Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 ORIGINAL APPALACHIAN ARTWORKS, INC.
NATHAN WINTER STREETER, D.B.A. SUNNY ACRES PIG FARM
July 10, 1987
Opposition No. 71,402, to application Serial No. 489,874, filed July 16, 1984.
William H. Needle and Needle & Rosenberg, P.C. for Original Appalachian Artworks, Inc.
Nathan Winter Streeter, dba Sunny Acres Pig Farm, pro se.
Before Sams, Krugman and Cissel
Applicant, Nathan Winter Streeter, applied to register the term 'CORN PATCH PIGS', with 'PIGS' disclaimed, on the Principal Register, for 'toy stuffed animals.' [FN1] Registration was timely opposed by Original Appalachian Artworks, Inc. As grounds for the opposition opposer alleges that since prior to applicant's adoption and use of applicant's mark in connection with applicant's toy stuffed animals, opposer adopted, used, and registered [FN2] 'CABBAGE PATCH KIDS' as a mark for dolls and soft sculpture dolls. Opposer contends that applicant's mark, as used on applicant's goods, so resembles opposer's mark, as it is used on opposer's goods, that confusion is likely.
Applicant's answer is a denial of the essential allegations.
Applicant took no testimony, nor did it make any other evidence of record.
Opposer made of record its pleaded registration, applicant's answers to several of opposer's interrogatories, copies of articles and advertisements from various periodical publications, and a certified copy of opposer's copyright registration for its 'KOOSAS' stuffed animal. [FN3]
Only opposer filed a brief. No oral hearing was requested.
The sole issue before us is likelihood of confusion. Priority is not an issue here, because opposer is relying on a valid, subsisting registration. As to likelihood of confusion, opposer has, quite simply, failed to prove its case. It is true that, from applicant's answers to opposer's interrogatories and from the articles properly made of record by opposer, we can conclude that applicant was aware of the 'CABBAGE PATCH KIDS' mark when he selected his mark 'CORN PATCH PIGS.' Moreover, 'CABBAGE PATCH KIDS' is an arbitrary mark as applied to dolls. Nonetheless, there are obvious and substantial differences between the marks. Both marks consist of three words, but they share only one word in common. They differ in overall pronunciation and appearance. One connotes children; the other, pigs. Even if we assume that 'CORN PATCH PIGS' brings to mind the 'CABBAGE PATCH KIDS' mark, that fact does not in itself establish likelihood of confusion. See Jacobs v. Int'l. Multifoods Corp., 668 F.2d 1234, 212 USPQ 641 (CCPA 1982); In re P. Ferrero & C.S.p.A., 479 F.2d 1395, 178 USPQ 167 (CCPA 1973).
Opposer offered no evidence from which we may conclude that its mark is famous, nor did it introduce any admissible evidence to show that dolls bearing its mark and stuffed animals bearing applicant's mark are marketed in a manner that would give rise to confusion. (The 'KOOSAS' copyright registration, standing alone, proves nothing.) Absent such evidence, we find the marks sufficiently dissimilar in commercial impression as applied to the parties' goods that source confusion is not likely.
J. D. Sams
G. D. Krugman
R. F. Cissel
Members, Trademark Trial and Appeal Board
FN1. Serial No. 489,874; filed July 16, 1984; claiming use from April 16, 1984. (By order dated March 20, 1986, the Board deferred action on applicant's request to amend its dates of first use from March 13, 1984 to April 16, 1984. The request for amendment is granted, and the amendment will be formally entered in the application file).
FN2. Registration No. 1,298,970, issued October 2, 1984; use since 1982 claimed.
FN3. Opposer also attempted to get other items into the record by means of a notice of reliance. The following additional items were not properly made of record, however, and were not considered: (a) A copy of a printed advertisement for applicant's goods (Exhibit 5). This document was not introduced in connection with any testimony and was not identified with the specificity required in order for it to be considered a printed publication under Rule 2.122(e). (b) A package for 'CABBAGE PATCH KIDS 'KOOSAS" stuffed animals (Exhibit 6). (c) A 'certificate of registration' sold by applicant with its 'CORN PATCH PIGS' dolls (Exhibit 11). (d) A letter sent by applicant to purchasers of its dolls (Exhibit 12). (e) A package for opposer's goods (Exhibit 13). (f) A copy of the 'Birth Certificate' and 'Official Adoption Papers' sold by opposer (Exhibit 14). Items b)-f) were not introduced in connection with any testimony and are not otherwise admissible simply by filing a notice of reliance.
The Trademark Rules of Practice (in particular Rules 2.120(j) and 2.122) are quite clear about the sort of evidence that may be introduced by notice of reliance. On occasion, the Board has allowed into evidence, under notice of reliance, certain materials not ordinarily admissible by such notice, where there has been no objection entered by the party opponent and where the conduct of or papers filed by the party opponent could be fairly interpreted as a stipulation that the evidence be considered of record. See, e.g., Jeanne-Marc, Inc. v. Cluett, Peabody & Co., Inc., 221 USPQ 58, 59 n.4 (TTAB 1984). In this case, applicant, an individual acting pro se, filed neither evidence nor a brief on the case; we cannot say, therefore, that as the result of any action or statement, he treated as being of record the material improperly offered by notice of reliance.
We see this as a different situation from that involved, for example, in Squirtco v. Tomy Corp., 697 F.2d 1034, 216 USPQ 937, 939 n.4 (Fed. Cir. 1983), in which the Board was held to have improperly excluded evidence offered in connection with a testimony deposition, where there was no objection to the evidence at the time it was offered, or thereafter, and where, had there been a timely, proper objection, the proper foundation could have been laid for the introduction of the evidence. In the Squirtco sort of situation, the party offering evidence had every reasonable expectation that the evidence was properly of record. Oposer here, by contrast, may not reasonably presume evidence is of record when that evidence was not offered in accordance with the Trademark Rules.