King Candy Company v. Eunice King's Kitchen, Inc.

• Decision Date: 06 June 1974
• Docket Number: Patent Appeal No. 9245.
• Citation: 496 F.2d 1400,182 USPQ 108
• Parties: KING CANDY COMPANY, Appellant, v. EUNICE KING'S KITCHEN, INC., Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

182 USPQ 108, 496 F.2d 1400 (1974)

KING CANDY COMPANY, Appellant, v. EUNICE KING'S KITCHEN, INC., Appellee.

Patent Appeal No. 9245.

United States Court of Customs and Patent Appeals.

June 6, 1974.

J. Timothy Hobbs, Washington, D. C. (Mason, Fenwick & Lawrence, Washington, D. C.), attorney of record, for appellant.

William B. Mason, Arlington, Va. (Mason, Mason & Albright, Arlington, Va.), attorney of record, for appellee.

Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.

MARKEY, Chief Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board, 178 USPQ 121 (1973), dismissing the opposition of appellant to the registration by appellee of MISS KING'S used on cakes, canned specialty cakes and fruit cakes since August 1, 1948.¹ Appellant relied on its existing registrations of KING'S² and KATHRYN KING'S,³ used on candy.

We affirm.

The record consists of the pleadings; appellant's pleaded registrations; appellee's application file; stipulated evidence on behalf of appellee establishing its 1948 date of first use, the growth in sales to the then current annual level of $100,000 and the sale of substantially all of appellee's cakes in cans; appellee's Notice of Reliance and copies of 23 third-party registrations made of record by said notice.

Neither party took testimony.

The board dismissed the opposition, finding no likelihood of confusion between MISS KING'S as applied to cakes and KING'S as applied to candy.

The board refused to consider appellant's other pleaded registration, KATHRYN KING'S, on the ground that the stipulated evidence established appellee's date of first use to have been prior to the filing date of the KATHRYN KING'S registration.

OPINION

We agree with the board that confusion is unlikely between KING'S used on candy and MISS KING'S used on cakes.

Appellee, as did the board, emphasizes the view that KING'S is "weak" and "entitled to limited protection." The description of marks as "weak" or "strong," and references to the "breadth of protection" to be given a mark, have served as a convenient type of shorthand in the literature of opinions concerned with likelihood of confusion. We employed such language in King-Kup Candies, Inc. v. King Candy Co., 48 CCPA 948, 288 F.2d 944, 129 USPQ 272 (1961) when we described KING'S as being "almost as weak a mark as can be found." Such expressions, however, should not obfuscate the basic issue. Confusion is confusion. The likelihood thereof is to be avoided, as much between "weak" marks as between "strong" marks, or as between a "weak" and a "strong" mark. Similarly, the statute, by providing remedies to trademark owners, enables those owners to protect their marks. It is through such owner-action that the public is protected from confusion. As we said in In re E. I. duPont deNemours & Co., 476 F.2d 1357, 177 USPQ 563 (1973), neither the grant of registration nor its refusal automatically protects against confusion.

The expressions "weak" and "entitled to limited protection" are but other ways of saying, as the board went on to recognize in its opinion herein, that confusion is unlikely because the marks are of such non-arbitrary nature or so widely used that the public easily distinguishes slight differences in the marks under consideration as well as differences in the goods to which they are applied, even though the goods of the parties may be considered "related." That is the present case.

The twenty-three registrations made of record by appellee do not, as appellee argues, establish widespread use of KING or KING'S. They do, however, indicate a widespread adoption and registration thereof.

We are convinced that the public would readily distinguish the differences between KING'S and MISS KING'S and between candy and cakes. Hence confusion is not likely when said marks are applied, respectively, to said goods.

Appellant argues that the goods are sold in the same channels of trade, but submitted no evidence in support of that contention. Appellant also charges the board with error for having considered the absence of actual confusion over a period of 20 years. As set forth in In re E. I. duPont deNemours & Co., supra, such lack of confusion is an evidentiary element to be considered. In the absence of evidence to the contrary, such lack of actual confusion over so many years must be considered in this case as supportive of a finding that confusion is not likely in the future.

Both parties have requested that we ignore the board's refusal to consider appellant's registration of KATHRYN KING'S and that we rule on the issue of whether confusion is likely when that mark and MISS KING'S are used on their respective goods. Both parties have briefed the issue here. The board's holdings, respecting the nature of opposer's mark, the differences in the marks and the goods, and the lack of actual confusion over many years, indicate that no useful purpose would be served by subjecting the parties to further proceedings below in this case. We think considerations similar to those listed above are equally applicable to this issue and that potential purchasers would readily distinguish KATHRYN KING'S candy from MISS KING'S cakes.

Because we find no likelihood of confusion between appellee's mark and either of appellant's registered marks, the refusal of the board to consider appellant's KATHRYN KING'S registration is moot. That refusal was error, as is evident from our opinions in Contour Chair-Lounge Co., Inc., v. The Englander Co., Inc., 51 CCPA 833, 324 F.2d 186, 139 USPQ 285 (1963); David...