavor” (Exhibit 5 to Glick
deposition).
Arguments of the parties
In its brief, opposer states that the issues include
whether applicant’s marks are merely descriptive, whether
those marks have acquired distinctiveness and whether
applicant has demonstrated a bona fide intention to use in
commerce the marks NUTTY OATS and NUTTY MULTIGRAIN. It is
opposer’s position that each of applicant’s marks is made
up of the descriptive adjective “NUTTY” followed by a noun
denoting the main ingredient of the breakfast cereal, which
ingredient term has been disclaimed. In this regard,
opposer points to the testimony of the witnesses who
testified that “NUTTY” was intended as a taste or a flavor
descriptor. Because opposer makes and advertises cereal
products and is a competitor of applicant, registration to
applicant, opposer maintains, would inhibit opposer’s
ability to use marketing language to describe the
properties of its cereal products. Opposer also points to
the numerous examples of descriptive usages by opposer as
well as third parties in connection with breakfast cereals
and food recipes, as well as third-party registrations of
marks containing the word “NUTTY” with a disclaimer, or
registered on the Supplemental Register. It is opposer’s
Opp. Nos. 91096445, 91096699 and 91097357
12
position that because of the high degree of descriptiveness
of the marks, applicant had the burden to show a greater
degree of acquired distinctiveness. Applicant has admitted
that there was no advertising of the NUTTY CORN cereal, and
opposer maintains that applicant was precluded by Board
order from introducing evidence regarding applicant’s date
of adoption of all of its marks and advertising and
promotional expenditures of the NUTTY CORN cereal.5 In
addition, opposer notes that the sales of this cereal have
been relatively small.
Concerning applicant’s bona fide intention to use two
of the marks sought to be registered (NUTTY OATS and NUTTY
MULTIGRAIN), opposer contends that the absence of
documentary evidence supports a finding of no bona fide
intention to use these marks in commerce. There is no
dispute that applicant has not produced a commercially

5 Actually, on pages 6-7 of the Board’s order of June 26, 1997,
the Board granted opposer’s motion for sanctions to the extent
that, “if applicant maintains that certain information or
documents requested in discovery do not exist or are unavailable,
we will bar applicant from producing such information or
documents as evidence in its own behalf at trial, provided that
opposer raises the matter by objecting to the evidence in
question on that ground, and preserves the objection in its brief
on the case.” We have read the discovery and trial depositions
and do not see that opposer objected to any testimony relating to
adoption and use of the mark NUTTY CORN. Indeed, opposer’s
counsel questioned applicant’s witness on the subject of first
use of the mark during subsequent discovery (see Glick discovery
dep., 45, taken on September 18, 1997) and on adoption and
significance of the mark (Aragona discovery dep., 51-53, taken on
November 4, 1997). Applicant has not advertised cereal bearing
this mark.
Opp. Nos. 91096445, 91096699 and 91097357
13
acceptable product under the marks NUTTY OATS and NUTTY
MULTIGRAIN.
Applicant does not dispute that the issues in this
case include whether its marks are inherently distinctive
without the need to show acquired distinctiveness
(suggestive) or merely descriptive. It is applicant’s
position, however, that even if each word is descriptive,
this does not mean that the combination is also
descriptive. Applicant maintains that its marks are
inherently distinctive and not merely descriptive, although
it concedes that third parties have used the word “NUT” and
“NUTTY” descriptively in connection with their breakfast
cereals. Applicant points to third-party registrations of
allegedly similar marks (GRAPE-NUTS, BEER NUTS and WHEAT
NUTS (“WHEAT” disclaimed, for nut-like snacks made with
wheat germ)) as justification for allowing its marks.
Applicant also contends that opposer cannot be damaged
because it did not object to applicant’s use of its other
marks containing the word “NUTTY”, such as NUTTY RICE and
NUTTY WHEAT & BARLEY, and contends that opposer is free to
use the very words comprising applicant’s marks in a
descriptive sense, but not as a trademark. Applicant asks
us to resolve doubt on the issue of mere descriptiveness in
its favor.
