Sokol and Company

Trademark Trial and Appeal BoardMar 21, 2013

No. 85171394 (T.T.A.B. Mar. 21, 2013)

David C Gene V Hamilto Before H Opinion S the follo for “mix 1 Both us the mark WHOOP applicati Registra UNIT . Brezina o .J. Maciol n, Managi oltzman, by Kuczm okol and C wing two s es for bake ed-based a WHOOPIE IE DO! in s on. In conn tion Nos. 10 P ED STAT Trad I Seria f Ladas & , II, Trade ng Attorne Wolfson an a, Admini ompany ( tylized ma ry goods” pplications DO! in sty tylized form ection with 49138, 127 THIS OPI RECEDEN ES PATEN emark Tr n re Soko l Nos. 85 Parry LLP mark Exa y). d Kuczma strative Tr “applicant rks: in Interna were filed o lized form . The word Serial No. 8185 and 2 NION IS N T OF TH T AND T _____ ial and Ap _____ l and Co _____ 171394 an _____ for Sokol mining A _____ , Adminis ademark J ”), appeals and tional Clas n Novembe and Serial “whoopie” 85171408, 672137, all OT A E TTAB M RADEMAR peal Board mpany d 8517140 and Comp ttorney, L trative Tra udge: from the s 30.1 r 8, 2010. No. 851714 has been d applicant c for the SOL ailed: Ma K OFFIC 8 any. aw Office demark J final refus Serial No. 8 08 is for the isclaimed i laims owne O mark in rch 21, 20 E 103 (Mic udges. als to reg 5171394 is mark SOL n each rship of typed form 13 hael ister for O at. Serial Nos. 85171394 and 85171408 2 The examining attorney issued final refusals to register the marks pursuant to § 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), citing Registration No. 3278637 as a bar to registration.2 Registration No. 3278637 is for the mark WHOOP DE- DOO in standard character format for “bakery goods” in Class 30. After the examining attorney made the refusals final, applicant appealed and moved to consolidate the appeals.3 The Board granted applicant’s motion and consolidated the appeals for application Serial Nos. 85171394 and 85171408. Applicant and examining attorney have filed briefs. For the reasons set forth below, the refusals to register are affirmed. Likelihood of Confusion Applicant contends that in view of the differences between the marks, the goods covered in its application versus the cited registration, and the presence of its house mark, there is no likelihood of confusion. Our determination under § 2(d) is based on an analysis of all 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 Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 2 Registration No. 3278637, owned by Isamax Snacks, Inc., issued on August 14, 2007. 3 On page 1 of its Appeal Brief, applicant indicates that it filed a Request for Reconsideration that was denied. There is no Request for Reconsideration in the prosecution file for either application. Serial Nos. 85171394 and 85171408 3 USPQ 24, 29 (CCPA 1976). We carefully considered all of the evidence of record as it pertains to the relevant du Pont factors, as well as applicant’s arguments (including any evidence and arguments not specifically discussed in this opinion). To the extent that any other du Pont factors for which no evidence or argument were presented may nonetheless be applicable, we treat them as neutral. A. Similarity of the Goods and Channels of Trade We first consider the second and third du Pont factors, namely, the similarity of the goods and their channels of trade. It is well-settled that the issue of likelihood of confusion between applied-for and registered marks must be determined on the basis of the goods as they are identified in the involved application and registration. Paula Payne Products Co. v. Johnson Publishing Co., Inc., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973). Applicant’s goods are “mixes for bakery goods” and the goods identified in the cited registration are “bakery goods.” While admitting that both types of products are “food” products, applicant maintains they involve different markets because its box mixes must be baked and assembled before consumption, unlike the bakery goods in the cited registration which are ready-to-eat at the time of purchase.4 The relatedness of the products is amply demonstrated by the 46 use-based, third-party registrations, owned by dozens of different registrants, that recite both bakery goods and mixes for bakery goods, submitted by the examining attorney.5 4 Applicant’s Appeal Brief pp. 21-22. 