The Trademark Attorney is the “Most Likely” to be Confused

I imagine the United States Trademark and Patent Office thought of people like me when they decided on the “likelihood of confusion” standard when examining trademarks. I have a confession, sometimes common sense things really confuse me. Really. My husband and family have no less than three dozen or more stories of when I completely messed up or was baffled by a quite normal occurrence.

One of The Hubs’s favorite stories happened around Christmas. Everyone was in town and so there was more than one trip to the grocery store. In order to decrease the time spent fighting the crowds, we made a list of all last minute items needed. Dan and I were going to cook sausage balls on Christmas morning based on one of his family’s Cracker Barrel Cheeserecipes. If you happen to not be from the South and are scratching your head as to what exactly is a sausage ball, first off, as my Granmaw would say “bless you.” Second, HERE is a wonderful recipe which is pretty close to The Hubs’s family recipe.  hint We always add a dash or two of Worcestershire sauce, which always kicks it up a notch.

Cracker Barrel Store

The recipe called for extra sharp Cracker Barrel® cheese. In addition to the grocery store, we had to stop at the dry cleaner’s to pick up table linens, the bakery for cakes and to the post office. We had just pulled out of the driveway and were making a list of the order we needed to carry out all of our errands when I piped up to my Dad and The Hubs “Don’t forget we need to stop by Cracker Barrel to pick up the cheese for the sausage balls.” [insert record scratch sound effect] “Ryanne we need to go to the grocery store to by cheese in the dairy aisle, NOT the Cracker Barrel Old Country Store and Restaurant.”  Bless it.

That’s right I thought we needed to stop by Cracker Barrel Old Country Store and Restaurant, an interstate chain restaurant started in Tennessee serving traditional Southern cuisine, to buy the called for ingredient. In my defense, the Cracker Barrel Old Country Store and Restaurant is also a store that sells things with a “Southern flair” such as cornbread meal, cream sodas, hard candy and other novelty items to take along as visitors continue on their travels. How can two products and companies share the same name and thus a similar trademark?

The main purpose of a trademark is to prevent marks that are confusingly similar and to prevent confusion in the public. To determine if something is eligible for trademark registration, the Trademark Office looks to several factors. Some of those factors include (1) is the mark in the same industry or category as another; (2) does the mark sound or look similar to another mark already in existence; and overall (3) would there be confusion to the public. The Trademark regulations state that a mark will not be registered, if it “Consists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive: Provided, That if the Director determines that confusion, mistake, or deception is not likely to result from the continued use by more than one person of the same or similar marks under conditions and limitations as to the mode or place of use of the marks or the goods on or in connection with which such marks are used, concurrent registrations may be issued to such persons when they have become entitled to use such marks as a result of their concurrent lawful use in commerce …” § 2 (15 U.S.C. § 1052) (d) [emphasis added] Meaning, two marks with the same name can coexist so long as the marks do not “confuse or deceive.”

From the guidelines it seems the examining attorney did not think the average person would find any confusion between Cracker Barrel cheese product and Cracker Barrel Old Country Store and Restaurant. Maybe it’s just us Southern girls who would make that association. What other trademarks can you think of where the marks are similar? Delta airlines and Delta faucets being another example. Take part in the Comments section below and Stay Tuned In!

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