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Keywords

patenttrademark

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Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 U.S.P.Q.2d 1435

Facts

Midwestern manufactures, markets, and sells dog and cat treats. In connection with the introduction of a new product, Midwestern filed an intent-to-use application with the Patent and Trademark Office seeking to register the mark WAGGIN' STRIPS for pet food and edible pet treats.

Issue

Rule

Under the Lanham Act, the likelihood of confusion is assessed based on several factors, including the similarity of the marks, the similarity of the goods, the channels of trade, and the conditions of sale. Evidence of a mark's fame, even if post-dating the application, can be relevant to the likelihood of confusion analysis.

Analysis

The Board characterized some of Nestle's evidence of fame as unconvincing, such as the sales figures for products bearing the BEGGIN' STRIPS mark, which carried little weight in the absence of sales figures for competing products.

Conclusion

The court affirmed the TTAB's decision, concluding that substantial evidence supported the finding of a likelihood of confusion between the two marks.

The Board upheld Nestle's claim of likelihood of confusion. After considering each of the factors bearing on the likelihood of confusion, the Board concluded that the marks were likely to lead to consumer confusion.

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