MagicTime Int’l, LLC

Trademark Trial and Appeal Board

Jun 5, 2012

No. 77785797 (T.T.A.B. Jun. 5, 2012)

Mailed:
June 5, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re MagicTime Int’l, LLC
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Serial No. 77785797
_______

Arlen L. Olsen of Schmeiser, Olsen & Watts, LLP for
MagicTime Int’l, LLC.

George M. Lorenzo, Trademark Examining Attorney, Law Office
101 (Ronald R. Sussman, Managing Attorney).
_______

Before Zervas, Bergsman and Wolfson,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

MagicTime Int’l, LLC (“applicant”) filed a use-based
application to register the mark YUMMY TUMMY, in standard
character form, for “potato chips; potato crisps; potato
crisps and chips,” in Class 29.
The Trademark Examining Attorney refused to register
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. § 1052(d), on the ground that applicant’s
mark is likely to cause confusion with the registered mark
ORGANIC YUMMY TUMMY INSTANT OATMEAL, in standard character
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77785797
2
form, for “organic oatmeal,” in Class 30.1 Registrant
disclaimed the exclusive right to use the terms “organic”
and “instant oatmeal.”
Preliminary Issue
In its Reply Brief, applicant takes the examining
attorney to task for focusing on the similarity of the
marks and the similarity of the goods and not considering
all of the factors in the likelihood of confusion analysis.
However, the determination of likelihood of confusion under
Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the
factors bearing on the issue of likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also, In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In this regard, despite the fact
that there are 13 factors listed in the du Pont likelihood
of confusion analysis, the Board does not have to consider
every factor, only those that are relevant. Shen Mfg. Co.
v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350, 1353
(Fed. Cir. 2004).

1 Registration No. 2987496, issued August 23, 2005; Sections 8
and 15 affidavits accepted and acknowledged.
Serial No. 77785797
3
Moreover, in this case, the record is long on argument
without corroborating evidence. Applicant should note that
assertions in briefs are not recognized as evidence. In re
Simulations Publications, Inc., 521 F.2d 797, 187 USPQ 147,
148 (CCPA 1975); In re Vesoyuzny Ordena Trudovogo Krasnogo
Znameni, 219 USPQ 69, 70 (TTAB 1983). See also Spin
Physics, Inc. v. Matsushita Electric Co., 168 USPQ 605, 607
(TTAB 1970) (the arguments and opinion of counsel are
insufficient to overcome the facts).
Likelihood of Confusion
As indicated above, our determination of likelihood of
confusion under Section 2(d) is based on an analysis of all
of the probative facts in evidence that are relevant to the
factors bearing on the issue of likelihood of confusion.
In re Majestic Distilling Company, Inc., 65 USPQ2d at 1203;
In re E. I. du Pont de Nemours & Co., 177 USPQ at 567.
In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and
the similarities between the services. See Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated
by § 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences
in the marks.”).
Serial No. 77785797
4
A. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression and the strength of the mark in
the cited registration.

We turn first to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
De Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd.,
8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co.,
6 USPQ2d 1041, 1042 (TTAB 1987). In comparing the marks,
we are mindful that 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 overall commercial impression so
that confusion as to the source of the goods and services
offered under the respective marks is likely to result.
San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735,
1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir.
June 5, 1992). The proper focus is on the recollection of
the average customer, who retains a general rather than a
Serial No. 77785797
5
specific impression of the marks. Winnebago Industries,
Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB
1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106,
108 (TTAB 1975). In this case, the average consumer of
applicant’s potato chips and potato crisps and registrant’s
organic oatmeal are ordinary consumers.2
Applicant’s mark YUMMY TUMMY is similar to
registrant’s mark ORGANIC YUMMY TUMMY INSTANT OATMEAL to
the extent that both marks share the term “Yummy Tummy.”
In fact, registrant’s mark, ORGANIC YUMMY TUMMY INSTANT
OATMEAL, incorporates applicant’s entire mark. While the
mere fact that the marks share common elements does not
compel us to find that the marks are similar, it is a
factor in comparing the overall commercial impressions
engendered by the marks as perceived by consumers. See
Helga, Inc. v. Helga Howie, Inc., 182 USPQ 629 (TTAB 1974)
(junior party’s mark HELGA so resembles the senior party’s
mark HELGA HOWIE as to be likely to cause confusion).
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