5 Copies of these third-party registrations were attached to the February 17, 2011 Office Action and the September 15, 2011 Final Office Action. Serial Nos. 85171394 and 85171408 4 Although these registrations are not evidence that the marks shown therein are in use or that the public is familiar with them, they nonetheless have probative value to the extent they are based on use in commerce and serve to suggest that the goods identified therein are of a kind which may emanate from a single source under a single mark, i.e., that it is common for the same entity to provide bakery goods and baking mixes under the same mark. See In re Davey Products Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009); and In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). Thus, consumers encountering applicant’s mixes for bakery goods and the cited registrant’s bakery goods sold under similar marks are likely to believe the goods emanate from the same source. Additionally, the five third-party websites submitted by the examining attorney offering ready-to-eat baked goods such as cakes, cookies, bread, muffins, and brownies, as well as baking mixes including cake, cookie, and brownie mixes, provide further evidence of the relatedness of the goods.6 These websites show that bakery goods and mixes for bakery goods are the types of products offered for sale by the same entity. The fact that these entities concentrate their businesses on the sale of bakery products and bakery mixes, and are not mass retailers selling all types of products, establishes the probative value of this evidence. Additionally, two of the sites, pamelasproducts.com and billysbakerynyc.com, also show images of both types of products bearing the same respective trademarks, providing additional evidence that such products are in fact, sold under the same trademarks. 6 See attachments to September 15, 2011 Final Office Action. Serial Nos. 85171394 and 85171408 5 These third-party registrations and websites establish a close relationship between applicant’s baking mixes and the bakery products in the cited registration and provide strong evidence that such goods are of a kind that may emanate from a single source. Because there are no limitations as to trade channels or classes of purchasers in the description of goods in either of the applications or the cited registration, we must presume that the respective goods travel through all usual trade channels for such goods and to all classes of prospective purchasers for those goods. See In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992) and In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Applicant admits its baking mixes and the bakery goods identified in the cited registration are both categorized as “groceries.” However, it argues that the purchasers of the products differ because the purchasers of applicant’s goods must be aware they are purchasing mixes for items which require preparation and are not ready-to-eat, while purchasers of the bakery goods in the cited registration are purchasing ready-to-eat baked goods. Based on this difference, applicant concludes that applicant’s goods, and the registrant’s goods, are tailored to “particular subset[s] of consumers.”7 Even if each product is tailored to a “particular subset of consumers,” there is no evidence that the subsets are mutually exclusive, i.e., that purchasers of ready-to-eat bakery products do not also purchase mixes to make bakery products and vice versa. The evidence discussed above shows that applicant’s goods and the goods in the cited registration are 7 See Applicant’s Appeal Brief pp. 21-22. Serial Nos. 85171394 and 85171408 6 related and move in the same channels of trade, and are sold under conditions that would create a potential for confusion such as being offered for sale on the same websites. Additionally, applicant’s and registrant’s products are ordinary consumer products which are of the type that are purchased on impulse and without much care or deliberation. To the extent applicant’s and registrant’s respective bakery mixes and bakery products are not restricted to particular trade channels and are therefore offered to the general consuming public, the classes of purchasers overlap and this overlap also weighs in favor of a finding of likelihood of confusion under du Pont. In re Wilson, 57 USPQ2d 1863, 1866 (TTAB 2001). In view of the foregoing, we find that the goods are closely related, travel in the same channels of trade, and are sold to the same classes of purchasers, supporting a likelihood of confusion under the second and third du Pont factors. See In re Pan-O-Gold Baking Co., 20 USPQ2d 1761, 1765 (TTAB 1991) (muffin mix and freshly baked bread rolls are sufficiently related notwithstanding the fact that the former is available as a mix while the latter is already baked). B. Similarity of the Marks We next consider the first du Pont factor focusing on ‘‘the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression.” Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). 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 Serial Nos. 85171394 and 85171408 7 their overall commercial impression so that confusion as to the source of the goods offered under the respective marks is likely to result. San Fernando Elec. 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, No. 92-1086 (Fed. Cir. June 5, 1992). 1. Applicant’s WHOOPIE DO! Stylized Mark Because applicant’s WHOOPIE DO! mark and registrant’s WHOOP DE-DOO mark both contain three syllables, beginning with the first syllable “whoop,” followed by similarly sounding second syllables (i.e., “ee” versus “dee”), and ending in the word “do,” when comparing the marks in their entireties, they are similar in sound as well as appearance. With respect to the appearance of the marks, applicant argues its mark is “heavily” stylized, contains distinctive design elements, stylized lettering and ends with an exclamation mark.8 This distinction makes little difference. Where a mark comprises both a word and a design, the word is normally accorded greater weight because it would be used by purchasers to request the goods or services. In re Appetito Provisions Co. Inc., 3 USPQ2d 1553, 1554 (TTAB 1987); Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 1985). Given the overall similarities in the appearance and sound of the marks, the inclusion of a hyphen in the cited mark and the exclamation mark in applicant’s mark are insufficient to distinguish the marks. See In re Kent-Gamebore Corp., 59 USPQ2d 1373, 1374 (TTAB 2001) (IMPACT and HI-IMPACT marks look 8 Applicant’s Appeal Brief p. 5. Serial Nos. 85171394 and 85171408 8 and sound alike due to shared word IMPACT, despite the additional prefix HI being physically connected by a hyphen to the dominant term IMPACT). Moreover, the cited mark is for the term WHOOP DE-DOO in standard character format. A mark that is in standard characters may be displayed in any lettering style; the rights reside in the wording or other literal elements and not in any particular display. In re White Rock Distilleries Inc., 92 USPQ2d 1282, 1284 (TTAB 2009). Therefore, registrant is entitled to all depictions of its standard character mark regardless of the font style, size, or color, including the identical font style and size in which applicant’s applied-for marks are shown. In re Viterra Inc., 671 F.3d 1358, 1363, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) and In re Strategic Partners Inc., 102 USPQ2d 1397, 1399 (TTAB 2012). The stylized font utilized for the term WHOOPIE DO! in applicant’s marks does not alter the meaning or the commercial impression formed by the words “whoopie do” in applicant’s marks. Thus, the presentation of applicant’s mark in a stylized form that does not impact the commercial impression of its mark will not avoid a likelihood of confusion with the cited mark, in standard characters, because the owner of the cited registration has the right to present its mark in a similar manner of display. See, e.g., In re Melville Corp., 18 USPQ2d 1386, 1387-88 (TTAB 1991) and In re Pollio Dairy Prods. Corp., 8 USPQ2d 2012, 2015 (TTAB 1988). Turning to the meaning and commercial impression of the marks, the definition of the cited WHOOP DE-DOO mark is: Serial Nos. 85171394 and 85171408 9 Noun 1: noisy and exuberant or attention-getting activity (as at a social affair or in a political campaign) 2: a lively social affair 3: agitated public discussion or debate www.merriam-webster.com/dictionary/whoop-de-doo 9 Based on this definition, the WHOOP DE-DOO mark connotes something that is exuberant and lively. As to the meaning of applicant’s mark, we take judicial notice of the definition of “whoopee”: Interjection –used to express exuberance www.merriam-webster.com/dictionary/whoop-de-doo.10 Because “whoopie” would be understood as an alternate spelling of “whoopee,” the meaning of the word “whoopie” in applicant’s mark, like the term “whoop de-doo” in the cited mark, expresses an exuberant event. The “DO” portion of applicant’s mark does not alter this meaning. Thus, overall, the marks have similar meanings. Inasmuch as applicant’s WHOOPIE DO! mark may be considered to be a play on the phrase “whoop de-doo” embodied in the cited mark, the commercial impressions of the marks are the same. When used in connection with mixes for 9 See attachment to September 15, 2011 Office Action. 