Summit Entertainment, LLC

Trademark Trial and Appeal Board

Aug 24, 2011

No. 77809429 (T.T.A.B. Aug. 24, 2011)

Mailed:
August 24, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Summit Entertainment, LLC
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Serial No. 77809429
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Jill M. Pietrini and Ryan Hilbert of Manatt, Phelps &
Phillips, LLP for Summit Entertainment, LLC.

Lydia M. Belzer, Trademark Examining Attorney, Law Office
108 (Andrew Lawrence, Managing Attorney).
_______

Before Seeherman, Mermelstein and Lykos, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Summit Entertainment, LLC has appealed from the final
refusal of the trademark examining attorney to register
TWILIGHT in standard character form for “candy; chewing
gum.”1 Registration has been refused pursuant to Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the

1 Application Serial No. 77809429, filed August 20, 2009,
asserting first use and first use in commerce on March 21, 2009.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 77809429
2
ground that applicant’s mark, used for its identified
goods, so resembles the mark TWILIGHT DELIGHT, in standard
character form, registered for “chocolate bars,”2 that it is
likely to cause confusion or mistake or to deceive.
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 Co., 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). See also, In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
Turning first to the goods, applicant’s identified
goods are candy and chewing gum; the goods identified in
the cited registration are chocolate bars. Chocolate bars
are a type of candy, and thus are encompassed within
applicant’s identified goods. Therefore, applicant’s goods
are, in part, identical to the registrant’s identified

2 Registration No. 3197660, issued January 9, 2007.
Ser No. 77809429
3
goods.3 Applicant has argued that its goods are different,
stating that its candy is candy hearts as shown in the
specimen submitted with its application, while the
registrant’s goods are dark chocolate bars. Applicant also
asserts that the purposes for which consumers buy the goods
are different, stating that its mark refers to the motion
pictures Twilight and The Twilight Saga: New Moon that
applicant produced and distributed, and the candy for which
it uses the mark is licensed merchandise that relates to
the motion picture. As a result, applicant claims that
consumers purchase applicant’s goods because “they (or the
people for whom they are buying the products) are fans of
the Twilight Motion Pictures and are looking for something
non-chocolaty in nature,” while the registrant’s chocolate
bars are bought “to satisfy a chocolate craving of a
specific nature or as a gift to someone who loves
chocolate.” Brief, p. 7.
We are not persuaded by applicant’s argument. It is
well settled that the issue of likelihood of confusion must
be determined based on an analysis of the mark as applied

3 In its reply brief applicant appears to assert that a “candy
bar” is different from a “chocolate bar.” We acknowledge that
not all candy bars are made of chocolate. However, “chocolate
bars” are a type of candy, applicant has identified its goods as
“candy,” and therefore applicant’s identified goods encompass the
goods identified in the cited registration.

