The USPTO refused registration of KRANKY KOOKYS for “individually baked cookies decorated with icing showing an image of a frowning face and sold individually” [COOKIES disclaimed], finding the mark likely to cause confusion with the registered mark KRANKY for “chocolate covered corn flakes.” Applicant Dwayne Roscoe argued that the unusual spelling of KOOKYS and the alliteration in his mark, coupled with the care with which consumers purchase desserts, require reversal of the refusal. How do you think this came out? In re Dwayne A. Roscoe, Serial No. 87047156 (April 13, 2018) [not precedential] (Opinion by Judge Susan J. Hightower).

The Marks: The Board found KRANKY to be the dominant element of applicant’s mark. KOOKYS is an alternative spelling for the disclaimed word “cookies.” [It is? – ed.]. Applicant conceded that KOOKYS is descriptive of the goods but contended that it is a “highly colored term which draws attention of a particular group of consumers, and the intentional mis-spelling [sic] further draws attention to ‘KOOKYS.'”

The Board agreed that consumers will give some weight to KOOKYS because of its alternative spelling and its alliteration with KRANKY. However, the Board found the overall impression of KRANKY KOOKYS to be very similar to the cited mark KRANKY. Therefore, the first du Pont points in favor of a finding of likely confusion.

The Goods: Examining Attorney Stefan M. Oehrlein submitted evidence demonstrating that cereal and packaged cookies may emanate from the same source under the same mark: e.g., ANNIE’S, Girl Scouts THIN MINTS, and KASHI. The Board concluded that the second du Pont favors a likelihood of confusion finding.

Consumer Sophistication: The Board found that cookies sold individually “are highly likely to be purchased on impulse.” Applicant’s specimen of use showed his goods displayed at a checkout counter, near candy and lottery tickets. Likewise, inexpensive sweetened cereal is likely to be purchase on impulse. There was no evidence that purchasers of these goods exercise particular care. [Personally, I always carefully check each cookie to make sure there are no raisins – ed.].

Applicant’s Prior Registration: Applicant pointed to his prior registration for KRANKY KOOKYS for bakery goods, now cancelled due to an oversight. That registration, he argued, issued in 2009 and co-existed with the cited registration without confusion.

The Board was not moved, implying “that’s the way the cookie crumbles.” It pointed out that each case must be decided on its own facts and record. The Board made no mention was of the 13th du Pont factor, or of In re Strategic Partners, Inc., 102 USPQ2d 1397 (TTAB 2012). There, the Board reversed a Section 2(d) refusal of ANYWEAR for clothing in light of the applicant’s prior registration of ANYWEARS for footwear, the now-expired registration having co-existed with the cited registration for ANYWEAR BY JOSIE NATORI & Design for more than five years. [TTABlogged here].

Conclusion: And so the Board affirmed the refusal.