Opp. Nos. 91096445, 91096699 and 91097357
14
As to the issue of applicant’s bona fide intention to
use its marks, applicant acknowledges that, with respect to
two of its marks, it has not been able to come up with an
acceptable product formulation. Nevertheless, it maintains
that it has a continued intention to use these marks. It
points to its use of such marks as NUTTY CORN, NUTTY RICE
and NUTTY WHEAT & BARLEY as showing a family of marks with
the “NUTTY” formative, and the testimony of Dr. Wochok that
applicant desires to add to this family once a satisfactory
formulation is achieved.
Concerning applicant’s argument that opposer has
failed to object to the use of other marks of applicant
containing the term “NUTTY”, opposer correctly contends in
its reply brief that such conduct is irrelevant and, in any
event, such a laches defense cannot be raised for the first
time in applicant’s brief. We agree and shall give this
argument no further consideration. Also, opposer argues
that it is not understood how opposer could use the
entirety of applicant’s marks “in their descriptive sense”
while at the same time applicant claims that these marks
are inherently distinctive.
Evidentiary Rulings
With its brief, opposer has asked us to strike the
testimony of Dr. Wochok with respect to events which
Opp. Nos. 91096445, 91096699 and 91097357
15
occurred prior to his association with applicant in
February 1996. Opposer argues that the testimony relating
to any events that occurred before his association with
applicant should be stricken because of the witness’s lack
of personal knowledge. We have disregarded testimony of
this witness concerning any events which are not of his own
personal knowledge.
Applicant asks us to disregard the testimony of Mr.
Weinstein, arguing that this testimony relating to third-
party descriptive use of the words comprising applicant’s
marks is irrelevant and immaterial. However, we believe it
is relevant and have considered this testimony (and related
exhibits) for whatever probative value it has.
Discussion of the Merits
First, we note that standing is a threshold inquiry
directed solely to establishing a plaintiff's interest in
the proceeding.6 The purpose of requiring standing is to
prevent litigation where there is no real controversy

6 Section 13 of the Trademark Act, 15 U.S.C. § 1063, sets forth the
foundation for establishing standing in an opposition proceeding,
stating in relevant part:
Any person who believes that he would be damaged by the
registration of a mark upon the principal register ... may,
upon payment of the prescribed fee, file an opposition in the
Patent and Trademark Office.

Opp. Nos. 91096445, 91096699 and 91097357
16
between the parties, and where a plaintiff is no more than
an intermeddler. American Vitamin Products, Inc. v.
DowBrands, Inc., 22 USPQ2d 1313 (TTAB 1992). To establish
standing, it must be shown that a plaintiff has a "real
interest" in the outcome of a proceeding; that is,
plaintiff must have a direct and personal stake in the
outcome of the opposition. See Ritchie v. Simpson, 170
F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); and Jewelers
Vigilance Committee, Inc. v. Ullenberg Corp., 823 F.2d 490,
2 USPQ2d 2021, 2023 (Fed. Cir. 1987).
Here, opposer has clearly demonstrated that it is a
competitor of applicant in the manufacture and sale of
breakfast cereals, and that it has used and is in a
position to use terms similar to those here sought to be
registered by applicant.
We turn, therefore, to the central issue before us—-
whether applicant’s marks are merely descriptive or generic
of its goods. While opposer pleaded that applicant’s marks
are unregistrable because they are “common descriptive
terms, incapable of functioning as trademarks”--in effect,
generic terms--it is clear from the record and from the
briefs that the issue of mere descriptiveness was also
tried by the parties. Therefore, we shall determine
whether applicant’s marks are merely descriptive, and, if
Opp. Nos. 91096445, 91096699 and 91097357
17
so, whether applicant has demonstrated that its marks are
nevertheless registrable because they have acquired
distinctiveness. Of course, if we determine that
applicant’s marks are merely descriptive, because applicant
has not used two of its marks, there can be no occasion for
registration of those marks on the basis of acquired
distinctiveness.