Ser No. 77809429
4
to the goods recited in an applicant’s application vis-à-
vis the goods and/or services recited in the cited
registration, rather than what the evidence shows the goods
and/or services to be. In re 1st USA Realty Professionals
Inc., 84 USPQ2d 1581, 1585 (TTAB 2007). See also Canadian
Imperial Bank of Commerce v. Wells Fargo Bank, N.A., 811
F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987). Thus, whether
or not applicant currently limits its “candy” to candy
hearts, or even goods with a Twilight move theme, its
application is for “candy” per se, and we must construe the
identification to include all types of candy, including
chocolate bars. Accordingly, applicant’s candy and the
registrant’s identified chocolate bars are, in part,
legally identical, and the channels of trade and the
consumers for these legally identical goods must be
considered identical as well. The du Pont factors of the
similarity of the goods and the channels of trade favor a
finding of likelihood of confusion.
The examining attorney has also submitted evidence as
to the similarity of the chewing gum identified in
applicant’s application and chocolate bars, through
numerous single-class third-party registrations showing
that many entities have adopted a single mark for both
goods, and excerpts from third-party websites showing that
Ser No. 77809429
5
companies manufacture both chewing gum and chocolate bars.
We need not discuss such evidence, however, in view of the
fact that applicant’s candy is, in part, legally identical
to the registrant’s goods. Likelihood of confusion must be
found if there is likely to be confusion with respect to
any item that comes within the identification of goods in
the application. See Tuxedo Monopoly, Inc. v. General
Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981).
This brings us to the du Pont factor of the similarity
of the marks. In considering this factor, we keep in mind
that when marks would appear on virtually identical goods
or services, as they do here, the degree of similarity
necessary to support a conclusion of likely confusion
declines. See Century 21 Real Estate Corp. v. Century Life
of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992).
Applicant’s mark is TWILIGHT; the cited mark is
TWILIGHT DELIGHT. We take judicial notice of the
dictionary definition of “delight,” submitted with the
examining attorney’s brief, as meaning “something that
gives great pleasure”; the reference lists as synonyms,
Ser No. 77809429
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inter alia, “delectation, feast, treat.”4 In fact, a type
of candy is actually called “Turkish delight.”5 The word
DELIGHT in the registrant’s mark, therefore, has a
suggestive meaning as applied to chocolate bars.
It is a well-established principle that, in
articulating reasons for reaching a conclusion on the issue
of likelihood of confusion, there is nothing improper in
stating that, for rational reasons, more or less weight has
been given to a particular feature of a mark, provided the
ultimate conclusion rests on a consideration of the marks
in their entireties. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985). In this case,
the first word of the cited mark, TWILIGHT, is the dominant
feature. As discussed further below, it is an arbitrary
term for chocolate bars, while DELIGHT has a suggestive
meaning. Further, as the first word in the mark, and
paired with the suggestive term DELIGHT, the arbitrary term
TWILIGHT contributes more to the commercial impression of
the mark than DELIGHT. See Palm Bay Imports Inc. v. Veuve

4 Merriam-Webster Online Dictionary, http://www.meriiam-
webster.com, definition taken from Merriam-Webster College
Dictionary (11th ed. 2008). The Board may take judicial notice of
dictionary definitions. University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d,
703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
5 The American Heritage Dictionary of the English Language
(1970).

Ser No. 77809429
7
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73, USPQ2d 1689 (Fed. Cir. 2005) (in mark VEUVE ROYALE,
arbitrary term VEUVE contributes more to commercial
impression of product than ROYALE).
The dominant part of the cited mark, TWILIGHT, is
identical to applicant’s mark, TWILIGHT. Although the
registered mark has the second word DELIGHT, because of the
suggestiveness of this word it does not serve to
distinguish the marks, and the presence of this word in the
registered mark does not effectively change the appearance,
pronunciation, connotation or commercial impression of the
marks. We find that, when compared in their entireties,
the marks are similar, and that this du Pont factor favors
a finding of likelihood of confusion.
Applicant has argued that the marks have different
commercial impressions because in registrant’s mark
TWILIGHT refers to the dark appearance of chocolate and
DELIGHT “connotes chocolate’s well-established reputation
of providing great joy and pleasure,” brief, p. 5, while
applicant’s mark refers to the Twilight motion pictures.
We are not persuaded by this argument. The dictionary
definitions of “twilight”6 made of record by applicant are:

6 Dictionary.com Unabridged, based on the Random House
Dictionary (2010).
Ser No. 77809429
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1. the soft, diffused light from the sky when the sun
is below the horizon, either from daybreak to
sunrise or, more commonly, from sunset to nightfall.
2. the period in the morning or, more commonly, in the
evening during which this light prevails.
3. a terminal period, esp. after full development,
success, etc.: the twilight of his life.
4. a state of uncertainly, vagueness, or gloom.