10 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). Serial Nos. 85171394 and 85171408 10 bakery goods, the “whoopie” in applicant’s WHOOPIE DO! mark might also connote a “whoopie pie,” a type of bakery good familiar to some consumers as recognized by applicant’s disclaimer of the word “whoopie.”11 The strong similarities in the sound, appearance and meanings of the marks however, are more than sufficient to overcome the possibility of a difference in connotation particularly where bakery goods include whoopie pies. Applicant contends that the weakness of the cited mark limits it to a narrow scope of protection that does not encompass applicant’s marks. Merely descriptive or highly suggestive terms have been generally categorized as “weak” marks, and the scope of protection extended to these marks has been limited to the substantially identical notation and/or to the subsequent use and registration thereof for substantially similar goods. In re Central Soya Co, Inc., 220 USPQ 914, 917 (TTAB 1984) citing In re Hunke & Jochheim, 185 USPQ 188, 189 (TTAB 1975). In support of the weakness of the cited mark, applicant first argues that “whoop” is descriptive of bakery goods, especially whoopie pies. Its argument is unsupported by any evidence and ignores the fact that the term “whoop” is not disclaimed in the cited registration. Applicant next argues the cited mark is weak, relying on thirteen third-party registrations comprising “whoop” marks for bakery 11 The record indicates that “whoopie pies” are a type of bakery product comprised of two layers of chocolate cake with mallow creme filling in-between. See specimen filed by applicant on November 8, 2010, the February 17, 2011 Office Action and the August 17, 2011 Response to Office Action. Serial Nos. 85171394 and 85171408 11 goods and sandwiches.12 Based on these registrations, applicant contends that many entities are using “whoop” as a trademark and consumers are therefore conditioned to recognize many users and can distinguish between the various uses of “whoop.” However, the following chart of these registrations shows that it is actually the word “whoopie” that is in common use for bakery goods: Trademark/SN/RN Brief Goods/Services AT LEAST 10 SMILES IN EACH WICKED WHOOPIE PIE Registration No.: 3284407 (Int’l Class: 30) Bakery goods BAKING WHOOPIE (Stylized) Registration No.: 3754201 (Int’l Class: 30) Cakes; cookies; pastries; pies BAKING WOOPIE Registration No.: 3041366 “BAKING” disclaimed (Int’l Class: 30) Baked chocolate cream filled desserts GRAB A WICKED WHOOPIE AND KEEP SMILING! Registration No.: 3278640 (Int’l Class: 30) Bakery goods MAINE WEE WHOOPIE PIE A PERFECT FINISH! Registration No.: 3824589 “WHOOPIE PIE” and “MAINE” disclaimed (Int’l Class: 31) Bakery goods THE ORIGINAL BROWNIE WHOOPIE PIE Registration No.: 3707226 “BROWNIE WHOOPIE PIE” disclaimed (Int’l Class: 30) Pastry dessert, namely, two brownie cakes sandwiched together with either a white vanilla cream filling or a peanut butter cream filling 12 See attachments to August 17, 2011 Response to Office Action. Serial Nos. 85171394 and 85171408 12 THE WHOO(PIE) WAGON "EVEN OUR NAME IS FRESH!" Registration No.: 3915976 “WHOOPIE” disclaimed (Int’l Class: 30) Bakery desserts; bakery goods; bakery products, namely, sweet bakery goods WHIMSICAL WHOOPIES Registration No.: 3678972 (Int’l Class: 30) Baked goods, namely, pies WHOOPERCHEESIE Registration No.: 2424265 (Int’l Class: 29) Cheeseburger sandwich sold only in a fast food restaurant and only in containers identifying the fast food restaurant WHOOPSKIDAWG Registration No.: 1658421 (Int’l Class: 30) Polish sausage sandwiches WICKED WHOOPIE Registration No.: 3278635 (Int’l Class: 30) Bakery goods WILD WHOOPIE BAKERY Registration No.: 3704886 “WHOOPIE BAKERY” disclaimed (Int’l Class: 30) Bakery products, namely, sweet bakery goods WILD WHOOPIE PIE Registration No.: 3695812 “WHOOPIE PIE” disclaimed (Int’l Class: 30) Bakery products, namely, sweet bakery goods It is well established that third-party registrations are of little probative value in determining likelihood of confusion because they are not evidence that the marks depicted therein are in use or that the public is aware of them. However, they may be submitted to demonstrate the meaning of a word which