Dough-makers, LLC

Trademark Trial and Appeal Board

Apr 3, 2002

No. 75690891 (T.T.A.B. Apr. 3, 2002)

4/3/02
Paper No. 11
HRW

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Doughmakers, LLC.
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Serial No. 75/690,891
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Kristen Fjeldstad and John W. Kepler, III of Suelthaus &
Walsh, P.C. for Doughmakers, LLC.

Catherine K. Krebs, Trademark Examining Attorney, Law
Office 108 (David Shallant, Managing Attorney).
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Before Wendel, Bucher and Rogers, Administrative Trademark
Judges.

Opinion by Wendel, Administrative Trademark Judge:
Doughmakers, LLC. has filed an application to register
the mark DOUGHMAKERS for “pre-prepared dry food mixtures
used to make bakery goods.” 1
Registration has been finally refused under Section
2(d) of the Trademark Act on the ground of likelihood of
confusion with the mark DOUGHMAKER which is registered for

1 Serial No. 75/690,891, filed April 26, 1999, based on an
allegation of a bona fide intention to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/690,891
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“chemical for use in the baking industry to improve the
quality of bread.”2
The refusal has been appealed and applicant and the
Examining Attorney have filed briefs. Applicant has waived
its right to an oral hearing.
We make our determination of likelihood of confusion
on the basis of those of the du Pont3 factors that are
relevant in view of the evidence of record. Two key
considerations in any du Pont analysis are the similarity
or dissimilarity of the respective marks and the similarity
or dissimilarity of the goods with which the marks are
being used, or are intended to be used. See Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976); In re Azteca Restaurant Enterprises,
Inc., 50 USPQ2d 1209 (TTAB 1999).
Looking first to the respective marks, the Examining
Attorney argues that the marks DOUGHMAKERS and DOUGHMAKER
are essentially the same, the addition of the letter “S” on
applicant’s mark being insufficient to avoid confusion.
Applicant acknowledges that the marks are essentially the
same in sound and appearance, but argues that the