A term is merely descriptive and therefore
unregistrable pursuant to the provisions of Section 2(e)(1)
of the Trademark Act, if it forthwith conveys an immediate
idea of an ingredient, quality, characteristic, feature,
function, purpose or use of the goods or services with
which it is used or is intended to be used. See In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In
re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215,
(CCPA 1978); and In re Quik-Print Copy Shops, Inc., 616
F.2d 523, 525, 205 USPQ 505, 507 (CCPA 1980). It is well
settled that a term need not immediately convey an idea of
each and every specific feature of the applicant’s goods in
order to be considered merely descriptive; it is enough
that the term describe one significant feature, attribute,
function, property, ingredient, quality, characteristic,
purpose or use of the goods or services. See In re
Opryland USA Inc., 1 USPQ2d 1409 (TTAB 1986). Also, the
Opp. Nos. 91096445, 91096699 and 91097357
18
question of whether a particular term is merely descriptive
must be determined, not in the abstract, but in relation to
the goods or services for which registration is sought, the
context in which the mark is used or is intended to be
used, and the possible significance that the mark is likely
to have for the average purchaser encountering the goods or
services in the marketplace. See In re Omaha National
Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); In re
Abcor Development Corp., supra; In re Consolidated Cigar
Co., 35 USPQ2d 1290 (TTAB 1995); In re Pennzoil Products
Co., 20 USPQ2d 1753 (TTAB 1991); and In re Bright-Crest,
Ltd., 204 USPQ 591 (TTAB 1979). That is, the question is
not whether someone presented with only the term or phrase
could guess what the goods or services are. Rather, the
question is whether someone who knows what the goods or
services are will understand the term or phrase to convey
information about them. See In re Home Builders
Association of Greenville, 18 USPQ2d 1313 (TTAB 1990).
Furthermore, while it is true that, in order for a
term to be held merely descriptive, it must describe an
attribute of the goods with some particularity, there is no
requirement that the term describe the goods exactly or in
all respects. See, In re Entenmann's Inc., 15 USPQ2d 1750,
1751 (TTAB 1990) [term "OATNUT" held merely descriptive of
Opp. Nos. 91096445, 91096699 and 91097357
19
bread containing oats and hazelnuts because it "readily
informs purchasers, with the required degree of
particularity, of two not inconsequential ingredients" of
the product, even though the kind of nut is not specified
by such term].
Upon careful consideration of this record and the
arguments of the parties, we conclude that applicant’s
marks are merely descriptive of the ingredients or
characteristics of applicant’s breakfast cereals. Some of
applicant’s own witnesses acknowledge that “nutty” was a
flavor or taste descriptor of applicant’s cereals. Other
evidence of record, including applicant’s own packaging,
further demonstrates the mere descriptiveness of this part
of applicant’s marks. Coupling this descriptive term with
the generic name for the principal ingredient of
applicant’s cereals (“NUTTY CORN,” “NUTTY OATS” and “NUTTY
MULTIGRAIN”) does not detract from the mere descriptiveness
of these words considered as a whole. For example, NUTTY
CORN merely describes the flavor or texture of the kernels
of applicant’s nutty-tasting corn breakfast cereal.
Therefore, as noted above, we need only consider
whether applicant has demonstrated that its NUTTY CORN mark
has acquired distinctiveness. In this regard, the level of
sales for this product is relatively small (in the amount
Opp. Nos. 91096445, 91096699 and 91097357
20
of thousands of dollars each month). Further, applicant
has not advertised this product. In view of the relatively
high degree of descriptiveness of the mark NUTTY CORN for a
nutty-tasting corn cereal, we conclude that applicant has
failed to demonstrate that the relevant purchasers have
come to recognize this mark as an indication of origin.
Further, because its other marks, such as NUTTY RICE, are
specifically different, applicant may not rely upon any
alleged acquired distinctiveness of those marks to support
registration of the NUTTY CORN mark.
Because of we have determined that applicant’s marks
are unregistrable on the Principal Register, we need not
consider opposer’s other ground of opposition--that
applicant lacks a bona fide intention to use its marks.
Suffice it to say that this claim is obviously misplaced
with respect to applicant’s NUTTY CORN cereal, which is now
in use.
Decision: The oppositions are sustained and
registration to applicant is refused in each application.