Kluckers, Inc.

Trademark Trial and Appeal Board

Dec 22, 2005

No. 78322373 (T.T.A.B. Dec. 22, 2005)

Mailed:
22 December 2005
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Kluckers, Inc.
________

Serial No. 78322373
_______

Justin H. Purcell of Artz & Artz, P.C. for Kluckers, Inc.

James T. Griffin, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
_______

Before Walters, Holtzman, and Drost, Administrative
Trademark Judges.

Opinion by Drost, Administrative Trademark Judge:

On November 3, 2003, Kluckers, Inc. (applicant)
applied to register the mark KLUCKERS BROASTED CHICKEN
(standard character mark) on the Principal Register for
“restaurant services” in International Class 43. The
application (Serial No. 78322373) is based on an allegation
that applicant first used the mark and first used the mark
in commerce on September 1, 2003.
The examining attorney refused to register the mark
under Section 2(d) of the Trademark Act, 15 U.S.C.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser No. 78322373
2
§ 1052(d), because of three registrations for the following
marks:
I.
Registration No. 818,352
BROASTED CHICKEN
for "cooked poultry" in Class 29
Disclaimer: Chicken
Issued: 08 November 1966 (Renewed)

II.
Registration No. 818,763

for "prepared foods - namely, cooked poultry, shrimp and
fish" in Class 29
Disclaimer: Supreme
Issued: 15 November 1966 (Renewed)

III.
Reg. No. 1,848,657
BROASTER CHICKEN
for "cooked poultry" Class 29
Disclaimer: Chicken
Issued: 09 August 1994 (Renewed)

The first two registrations were issued to The
Broaster Co., which is identified as an Illinois
partnership. While the Office’s electronic records
indicate that Alco Foodservice Equipment Company is the
current owner, we note that the Office’s assignment records
show that there were subsequent assignments. An assignment
at Reel and Frame No. 0824/0367 on October 24, 1991,
Ser No. 78322373
3
records that Alco Standard Corp.1 assigned Registration Nos.
818,352 and 818,763 to Broaster Acquisition Corp., a
Delaware corporation. Another document recorded at Reel
and Frame No. 0856/0443 on April 8, 1992 and identified as
a “Change of Name” indicates that Broaster Acquisition
Corp. became The Broaster Company, a Delaware corporation.
Similarly, the third registration, No. 1,848,657, issued to
The Broaster Company, a Delaware corporation. It also
contains a claim of ownership, inter alia, of the two
earlier issued registrations (Nos. 818,352 and 818,763).
Therefore, it appears that all three registrations are
owned by the same entity, The Broaster Company, a Delaware
corporation.
Applicant argues that “the term ‘broasted’ is merely
descriptive of a method for cooking chicken.” Brief at 3.
Applicant argues that it “is well known in the food
industry that broasting is a cooking process developed by
the Broaster® Company of Beloit, Wis. in 1985.
Subsequently, broasting has become an alternative to deep-
frying or pan-frying.” Brief at 3. Applicant also
maintains that the “relation of food services to
restaurants is so limited that there is virtually no
overlap of purchasers and therefore no likelihood of