2 See also Applicant’s Brief, p. 10.
Serial No. 77785797
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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). Thus, we find
the term “Yummy Tummy” is the dominant portion of
registrant’s mark because the words “organic” and “instant
oatmeal” are descriptive, if not generic, when it is used
in connection with organic oatmeal. Therefore, the term
“Yummy Tummy” is accorded more weight than the words
“organic” and “instant oatmeal” in our comparison of the
marks. In re National Data Corp., 224 USPQ at 751.
Applicant’s mark YUMMY TUMMY is substantially similar
to registrant’s mark ORGANIC YUMMY TUMMY INSTANT OATMEAL
because consumers will not place any source indicating
value on the terms “organic” or “instant oatmeal.”
Consumers will perceive ORGANIC YUMMY TUMMY INSTANT OATMEAL
as the oatmeal line of YUMMY TUMMY products.
We are not persuaded that the addition of the words
“organic” and “instant oatmeal” to registrant’s mark is
sufficient to differentiate applicant’s mark from the
registered mark in any meaningful way. As indicated above,
“organic” and “instant oatmeal” are descriptive, if not
generic, when used in connection with registrant’s organic
oatmeal thereby making the term “Yummy Tummy” that part of
the mark on which consumers will focus their attention.
Serial No. 77785797
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Applicant argues that registrant’s mark is entitled to
only a narrow scope of protection because the field is
crowded with YUMMY TUMMY marks. To support this argument,
applicant submitted copies of two third-party
registrations, listed below, and excerpts from the websites
of the third-party registrants:
1. Registration No. 3414996 for the mark TUM-E
YUMMIES for fruit flavored drinks; and
2. Registration No. 3772345 for the mark YUMMY IN MY
TUMMY and design for baby foods.3
First, the third-party marks are not YUMMY TUMMY
marks; they are similar but different. In this regard,
they are not as similar to applicant’s mark as is the mark
in the cited registration.
Second, applicant identified only two other entities
that have registered marks that are arguably similar to the
registered mark. Two third-party registrations for the
marks that are similar to the mark in the cited
registration do not prove that the term YUMMY TUMMY is so
weak and diluted that the differences between applicant’s
mark and the mark in the cited registration are
sufficiently different to avoid a likelihood of confusion

3 Applicant’s May 12, 2011 response.

Serial No. 77785797
8
when they are used in connection with related products.
Moreover, two third-party registrations owned by two
different entities does not, in our view, justify the
registration of what may be another confusingly similar
mark. AMF Inc. v. American Leisure Products, Inc., 474
F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); Plus Products v.
Star-Kist Foods, Inc., 220 USPQ 541, 544 (TTAB 1983).
However, even if we were to concede that ORGANIC YUMMY
TUMMY INSTANT OATMEAL is a weak mark, it is well
established that even the owner of a weak mark is entitled
to be protected from a likelihood of confusion with
another’s use of the same or confusingly similar mark.
Giant Foods, Inc. v. Ross and Mastracco, Inc., 218 USPQ
521, 526 (TTAB 1982).
Finally, the website evidence showing actual use of
the third-party marks does not persuade us that the term
YUMMY TUMMY is weak and diluted. “The purpose of a
defendant introducing third party uses is to show that
customers have become so conditioned by a plethora of such
similar marks that customers have been educated to
distinguish between different such marks on the bases of
minute distinctions.” Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1694 (Fed. Cir. 2005). On this record, we
Serial No. 77785797
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cannot conclude that there has been such an impact in the
marketplace as a result of the term “Yummy Tummy” being
widely used in marks on food products because it is not
accompanied by any other evidence indicating the length of
time said marks have been in use, the degree of exposure,
or the popularity of such marks vis-à-vis the relevant
purchasing public. See Top Tobacco LP v. North Atlantic
Operating Co., 101 USPQ2d 1163, 1171 (TTAB 2011).
In view of the foregoing, we find that applicant’s
mark YUMMY TUMMY is similar to registrant’s mark ORGANIC
YUMMY TUMMY INSTANT OATMEAL in terms of their appearance,
sound, meaning and commercial impression.
B. The similarity or dissimilarity and nature of the
goods described in the application and registration.

Applicant is seeking to register its mark for potato
crisps and potato chips and registrant’s mark is registered
for organic oatmeal. It is well settled that applicant’s
goods and the registrant’s goods do not have to be
identical or directly competitive to support a finding that
there is a likelihood of confusion. It is sufficient if
the respective products 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
Serial No. 77785797
10
marks used in connection therewith, give rise to the
mistaken belief that they emanate from or are associated
with a single source. In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785 (TTAB 1993); In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
The Examining Attorney has submitted numerous use-
based, third-party registrations for products listed in
both the application and registration at issue. Third-
party registrations which individually cover a number of
different services that are based on use in commerce may
have some probative value to the extent that they serve to
suggest that the listed services are of a type which may
emanate from the same source. In re Albert Trostel & Sons
Co., 29 USPQ2d at 1785-1786; In re Mucky Duck Mustard Co.
Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The
registrations listed below are representative.4
Mark Reg. No. Goods

FAREWAY 3593782 Oatmeal; potato chips

STOP & SHOP 3499039 Oatmeal; potato chips

SMART SPOT 3395735 Oatmeal; potato chips and potato
crisps

4 We have not included the entire description of goods for each
of the registrations. Only the goods in both applicant’s
application and registrant’s registration are listed.
Serial No. 77785797
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Mark Reg. No. Goods

