IP Law Daily, TRADEMARK—TTAB: ‘DANKE’ mark for chocolates survives opposition from ‘MERCI’ brand owner, (Nov 18, 2025)

By Saurabh Kashyap, B.A., LL.B., LL.M.

Opposer failed to establish a likelihood of confusion despite the conceptual overlap between the German and French equivalents of “thank you.”

In a non-precedential ruling, the Trademark Trial and Appeal Board (TTAB) dismissed an opposition filed by August Storck KG against Florend Indústria e Comércio de Chocolates LTDA's application to register a stylized DANKE mark for chocolates. The Board held that August Storck had not shown that registration of DANKE was likely to cause confusion with its registered MERCI marks, despite both words translating to "thank you" in different languages. The Board found significant differences in appearance, sound, and commercial impression between the marks. It concluded that "thank you" is a commonly used expression in the chocolate industry (August Storck KG v. Florend Indústria e Comércio de Chocolates LTDA, No. 91277224 (T.T.A.B. Nov. 14, 2025)).

Background. Florend Indústria e Comércio de Chocolates LTDA is a Brazil-based manufacturer of chocolate and chocolate bars, active in the international confectionery market. August Storck KG is a Germany-based confectionery company that produces a wide range of chocolates and is best known in the U.S. for its MERCI brand, sold in nationwide retail chains and online.

Florend applied to register the stylized word mark DANKE in brown and beige for “chocolate; chocolate bars” in International Class 30. The application was filed on March 26, 2021, under Section 1(b) of the Trademark Act, based on intent to use the mark in commerce. The application provided the English translation of “danke” as “thank you” and included a color claim, but no use date. August Storck opposed the application under Section 2(d) of the Trademark Act, alleging likelihood of confusion with its extensive family of registered MERCI marks. The opposer relied on registrations for MERCI (standard character), THANK YOU MEANS MERCI, MERCI TOGETHER, and other variants, all in International Class 30 for chocolate and candy products. It also asserted common law rights in the slogan DANKE HEIßT MERCI (German for “Thank you means MERCI”) and claimed that DANKE was confusingly similar in meaning to its marks.

Statutory entitlement. The Board found that August Storck satisfied the statutory entitlement requirement by demonstrating ownership of valid and subsisting U.S. registrations for the MERCI marks. This provided a direct commercial interest and a reasonable belief in damage, consistent with the framework established in Cunningham v. Laser Golf Corp., 222 F.3d 943 (Fed. Cir. 2000).

Priority. The Board held that Storck had established priority with respect to its registered marks, as they predated Florend’s application date and were properly made of record. However, Storck failed to prove priority of use for its alleged common-law mark, DANKE HEIßT MERCI. The evidence submitted—Amazon listings and foreign website printouts—was either post-dated or related to non-U.S. use, and thus insufficient under TTAB standards and Meenaxi Enters., Inc. v. Coca-Cola Co., 38 F.4th 1067 (Fed. Cir. 2022).

Likelihood of confusion analysis. The TTAB conducted its analysis under the 13-factor framework outlined in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357 (C.C.P.A. 1973).

Similarity of the marks. The Board focused on the comparison between DANKE and MERCI. While both words mean “thank you” in different languages, the Board applied the doctrine of foreign equivalents and found that U.S. consumers would understand this shared meaning. Nevertheless, it emphasized that the marks were visually and phonetically distinct: DANKE is pronounced “DAHN-kuh” and MERCI as “mehr-SEE,” and they share no common letters or syllables. The Board found that the different languages, visual styles, and pronunciations created distinct commercial impressions, outweighing the shared meaning.

Strength of opposer’s mark. The Board acknowledged the moderate commercial strength of the MERCI mark, citing over $100 million in U.S. sales from 2017 to 2022 and extensive nationwide advertising, including television and social media campaigns. However, the Board found no evidence of fame and held that MERCI was conceptually weak in the chocolate industry. It noted that “thank you” is a widely used term in chocolate marketing and gift packaging, as shown by third-party uses and Google image results. As a result, while MERCI had moderate commercial strength under the fifth DuPont factor, the thirteenth DuPont factor weighed against a finding of confusion due to the expression's ubiquity in the market.

Similarity of goods, trade channels, and consumer classes. The goods in question—chocolate and chocolate bars—were found to be legally identical, and the Board presumed overlap in trade channels and consumer classes. Both parties sold through general retail and online platforms, and the Board held that the goods would be marketed to the same consumers under the same conditions. These factors favored a finding of likely confusion.

Purchasing care. The Board found that chocolate is typically purchased with ordinary care and is often an impulse purchase. Therefore, consumers would not necessarily scrutinize the marks closely, which also favored the opposer.

Conceptual weakness and third-party use. The Board gave particular weight to the conceptual weakness of the term "thank you" in the chocolate industry. It considered evidence submitted by the applicant showing widespread use of "thank you" on chocolate wrappers, packaging, and gift items. The Board found that consumers were accustomed to seeing such messages used decoratively or generically, rather than as trademarks, thereby reducing the distinctiveness of both MERCI and DANKE in this context.

Conclusion. After weighing all relevant DuPont factors, the Board concluded that the differences in appearance, sound, and commercial impression between the marks, coupled with the conceptual weakness of “thank you” in the chocolate market, outweighed the similarities. Accordingly, the opposition was dismissed.

The Case is Opposition No. 91277224.

Judge: Cohen, K.

Attorneys: Joseph F. Schmidt (Taft Stettinius & Hollister LLP) for August Storck KG. Samuel F. Pamias (Hoglund & Pamias, PSC) for Florend Indústria e Comércio de Chocolates LTDA.

Companies: August Storck KG; Florend Indústria e Comércio de Chocolates LTDA

Cases: Trademark USPTO GCNNews