1 There were several earlier assignments.
Ser No. 78322373
4
confusion. Further, food services and restaurants do not
travel through the same channels of trade and
distribution.” Brief at 6. Applicant also points to the
differences between the cited marks and its mark.
The examining attorney’s position is that “applicant’s
restaurants serve chicken and registrant’s goods include
cooked poultry” and that applicant “has merely added its
corporate name KLUCKERS to the registered mark [BROASTED
CHICKEN].” Brief at unnumbered pages 2 and 4
(parenthetical omitted). The examining attorney also
points out that a search of numerous dictionaries did not
reveal any entries for the terms “broasted” or “broaster”
and that applicant cannot collaterally attack the cited
registrations.
After the examining attorney made the refusal final,
this appeal followed.
Before we address the merits of the case, we must
first address the examining attorney’s objection to several
references in applicant’s brief. In its brief, applicant
refers to information regarding common restaurant practices
and several Internet websites. We agree with the examining
attorney’s objections. “The record in the application
should be complete prior to the filing of an appeal. The
Trademark Trial and Appeal Board will ordinarily not
Ser No. 78322373
5
consider additional evidence filed with the Board by the
appellant or by the examiner after the appeal is filed.”
37 CFR § 2.142(d). Furthermore, a reference to a website
does not make the information on the site of record. In re
Planalytics Inc., 70 USPQ2d 1453, 1457 (TTAB 2004).
Therefore, we will not consider applicant’s unsupported
factual assertions and new evidence in its brief.
Turning next to the issue of likelihood of confusion,
we begin by noting that in these cases we consider the
facts of record in view of the relevant factors set out in
In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). See also In re E. I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA
1973); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d
1894, 1896 (Fed. Cir. 2000).
First, we consider the similarities and the
dissimilarities of applicant’s and registrant’s marks.
Applicant’s mark is KLUCKERS BROASTED CHICKEN. The cited
registrations are for the marks BROASTED CHICKEN, BROASTER
CHICKEN, and BROASTER SUPREME (stylized). The BROASTED
CHICKEN registration is identical to applicant’s mark
except for applicant’s addition of its corporate name,
KLUCKERS. Similarly, the BROASTER CHICKEN registration is
nearly identical to the “Broasted Chicken” portion of
Ser No. 78322373
6
applicant’s mark except for the hard-to-notice difference
between the final letter, i.e., “Broasted” and “Broaster.”
The third registration contains the identical word
“Broaster” with the disclaimed term “Supreme.” The
registered marks “Broaster Chicken” and “Broasted Chicken”
are either identical or virtually identical to the
“Broaster Chicken” portion of applicant’s mark. Therefore,
the question is whether the addition of applicant’s
corporate name creates a mark that is not similar to
registrant’s marks.
The Supreme Court has previously held that the
addition of a trade name or house mark to a registered mark
does not generally avoid confusion. Menendez v. Holt, 128
U.S. 514, 521 (1888):
Holt & Co., then, having acquired the exclusive right
to the words “La Favorita,” as applied to this
particular vendible commodity, it is no answer to
their action to say that there was no invasion of that
right because the name of S. O. Ryder accompanied the
brand upon flour sold by appellants, instead of the
name of Holt & Co. That is an aggravation, and not a
justification, for it is openly trading in the name of
another upon the reputation acquired by the device of
the true proprietor.

The CCPA has made it clear though that “there is no
arbitrary rule of law that if two product marks are
confusingly similar, likelihood of confusion is not removed
by use of a company or housemark in association with the
Ser No. 78322373
7
product mark. Rather, each case requires a consideration
of the effect of the entire mark including any term in
addition to that which closely resembles the opposing
mark.” New England Fish Co. v. Hervin Co., 511 F.2d 562,
184 USPQ 817, 819 (CCPA 1975). In that case, the Court
held that despite the fact that both marks were used on cat
food, the mark BLUE MOUNTAIN KITTY O’S (stylized) was not
confusingly similar to the registered mark KITTY. In
addition, when the common elements in the marks contain
recognizable differences, the addition of a house mark may
avoid confusion. See Rockwood Chocolate Co. v. Hoffman
Candy Co., 372 F.2d 552, 152 USPQ 599 (CCPA 1967) (ROCKWOOD
BAG-O-GOLD for candy not confusingly similar to CUP-O-GOLD
for candy).
Recently, the board was faced with a case in which
applicant was seeking to register the mark NORTON
MCNAUGHTON ESSENTIALS. In that case, the application was
opposed by the owner of the mark ESSENTIALS and the goods
were identical in part. Knight Textile Corp. v. Jones
Investment Co., 75 USPQ2d 1313 (TTAB 2005). The board
found that the term “ESSENTIALS is a highly suggestive term
as applied to clothing, and that applicant’s addition of
its house mark NORTON MCNAUGHTON renders the two marks
sufficiently distinguishable.” Id. at 1315.
Ser No. 78322373
8
Applicant specifically argues that the “term BROASTED
and BROASTER are merely descriptive of a method for cooking
chicken” and that they “immediately convey information
concerning both qualities and characteristics of the
product and service.” Brief at 3. We begin by pointing
out that in an ex parte proceeding, a cited registration is
presumed to be valid and an applicant is not permitted to
attack the registration. If an applicant maintains that a
registration should not be a bar to its registration for
reasons such as genericness or abandonment, the applicant
must file a petition to cancel the registration to present
these arguments. In re Dixie Restaurants, 105 F.3d 1405,
41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997):
Dixie's argument that DELTA is not actually used in
connection with restaurant services amounts to a
thinly-veiled collateral attack on the validity of the
registration. It is true that a prima facie
presumption of validity may be rebutted. See Dan
Robbins & Assocs., Inc. v. Questor Corp., 599 F.2d
1009, 1014, 202 USPQ 100, 105 (CCPA 1979). However,
the present ex parte proceeding is not the proper
forum for such a challenge. Id. ("One seeking
cancellation must rebut [the prima facie] presumption
by a preponderance of the evidence."); Cosmetically
Yours, Inc. v. Clairol Inc, 424 F.2d 1385, 1387, 165
USPQ 515, 517 (CCPA 1970); TMEP Section 1207.01(c)(v)
(1993); 3 J. Thomas McCarthy, McCarthy on Trademarks
and Unfair Competition Section 23.24[1][c] (3d ed.
1996). In fact, Cosmetically Yours held that "it is
not open to an applicant to prove abandonment of [a]
registered mark" in an ex parte registration
proceeding; thus, the "appellant's argument … that [a
registrant] no longer uses the registered mark … must
be disregarded." 424 F.2d at 1387, 165 USPQ at 517;
Ser No. 78322373
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cf. In re Calgon Corp., 435 F.2d 596, 598, 168 USPQ
278, 280 (CCPA 1971) (applicant's argument that its
use antedated a registered mark was effectively an
improper collateral attack on the validity of the
registration, which should have been made in formal
cancellation proceedings).