comprises a mark, or a portion thereof, in the same way dictionary definitions are used to illustrate how a term is perceived in the trade or industry. See The Institut National des Appellations D'Origine v. Vintners International Co. Inc., 958 F.2d Serial Nos. 85171394 and 85171408 13 1574, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992) (third party registrations show sense in which word is used in ordinary parlance and may show that a particular term has descriptive significance as applied to certain goods or services) and In re Box Solutions Corp., 79 USPQ2d 1953, 1955 (TTAB 2006). A closer look at these registrations reveals that the only pertinent registration is the cited registration. None of the remaining registrations are probative of the alleged weakness of the term “whoop” for bakery goods. Twelve of the registrations are for marks where “whoop” is not used as a stand-alone term, including ten registrations for marks that include the word “whoopie.”13 Two other registrations are for marks where “whoop” is merely incorporated as part of a longer word and the goods are sandwiches which have not been shown to be related to bakery products or baking mixes. Notably, the owner of the cited registration owns three of the registrations submitted by applicant.14 Thus, aside from the cited registration, the remaining registrations are for marks that include the merely descriptive term “whoopie” and not the arbitrary term “whoop,” or that recite goods that are unrelated to those at issue herein. In view of the foregoing, these registrations do not impact the meaning of applicant’s mark or the cited mark, nor do they support a finding that the cited mark is weak or otherwise entitled to a narrow scope of protection. 13 Five of the ten registrations include a disclaimer of the word “whoopie.” 14 The cited registrant, Isamax Snacks, Inc., is listed as the owner of Registration Nos. 3278640 and 3278635. Serial Nos. 85171394 and 85171408 14 Where the goods of the applicant and cited registrant are similar and/or closely related as they are in this case, the degree of similarity between the marks required to support a finding of likelihood of confusion is not as great as would be required with diverse goods. Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350, 1354 (Fed. Cir. 2004) also see In re J.M. Originals Inc., 6 USPQ2d 1393, 1394 (TTAB 1987). Here, the strong similarity of the marks in sound, sight, and meaning overcome any questionable difference in commercial impression. In a particular case, any one of the factors (appearance, sound or meaning) may be critical in finding the marks to be similar, and any difference in the commercial impressions of the marks at issue in this case is more than overcome by their similarity in sound and appearance. In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988) and In re Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987). Therefore, considering the relevant du Pont factors, we find that the Office has met its burden in showing a likelihood of confusion between applicant’s WHOOPIE DO! mark and the cited WHOOP DE-DOO mark. 2. Applicant’s SOLO WHOOPIE DO! Stylized Mark Applicant contends that due to the weakness of the cited mark, the inclusion of its registered SOLO house mark in its SOLO WHOOPIE DO! stylized mark is sufficient to distinguish its mark from the cited mark so as to avoid any likelihood of confusion.15 15 Specifically, applicant argues that SOLO is a strong house mark entitled to the broadest scope of protection because it is the subject of other registrations owned by applicant namely, Registration Nos. 1049138, 1278185, 1973444 and 2672137, none of which are for bakery goods or mixes for bakery goods. Applicant’s ownership of these registrations does Serial N W in deter Palms L similar Corp. v confusio where t Contrar name or Palms 8 W in appli impress term, th appeara likelihoo § 1207.0 In cited ma house m on Knig not obvia the mark os. 851713 hether a mining w LC, 85 US to MVP; M . Jones In n between he evidenc y to applic house ma 5 USPQ2d e must co cant’s mar ion. If the e addition nce, pronu d of conf 1(b)(iii). view of th rk is not ark alone ht Textile, te the need in the cite 94 and 85 mark inclu hether the PQ2d 136 VP not sh vestment NORTO e demonst ant’s argu rk to a reg at 1364 ci nsider the k, in light common of a hous nciation, usion. K e evidenc so highly d is sufficie in suppor for our con d registrati 171408 des or doe re is a lik 0, 1364 (T own to be Co., 75 U N McNAU rated that ment, it h istered ma ting Mene entire ma of the ev part of th e mark ca meaning a night Tex e and for t escriptive nt to avoi t of its pos sideration on. 15 s not inclu elihood of TAB 2007 highly su SPQ2d 13 GHTON “Essentia as long bee rk does no ndez v. Ho rk, includi idence of r e marks is n create si nd comm tile, 75 U he reasons or suggest d a likelih ition. The of the overa de a hous confusion ) (CLUB P ggestive t 13 (TTAB ESSENTI ls” was a n held tha t generall lt, 128 U.S ng the pre ecord to d a highly gnificant ercial imp SPQ2d at set forth ive that th ood of con record in ll similarit e mark is . Compar ALMS MV erm) with 2005) (n ALS and highly sug t the addi y avoid con . 514, 521 sence of t etermine suggestive differences ression so 1316-131 in section e addition fusion. A that case y of applica not conclu e In re F P confusi Knight Te o likelihoo ESSENTI gestive te tion of a t fusion. F (1888). he house m its comme or descrip in the ma as to avo 7; and TM B 1. above of applica pplicant r included m nt’s mark w sive iesta ngly xtile d of ALS rm). rade iesta ark rcial tive rks’ id a EP , the nt’s elies any ith Serial Nos. 85171394 and 85171408 16 examples of third-party registrations having the common term ESSENTIALS. Other than the cited registration, the record does not contain any examples of third- party registrations having the stand alone term WHOOP in connection with bakery goods or mixes for bakery goods. Applicant’s listed examples of third-party registrations that contain the word “whoopie” are not as probative on this issue as the 23 third-party registrations containing the exact term at issue in Knight Textiles. Even if the third-party registrations for “Whoopie” marks somehow evidence the weakness of the cited WHOOP DE-DOO mark, it is well-established that even weak marks are entitled to protection against the registration by a subsequent user of a similar mark for closely related goods. King Candy Company v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974). We look next to the marks in their entireties to assess their commercial impression and specifically to the manner in which applicant’s house mark is depicted in the drawing of the mark (reproduced above). Applicant’s house mark is displayed in noticeably smaller and different style font from the rest of the mark, with the term WHOOPIE DO! being prominently featured. In addition, the SOLO house mark is contained inside a rectangle that is offset to the left side, separate from the other wording in the mark. In fact, the manner in which the SOLO house mark is displayed reinforces its intended purpose as a house mark. As such, it does nothing to alter the meaning or impression created by applicant’s WHOOPIE DO! mark. Consumers familiar with the registered mark are likely to assume that applicant’s SOLO house mark simply identifies what had previously been an Serial Nos. 85171394 and 85171408 17 unidentified anonymous source. Thus, the addition of the SOLO house mark to applicant’s otherwise confusingly similar WHOOPIE DO! mark does not avoid a likelihood of confusion with the cited mark and likely suggests instead that applicant’s products are a variation of registrant’s products. See, e.g., In re Riddle, 225 USPQ 630, 632 (TTAB 1985) (finding RICHARD PETTY’S ACCU TUNE and design for automotive service centers specializing in engine tune-ups and oil changes likely to cause confusion with ACCUTUNE automotive testing equipment) and 4 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:43 (4th ed. Mar. 2013). In view of the foregoing, we find the commercial impression of applicant’s SOLO WHOOPIE DO! mark similar to that of the cited mark and this similarity outweighs any dissimilarities, particularly in light of the relatedness of the goods. C. Conclusion Because the goods are closely related, the channels of trade and classes of purchasers are the same, and the marks are similar, confusion is likely between applicant’s WHOOPIE DO! and SOLO WHOOPIE DO! stylized marks and the WHOOP DE-DOO word mark in the cited registration. Purchasers familiar with registrant’s bakery goods would, upon encountering applicant’s mixes for bakery goods under either of its marks, mistakenly assume that the latter product either originated with or is in some way connected with registrant. Decision: The refusals to register the marks in application Serial Nos. 85171394 and 85171408 under Section 2(d) of the Trademark Act are affirmed.