King-Kup Candies, Inc., Applicant-Appellant v. King Candy Company, Opposer-Appellee , 288 F.2d 944 ( 1961 )

KIRKPATRICK, Judge.

This is an appeal by the applicant, King-Kup Candies, Inc., from the decision of the Trademark Trial and Appeal Board sustaining an opposition to the registration of the trademark, “KingKup.”

The opposer is King Candy Company, registrant of “King’s” and “King’s for American Queens,” and its priority is not disputed.

Both parties are manufacturers of candy and the goods in connection with which the marks are used are generally the same.

Neither party has made any point of the slight difference between the words “King” and “King’s” nor of the fact that each of the competing marks consists in-part of the corporate name of one of the parties, nor do we. The question involved is not an applicant’s right to use its mark but its right to registration.

The issue here is whether the applicant’s mark so resembles either of the opposer’s marks as to be likely to cause confusion or mistake or to deceive purchasers. We shall, therefore, consider “King’s” only.

The board found as a fact that the word “cup” indicates the form of a candy and that that term is so used generally in the trade and particularly in the applicant’s advertising. It is applied to candies made and sold in the form of cups including milk chocolate peanut butter cups and milk chocolate coconut cups. It is clear, therefore, that the syllable “Kup,” which is a full equivalent of the word “cup,” is descriptive. The fact that kingcup is a dictionary recognized word for a common wild flower does not render its use in the candy business, in which “cup” is a descriptive term, fanciful or arbitrary.

In The Bon Ami Company v. McKesson & Robbins, Inc., 93 F.2d 915, 916, 25 CCPA 826, Judge Hatfield, in a special concurring opinion, said:

“If all that a newcomer in the field need do in order to avoid the charge of confusing similarity is to select a word descriptive of his goods and combine it with a word which is the dominant feature of a registered trade-mark so that the borrowed word becomes the dominant feature of his mark, the registered trade-mark * * * soon becomes of little value * *

Paraphrasing a part of the opinion of the court in National Drying & Machinery Company v. Ackoff, D.C.E.D.Pa., 129 F.Supp. 389, affirmed National Dryer Mfg. Co. v. National Drying Machinery Co., 3 Cir., 228 F.2d 349 (an action for infringement of the trademark “National” used on different types of drying machinery by the trademark “National Dryer” used on electric hand dryers), it must be conceded that “King’s” is almost as weak a mark as can be found. However, it is quite likely that a purchaser would have some difficulty in explaining which product he desired if he should try to identify it by its trade name. He would have to ask for King’s cup candies as distinguished from King-Kup cup candies, or vice versa. If a trademark, however weak, is to retain any value at all, its owner must be protected against a competitor’s placing his customers in such a dilemma.

On reason for the rule as stated in Judge Hatfield’s opinion appears rather strongly in the present case, namely, that there is more than a probability that, if the marks should be used concurrently, the casual purchaser of candy, familiar with King’s candies, would, as the board said, “assume upon encountering ‘KingKup’ candy that ‘King-Kup’ candy is a candy in cup form originating with op-poser.” In other words, the purchaser would be very likely to assume that King’s was engaged in promoting a particular product of its own manufacture. This was the point mainly relied upon by the board in its decision and we agree.

Affirmed.