Therefore, we cannot entertain applicant’s argument
that the cited marks are merely descriptive.2 However, we
will consider applicant’s argument to the extent that we
assume that applicant is arguing as in the Knight Textile
case that its mark should be registered because the
overlapping portion of applicant’s and registrant’s mark is
highly suggestive. Nevertheless, even considered in this
manner, applicant’s argument must fail primarily because
the record does not support applicant’s position. The
examining attorney submitted evidence of a lack of entries
for the terms “broaster” or “broasted” in dictionaries.
While applicant asserts that “it has become common for
restaurants to purchase broasters and offer broasted
chicken on their menus,” (Brief at 4), there is simply no
evidence to support this point. Furthermore, even if there
was evidence of the type that applicant alleges, it is not
clear whether these uses would simply be licensees of
registrant’s BROASTER CHICKEN and BROASTER CHICKEN marks.

2 We add that the three cited registrations have been on the
Principal Register for more than 5 years and they would not be
subject to attack on the basis of mere descriptiveness. 15
U.S.C. § 1064.
Ser No. 78322373
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When we consider the marks as a whole, we hold that
the similarities of the marks outweigh their differences.
Applicant’s mark KLUCKERS BROASTED CHICKEN is similar to
registrant’s marks, particularly the BROASTED CHICKEN and
BROASTER CHICKEN marks.3 The common portions of the marks
are either identical or virtually identical in sound,
appearance, meaning, and commercial impression. The
addition of applicant’s corporate name under the facts of
this case does not create a dissimilar mark. See In re
C.F. Hathaway Co., 190 USPQ 343, 345 (TTAB 1976) (“[W]e are
firmly of the opinion that purchasers confronted by ‘GOLF
CLASSIC’ men's hats and ‘HATHAWAY GOLF CLASSIC’ for men's
knitted sport shirts are likely to assume that both
products emanate from or are in some way associated with
applicant, i.e., that this is one of those cases where the
addition of the house mark is an ‘aggravation rather than a
justification’"). See also In re Apparel Ventures, Inc.,
229 USPQ 225, 226 (TTAB 1986):
Those already familiar with registrant's use of its
mark [SPARKS] in connection with its goods, upon
encountering applicant's mark [SPARKS BY SASSAFRAS] on
applicant's goods, could easily assume that
"sassafras" is some sort of house mark that may be
used with only some of the "SPARKS" goods.

3 While applicant in its brief (p. 4) refers to “the particular
font used” with registrant’s mark, Registration Nos. 818,352 and
1,848,657 are identified as “typed drawings” and, therefore, the
registrations are not limited to any particular font or style.
Ser No. 78322373
11
Conversely, those familiar with only applicant's mark
would, upon encountering the registered mark on
related goods, assume that all "SPARKS" products come
from a single source, and that that source was in some
instances further identified with the words "by
sassafras."