2 Registration No. 1,927,802, issued October 17, 1995, Section 8
& 15 affidavits accepted and acknowledged, respectively.
3 In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973).
Ser No. 75/690,891
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connotations and commercial impressions of the two marks,
as used on the goods of each, are entirely different.
We agree with the Examining Attorney that the marks
are essentially the same. The sole difference is the
plural form of applicant’s mark, which is almost totally
insignificant in terms of likelihood of confusion. See In
re Pix of America, Inc., 225 USPQ 691 (TTAB 1985). Not
only the appearance and the sound, but also the connotation
and overall commercial impressions of the marks are
essentially the same. We do not agree with applicant that
the particular products on which these two marks are used
result in different connotations for the marks. Both marks
are used on products used in the process of making baked
goods. We agree with the Examining Attorney that both
would “suggest that the associated product will provide the
‘something extra’ needed to make the dough achieve the
intended results.” (Brief, p. 2-3). The overall commercial
impressions of the marks are the same.
Before comparing the respective goods on which these
marks are used, we note that in general the greater the
degree of similarity in the marks, the lesser the degree of
similarity that is required of the products on which they
are being used, or are intended to be used, in order to
support a holding of likelihood of confusion. If the
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marks, as here, are essentially the same, it is only
necessary that there be a viable relationship between the
goods in order to find confusion likely. See In re
Concordia International Forwarding Corp., 222 USPQ 355
(TTAB 1983).
Turning to the goods at hand, we note that the issue
of likelihood of confusion must be determined on the basis
of the goods as identified in the application and in the
cited registration. Canadian Imperial Bank of Commerce v.
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir.
1987). If there are no restrictions in the application as
to channels of trade, it must be presumed that applicant’s
goods travel in all the normal channels of trade for goods
of this nature. See Kangol Ltd. v. KangaROOS U.S.A. Inc,
974 F.2d 161, 23 USPQ2d 1945 (Fed. Cir. 1992).
Applicant insists that by the very identification of
its goods as “pre-prepared dry food mixtures” for making
bakery goods, the definition is not so broad as would
“necessarily” extend to all channels of trade or all
classes of purchasers. In fact, according to applicant,
its mixes are intended to be sold at retail, to non-
industrial consumers for making domestic baked goods.
Applicant argues that registrant’s goods are obviously for
industrial use and thus marketed to large, industrial
Ser No. 75/690,891
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producers of bread, whereas its product will be targeted to
non-industrial consumers primarily for home use and likely
will be sold to such consumers at retail stores, fairs and
festivals
We agree with the Examining Attorney that applicant’s
identification of goods has no specific limitations as to
channels of trade. While the registration clearly limits
the use of registrant’s chemical which functions as a bread
dough improver to use in the baking industry or, in other
words, to the industrial manufacture of bread, and is not
inclusive of home baking, there is no restriction in the
identification of applicant’s goods to exclude registrant’s
target market. Although applicant may not presently intend
to market its pre-prepared mixtures to other than retail
customers for domestic use, applicant has not so limited
the goods as identified. As pointed out by the Examining
Attorney, applicant is free to market its goods wherever it
is normal for goods of this nature to be sold, including to
industrial buyers. As will be seen infra, the evidence of
record shows that industrial baking companies are in fact
potential buyers for pre-prepared mixes for the preparation
of bakery goods.
Next we consider the goods themselves, and whether
there is a viable relationship between the products such
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that purchasers would assume a common source therefor when
essentially the same mark is used thereon. In making this
analysis, we would point out that it is not necessary that
the goods of applicant and registrant be similar or even
competitive to support a holding of likelihood of
confusion. It is sufficient if the respective goods are
related in some manner and/or that the conditions
surrounding their marketing are such that they would be
encountered by the same persons under circumstances that
could, because of the similarity of the marks used thereon,
give rise to the mistaken belief that they emanate from, or
are associated with, the same source. See In re Albert
Trostel & Sons, 29 USPQ2d 1783 (TTAB 1993) and the cases
cited therein.
The Examining Attorney has made various materials of
record to show that both flour additives such as
registrant’s bread dough improver and pre-prepared mixes
for bakery goods such as applicant’s may emanate from the
same source. First, she has made of record information
from the Web site of the present assignee of the cited
registration, American Ingredients Company, which shows
that its line of products includes not only dough improvers
but also “functional bakery ingredients” and “bakery
concentrates.” Next, she has included information from the
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American Society of Baking Web site listing the suppliers
of “bases, mixes, and concentrates” and of “dough
conditioners.”4 American Ingredients Company appears on
both of these lists, as do twelve other companies.
Finally, she has introduced a third-party registration for
the mark CARAVAN in which the goods are identified in
general as “goods sold to bakers” and specifically include
both “mixes for making bakery goods” and “dough
conditioners.”5
We find this evidence sufficient to demonstrate that
both dough improvers and conditioners such as registrant’s
and pre-prepared mixes for making bakery goods such as
applicant’s might well emanate from the same source.
Furthermore, from the Web site information, as well as the
third-party registration, it is seen that both types of
products are those which are marketed to industrial or
other large scale purchasers for the making of bakery

4 We note that the Examining Attorney has made of record
additional evidence that the terms “dough conditioner” and “dough
improver” are used interchangeably.
5 While the Examining Attorney has referred to the registrations
of two other companies which offer both types of products, we can
give little weight to these registrations inasmuch as the
separate products are marketed under different marks. It is only
when the registration is for the same mark by a single entity for
both types of goods that we can rely upon the registration as
suggesting that these are goods which not only might be produced
by a single entity, but marketed under the same mark. See In re
Albert Trostel & Sons Co.,supra, In re Mucky Duck Mustard Co., 6
USPQ2d 1467 (TTAB 1988).
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goods. Thus, the respective goods, as identified, must be
presumed to include goods which might well be encountered
by the same purchasers who, because of the virtual identity
of the marks used thereon, might reasonably assume that
they emanate from the same source. While applicant may
argue that the average purchaser of its mixes would be an
individual who has purchased one of applicant’s bakeware
products, which are also sold under the DOUGHMAKERS mark,
there is nothing in applicant’s identification of goods, as
we have previously noted, which would so restrict the
potential purchasers of applicant’s mixes, either to non-
industrial consumers or prior purchasers of applicant’s
other products. As identified, applicant’s mixes must be
considered to include those intended for commercial or
industrial use, purchasers of which would have good reason
to assume that registrant is now offering such a product
under its DOUGHMAKER mark.
Accordingly, in view of the virtual identity of the
marks DOUGHMAKER and DOUGHMAKERS and the relationship which
has been shown to exist between the bread dough improver of
registrant and the pre-prepared dry food mixtures used to
make bakery goods of applicant, we find confusion likely.
To the extent that there may be any remaining doubt, we
follow the well-established principle that any doubt
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regarding likelihood of confusion must be resolved in favor
of the registrant. See In re Hyper Shoppes (Ohio) Inc.,
837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988).
Decision: The refusal to register under Section 2(d)
is affirmed.
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