In a bit of snoozer, the Board affirmed a Section 2(d) refusal of COUNTRY OVEN for “Self-serve retail bakery shops; Retail bakery shops; bakery services, namely, online retail bakery shops” and “Bakery services, namely, the manufacture of bakery products to the order and/or specification of others” in view of the identical mark registered for “bread buns.” Applicant argued that “something more” than the fact that bakeries sell bakery products is required to prove the relatedness of the goods and services, but the Board ruled otherwise. In re Country Oven, Inc., Serial No. 87354443 (November 18, 2019) [precedential] (Opinion by Judge Angela Lykos).

Because the involved marks are identical, a lesser degree of similarity between the involved goods and services is necessary to support a finding of likely confusion. In re, llc, 116 USPQ2d 1406, 1411 (TTAB 2015) (citing In re Shell Oil Co., 26 USPQ2d 1687, 1689 (Fed. Cir. 1993)), aff’d, 123 USPQ2d 1744 (Fed. Cir. 2017). The Board observed that it is “common knowledge that retail bakery shops sell bakery products.” Moreover, Examining Attorney Matt Einstein submitted third-party use-based registrations for marks covering both applicant’s services and goods that encompass bakery products. Such third-party registrations “are relevant to show that the goods and services are of a type that may emanate from a single source under one mark.” In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).

Applicant argued that “bread buns” are a specific type of product like hamburger buns or hot dog buns, and thus are not covered by the third-party registrations for “bakery goods.” The Board observed, however, that “a registration that describes goods broadly is presumed to encompass all goods or services of the type described. See Stone Lion, 110 USPQ2d at 1161.” The Board found that the terms “bakery goods” and “bakery products” in the registrations encompass “bread buns.” Likewise, the term “buns” is broad enough to include all types of buns, including “bread buns.”

The Examining Attorney also provided several examples of use of the same mark for bakery shops and bakery products. In addition, applicant’s website uses the mark COUNTRY OVEN in connection with bakery products.

Applicant next contended that more evidence than that bakeries sell bakery products is needed to support a finding of likelihood of confusion, pointing to the “something more” requirement in In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059 (Fed. Cir. 2003) (restaurant services and beer) and In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082 (Fed. Cir. 2014) (stating that the “something more” requirement applies whenever “the relatedness of the goods and services is not evident, well-known or generally recognized.” 113 USPQ2d at 1087).

The Board, however, concluded that Coors and St. Helena support a finding that bakery services and bakery products are related because those decisions recognized that there can be a “clear relationship” between services and products even without additional evidence.

Here, because the relationship between baked goods, including bread buns, and bakeries is the opposite of obscure, unknown, or generally unrecognized, the relevant line of case law holds that confusion may be likely to occur from the use of the same or similar marks for goods, on the one hand, and for services involving those goods, on the other. Seee.g.Detroit Athletic, 128 USPQ2d at 1052 (“[W]e have held that confusion is likely where one party engages in retail services that sell goods of the type produced by the other party . . . .”).

The Board found the evidence of record sufficient to show that applicant’s services and the goods of the cited registration are “clearly related.” Moreover, the evidence demonstrated that bread buns are sold through retail bakery shops, and so this du Pont factor also favored a finding of likelihood of confusion.

Considering the relevant evidence and arguments, the Board found that the identical nature of the marks, the closely-related nature of the goods and services, and the overlapping channels of trade and classes of consumers required affirmance of the Section 2(d) refusal to register.

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TTABlog comment: I confess that I never heard of something called a “bread bun.” I would think if you crossed a bread with a bun, you would get a “brun.”

Text Copyright John L. Welch 2019.