Nothing in these dictionary definitions indicates that
“twilight” applies to the color of chocolate, nor is there
any evidence that consumers would view the term “twilight”
in any way as indicating the color of chocolate. Nor can
we assume that everyone that sees applicant’s mark will
understand it to reference applicant’s motion pictures.
There may be people who are not familiar with the motion
pictures, but who are familiar with the registrant’s
TWILIGHT DELIGHT chocolate bars, who, upon seeing the mark
TWILIGHT on candy, particular chocolate bars, will assume
that the TWILIGHT candy emanates from the registrant. This
can occur if the consumer does not realize that applicant’s
goods do not have the word DELIGHT on them due to the lack
of care with which candy is purchased, see discussion
infra. Even if the consumer does notice the difference, he
or she is likely to assume that TWILIGHT is merely a
variation or shortened form of the mark TWILIGHT DELIGHT.
We also agree with the examining attorney that, if
consumers are familiar with applicant’s Twilight motion
Ser No. 77809429
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pictures, there is a likelihood of reverse confusion.7 That
is, if consumers associate applicant’s TWILIGHT candy with
applicant’s Twilight motion pictures, consumers are likely
to believe that TWILIGHT DELIGHT chocolate bars are also
associated with applicant’s motion pictures, and that both
TWILIGHT candy and TWILIGHT DELIGHT chocolate bars emanate
from or are sponsored by a single source.
Increasing the likelihood of confusion is the fourth
du Pont factor, “the conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful,
sophisticated purchasing.” The goods are inexpensive
general consumer products, purchased by the public at
large, including children. Candy has long been considered
to be an impulse purchase. See, for example, In re
Shoemaker’s Candies, Inc., 222 USPQ 326, 328 (TTAB 1984)
(candy is a low cost impulse type item which would not
ordinarily be purchased with a great degree of care); Paul

7 In its reply brief applicant objects to the examining
attorney’s raising the possibility of reverse confusion for the
first time in her brief, contending that “it is improper to raise
for the first time on appeal an issue that was not previously
raised below.” Reply brief, n. 2. However, likelihood of
confusion has been the issue throughout the examination of the
application and the briefing of this appeal. The examining
attorney is not limited as to the arguments she can make in
maintaining this ground of refusal, and the Board may, in any
case, rely on a different rationale. See TBMP § 1217: “[T]he
examining attorney is not precluded from raising, during appeal,
new arguments … in support of a ground for refusal.”

Ser No. 77809429
10
F. Beich Company v. J & J Oven Company, Inc., 147 USPQ 162,
164 (TTAB 1965) (candy falls within the category of snack
items which generally are purchased on impulse with little
or no discrimination). A consumer, familiar with the
registrant’s TWILIGHT DELIGHT chocolate bar, and seeing
TWILIGHT on a chocolate bar (again, applicant’s identified
“candy” would include chocolate bars) is likely to simply
grab the TWILIGHT chocolate bar thinking it is the bar with
which he or she is familiar.
Finally, we consider the factors of strength of the
registered mark, and the number and nature of similar marks
in use on similar goods. Applicant has asserted that there
are “many third party uses of the term TWILIGHT for goods
related to candy, chewing gum, and chocolate.” Brief, p.
8. However, applicant has not submitted any evidence
whatsoever of third-party use. In support of its argument
about use of TWILIGHT marks, and the weakness of the
registrant’s mark, applicant has made of record only two
cancelled registrations, and an abandoned application.
These documents are not evidence that the marks shown
therein are in use. See Olde Tyme Foods Inc. v. Roundy’s
Inc., 961 F.2d 200 , 22 USPQ2d 1542, 1547 (Fed. Cir. 1992)
(the existence of third-party registrations is not evidence
of what happens in the market place or that customers are
Ser No. 77809429
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familiar with them). Moreover, cancelled registrations do
not provide constructive notice of anything, Action Temp.
Svcs. Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d
1307, 1309 (Fed. Cir. 1989), while an application is
evidence only of the fact that it was filed. Interpayment
Services Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6
(TTAB 2003). We also note that the application submitted
by applicant was not even based on use.
Third-party registrations can be used to show that a
mark has been adopted because it has a certain significance
in a particular industry. However, the fact that at two
different points in time there was a third-party
registration for, in one case, cookies, and in another
case, candy, does not show that TWILIGHT has a significance
for candy. Accordingly, applicant’s contention that the
cited mark is weak has no support in the record. On the
contrary, based on the record before us, we find that the
registrant’s mark TWILIGHT DELIGHT is arbitrary for
chocolate bars, and that the registration is entitled to
the broader scope of protection of an arbitrary mark.
In view of the foregoing--the in part legally
identical goods, the legally identical channels of trade,
the similarity of the marks, the strength of the registered
mark, and the impulse nature of the purchasing decision--we
Ser No. 77809429
12
find that applicant’s mark TWILIGHT for candy and chewing
gum is likely to cause confusion with the registered mark
TWILIGHT DELIGHT for chocolate bars.
Decision: The refusal of registration is affirmed.