We also note that in a somewhat similar case the U.S.
District Court for the Eastern District of Michigan held
that the marks “‘Al’s Kentucky Fried Chicken’ and ‘Al’s
Kentucky Style Fried Chicken’ are confusingly similar to
plaintiff’s name and mark KENTUCKY FRIED CHICKEN.”
Kentucky Fried Chicken Corp. v. Smith, 351 F.2d 1311, 175
USPQ 154, 155 (E.D. Mich. 1972). Therefore, we conclude
that applicant’s and registrant’s marks are similar.
Next, we consider the goods and services of applicant
and registrant. Applicant seeks registration for its mark
used in association with restaurant services. The cited
registrations’ goods all include “cooked poultry.”
Applicant refers to registrant’s goods as “cooked poultry
food service” and maintains that customers of food services
“are typically purchasing food in large quantities and for
special events and are therefore likely to ensure they are
acquiring a desired and specific product.” Brief at 6. We
cannot read the goods as being so limited. Paula Payne
Products v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ
76, 77 (CCPA 1973) (“Trademark cases involving the issue of
Ser No. 78322373
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likelihood of confusion must be decided on the basis of the
respective descriptions of goods”). “Cooked poultry” can
include cooked chicken that is available for carry out at
restaurants, grocery stores, and similar establishments.
“In order to find that there is a likelihood of
confusion, it is not necessary that the goods or services
on or in connection with which the marks are used be
identical or even competitive. It is enough if there is a
relationship between them such that persons encountering
them under their respective marks are likely to assume that
they originate at the same source or that there is some
association between their sources.” McDonald's Corp. v.
McKinley, 13 USPQ2d 1895, 1898 (TTAB 1989). See also In re
Opus One Inc., 60 USPQ2d 1812, 1814-15 (TTAB 2001).
Because the services here involve restaurant services
and the cited registrations involve food items, we must
also consider that there is no per se rule that confusion
is likely simply because “similar or even identical marks
are used for food products and for restaurant services.”
Jacobs v. International Multifoods Corporation, 668 F.2d
1234, 212 USPQ 641, 642 (CCPA 1982). See also In re Coors
Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1064 (Fed. Cir.
2003) (“But the registered mark in this case is simply for
restaurant services in general, and the Board’s conclusion
Ser No. 78322373
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that restaurant services and beer are related is based on
the fact that a tiny percentage of all restaurants also
serve as a source of beer, which is a very weak evidentiary
basis for a finding of relatedness”).
However, the Coors Brewing court explained that the
case would have been different “if the registrant’s mark
had been for a brewpub or for restaurant services and beer.
In that case, the goods and services associated with the
two marks would clearly be related.” Id. In this case,
applicant’s mark is for KLUCKERS BROASTED CHICKEN and
applicant has disclaimed the word “Chicken.” The menu from
applicant’s restaurants includes the following items
(prices omitted):
BROASTED CHICKEN…
2 pc Chicken Snack
4 pc Chicken Dinner
3 pc Wing Snack
5 pc Wing Dinner
3 pc Chicken Tenders
5 pc Chicken Tenders

Chicken Only Buckets Ala Carte…

Individual Pieces
Breast white meat
Wing white meat
Thigh dark meat
Leg dark meat

Family Bucket Meals
Small Bucket
8 pieces of Broasted Chicken
Choice of Potatoes
1 pint of Cole Slaw
Ser No. 78322373
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3 Biscuits

The menu also contains a section for “Kluckers Party
Orders” that list prices for orders of between 30 to 200
pieces of chicken and indicates that applicant’s services
include: “Carry out and catering for all occasions.”
Clearly, this evidence shows that applicant’s restaurants
are selling “cooked poultry,” i.e., cooked chicken, and
that there is a relationship between applicant’s
restaurants selling cooked chicken for carry out and
catering and registrant’s cooked poultry. See In re Azteca
Restaurant Enterprises Inc., 50 USPQ2d 1209, 1211 (TTAB
1999) (“The average consumer, therefore, would be likely to
view Mexican food items and Mexican restaurants services as
emanating from or sponsored by the same source if such
goods and services are sold under the same or substantially
similar marks”). See also Opus One, 60 USPQ2d at 1815
(“The fact that applicant’s restaurant serves the type of
goods (indeed the actual goods) identified in the cited
registration is certainly probative evidence which supports
a finding under the second du Pont factor that applicant’s
services and opposer’s goods are related”). Therefore, we
find that applicant’s services and registrant’s goods are
related. Furthermore, the prospective purchasers of
restaurant services and cooked poultry would at least in
Ser No. 78322373
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part overlap inasmuch as the same purchasers are likely to
patronize restaurants selling chicken and purchase cooked
poultry.
Because we have found the marks are similar and that
consumers are likely to believe that there is an
association between restaurant services and cooked poultry,
we conclude that there is a likelihood of confusion.
Decision: The refusal to register applicant’s mark
under Section 2(d) is affirmed.