IP Law Daily, TRADEMARK—TTAB: SUZYQ mark for backpacks, purses, and wallets not confusable with Hostess SUZYQ cakes, (Apr 22, 2024)

By Ursula Furi-Perry, J.D., MBA

Likelihood of confusion to SUZYQ cake did not exist in connection with backpacks, wallets, and purses; though mark was nearly identical to Hostess’s pleaded mark, the goods were unrelated and the trade channels neutral.

The applicant sought to register the mark SUZYQ in connection with backpacks, wallets, and purses, and Hostess Brands opposed the registration based on likelihood of confusion and dilution, contending that the mark was similar to its SUZYQ mark as applied to cakes. Weighing the DuPont factors, the TTAB held that a likelihood of confusion did not exist as to the marks in question in connection with backpacks, wallets, and purses. Although the applicant’s mark was nearly identical to Hostess’s pleaded mark, the goods were unrelated and the trade channels neutral (Hostess Brands, LLC v. Williams, April 18, 2024, Goodman, C.).

Background. Applicant Holly Sue Williams sought to register the mark SUZYQ, in standard characters, for backpacks, wallets, and purses in International Class 18. Hostess opposed the registration on the grounds of likelihood of confusion, citing its SUZYQ mark in connection with cake in International Class 30, and based on its alleged prior use of the mark SUZY Q’S for cake, a wide variety of apparel, goods including tote bags, and merchandise.

Analysis. After deciding some preliminary evidentiary matters and noting that it would consider the issue only in connection with Hostess’s pleaded registration of SUZYQ for cake, the TTAB addressed the likelihood of confusion between the products, using the factor test under DuPont.

Regarding the strength of the SUZYQ mark, the Board found that because the mark was registered on the Principal Register without a claim of acquired distinctiveness, the mark was presumed to be inherently distinctive. The TTAB addressed the fame of the mark separately from Hostess’s house mark (HOSTESS BRANDS) even though the two were shown in the record as co-branded, citing to Bose Corp. v. QSC Audio Prods. Inc. The Board found the strength of the mark to be a neutral factor.

The Board held that the evidence provided by the opposer’s witnesses was insufficient to support a finding that SUZYQ is a famous, well-known, or widely recognized brand. “The witnesses provided no specific sales or advertising information for the SUZY Q’s brand alone. Instead, Opposer’s witnesses generally discussed sales, marketing and advertising expenditures as a whole for its other Hostess Brands marks,” the TTAB noted in its decision. The opposer’s witnesses discussed general sales, marketing, and advertising information for its brands, rather than specifics as to the SUZYQ brand, and they provided general information about social media accounts and website follower information.

The Board found the two marks to be similar in appearance, sound, meaning and commercial impression, with that factor weighing in favor of likelihood of confusion.

However, the Board found the goods were dissimilar: the opposer’s goods are “Cake” and the applicant’s goods are “Backpacks; Wallets” and “purses,” with that factor weighing against the likelihood of confusion, as the evidence of record did not establish that cake and wallets, backpacks and purses were related.

Moreover, the Board held that the established, likely-to-continue trade channels, and the classes of purchasers differed for the parties’ goods, with the intended consumers being the general public, again being a neutral factor in the test. The fact alone that both parties may offer their goods online was insufficient to find overlapping channels of trade, the Board noted. The TTAB found confusion unlikely, noting that although the applicant’s mark was nearly identical to Hostess’s pleaded mark, the goods were unrelated and the trade channels neutral.

Board action. The Board dismissed Hostess Brand’s opposition.

The Case is Opposition No. 91272724.

Attorneys: Cathryn A. Berryman (Winstead PC) for Hostess Brands, LLC. Avraham S.Z. Cohn (Cohn Legal PLLC) for Holly Sue Williams.

Companies: Hostess Brands, LLC

Cases: Trademark USPTO