SPARTAN 3095219 Oatmeal; potato chips

DOWN TO EARTH 2532511 Oatmeal; potato chips and potato
crisps

The examining attorney also submitted excerpts from
two websites showing the sale of oatmeal and snack foods,
albeit not potato chips and/or crisps, under the same
marks.
1. Kashi (kashi.com) sells oatmeal and snack bars
and snack and party crackers; and
2. Wholesome Goodness (wholesome-goodness.com) sells
bagel chips and oatmeal.
Applicant, on the other hand, contends that its potato
chips and potato crisps are snack foods while registrant’s
organic oatmeal is a breakfast meal. Accordingly,
applicant concludes that the goods are not complementary
and are of such different character that their differences
should weigh against finding that there is a likelihood of
confusion.5 However, applicant’s argument does not rebut
the evidence submitted by the Examining Attorney because it
does not prove that the companies identified in the third-
party registrations, and to a lesser extent the third-party

5 Applicant’s Brief, pp. 7-9.

Serial No. 77785797
12
websites, do not sell both oatmeal and potato chips and
crisps.
In view of the foregoing, we find that the goods at
issue are related.
C. The similarity or dissimilarity of likely-to-continue
trade channels and classes of consumers.

Because there are no limitations as to channels of
trade or classes of purchasers in the description of goods
in either the application or the registration, it is
presumed that applicant’s potato chips and potato crisps
and registrant’s organic oatmeal, move in all channels of
trade normal for those goods, and that they are available
to all classes of purchasers for the listed goods. See In
re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). There
is no evidence of record regarding where the products at
issue are sold or to whom they are sold. However, it is
common knowledge that ordinary consumers purchase and eat
potato chips and potato crisps, as well as oatmeal,
including [instant] organic oatmeal, and that both sets of
products may be purchased in the same stores. Accordingly,
we find that the products at issue move in the same
channels of trade and are sold to the same classes of
consumers.
Serial No. 77785797
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D. The conditions under which and buyers to whom sales
are made, i.e. “impulse” vs. careful, sophisticated
purchasing.

Applicant’s and registrant’s identifications of goods
do not contain any limitations pertaining to the conditions
of sale of the goods. Therefore, their respective
identifications of goods are broad enough to encompass
inexpensive snacks and organic oatmeal, including instant
oatmeal, which may be sold in grocery stores and
convenience stores to consumers who may not exercise a high
degree of care. Accordingly, we find that this factor is
neutral.
E. The nature and extent of any actual confusion and the
length of time and conditions under which there has
been concurrent use without evidence of actual
confusion.

We turn next to the du Pont factor dealing with the
length of time during and conditions under which there has
been contemporaneous use without evidence of actual
confusion. Applicant argues that coexistence over a period
of several years provides strong evidence that confusion is
not likely to occur in the future. As to whether there has
been sufficient opportunity for confusion to occur, the
record contains no indication of the level of sales or
advertising by applicant or registrant. The absence of any
instances of actual confusion is a meaningful factor only
Serial No. 77785797
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where the record indicates that, for a significant period
of time, an applicant’s sales and advertising activities
have been so appreciable and continuous that, if confusion
were likely to happen, any actual incidents thereof would
be expected to have occurred and would have come to the
attention of one or both of these trademark owners. In
this ex parte context, we also have no opportunity to hear
from registrant about its levels of sales and promotion, or
of any incidents of actual confusion brought to
registrant’s attention. Presumably limited sales by one or
both of these trademark owners over a relatively short
period of contemporaneous usage may well explain the lack
of evidence of actual confusion. All of these enumerated
factors materially reduce the probative value of
applicant’s argument regarding asserted lack of actual
confusion. Therefore, applicant’s claim that no instances
of actual confusion have been brought to applicant’s
attention is not indicative of an absence of a likelihood
of confusion. See Gillette Canada Inc. v. Ranir Corp.,
23 USPQ2d 1768, 1774 (TTAB 1992). In any event, we are
mindful of the fact that the test under Section 2(d) of the
Act is likelihood of confusion, not actual confusion.

Serial No. 77785797
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F. Fame of the registered mark.
Under the fifth du Pont factor (fame of the prior
mark), applicant is correct in noting that there is no
evidence that the cited registered mark is famous.
However, it is settled that the absence of such evidence is
not particularly significant in the context of an ex parte
proceeding. See In re Thomas, 79 USPQ2d 1021, 1027 n.11
(TTAB 2006). Moreover, “[i]t is not necessary that a
registered mark be famous to be entitled to protection
against a confusingly similar mark.” In re Big Pig Inc.,
81 USPQ2d 1436, 1439 (TTAB 2006). We find that the fifth
du Pont factor is neutral in this case.
G. Balancing the du Pont factors.
In view of the facts that the marks are similar, the
goods are related, the goods move in the same channels of
trade and are available to the same classes of consumers,
we find that applicant’s YUMMY TUMMY for “potato chips;
potato crisps; potato crisps and chips” is likely to cause
confusion with the mark ORGANIC YUMMY TUMMY INSTANT OATMEAL
for “organic oatmeal.”
Decision: The refusal to register is affirmed.