Snippets

In a recent UK trade mark opposition, a comparison had to be made between a word mark and an earlier device mark. The difficulty faced by the Hearing Officer was that the device mark is not usually referred to by the word mark.

The trade mark applicant, Baker Street Clothing, filed two UK trade mark applications for the trade mark Alligator, one for clothing and headgear in Class 25, the other for related retail services in Class 35. Both applications were opposed by the owner of the well-known fashion label, Lacoste. The opponent relied, in part, on its earlier registered rights in the iconic Crocodile logo. (The founder of the opponent company, René Lacoste, was a highly successful tennis player in the 1920s, whose nickname was “The Crocodile”).

On the evidence before him, the Hearing Officer accepted that the earlier goods and the goods/services applied for were either identical or very similar. He also accepted that the opponent had an enormous reputation in its logo. On the other hand, he decided that there was no visual or phonetic similarity between the two marks. He then moved on to the question of conceptual similarity. In a crucial finding, the Hearing Officer first concluded that, amongst the relevant UK consumers, some would describe Lacoste’s logo as a crocodile, but others, who had not been educated by Lacoste as to the nature of the logo, would see it as an alligator. Some of these latter consumers might therefore convert the Lacoste logo into the word “alligator” and hold that thought in their memory. This could then act as a hook for the memory which would give rise to a conceptual identity between the marks. The hearing officer’s views on this matter were fortified by the fact that Lacoste’s logo had been cited as a relevant prior trade mark right by the examiners of both of the Alligator trade mark applications.

This finding of conceptual identity was enough to tip the scales in Lacoste’s favour. The hearing officer found that there was a likelihood of confusion between the opponent’s mark and Class 25 goods and the applicant’s Alligator mark and the Class 25 goods and Class 35 services they had claimed. He therefore rejected both UK trade mark applications under Section 5(2)(b) of the Act.

 

It has long been OHIM’s policy that a claim to a class heading in a CTM application or registration covers all of the goods and/or services that fall within that class. Thus, if the CTM right sets out the Class 9 class heading, computer software is protected by that claim, even though computer software is not expressly included in the Class 9 class heading. In this regard, see the result of the revocation action (1073C) brought by Arild Gautestad against Nokia’s CTM registration for Preminet. The CTM registration claimed the Class 9 class heading. Nokia had only used their trade mark in respect of software. In a decision that followed OHIM’s practice without attempting to rationalise it, the Cancellation Division maintained Nokia’s CTM registration for software. This OHIM practice has always been controversial in some quarters. The UK Trade Mark Office, for example, does not follow the same practice. In the UK, a claim to a Class 9 class heading would not be seen as covering computer software. Under UK trade mark practice, it would be necessary to include computer software expressly if such goods were of interest to a trade mark applicant.

A recent Appeal Board decision (Montenapo v Moisés Garcia-Bieno Pérez; R1840/2007-2) given in relation to a CTM registration covering Class 35 services suggests that cracks may now be appearing in the OHIM practice. In this case, Mr. Pérez had filed a CTM application for Nara Camicie covering the Class 35 class heading plus the specific services “commercial retailing of ready-made clothing”. The CTM application was opposed by Montenapo based on an earlier CTM registration for Nara Camicee covering clothing, footwear and headgear in Class 25.

The Opposition Division upheld the opposition in respect of “commercial retailing of ready-made clothing”, but rejected it for the remaining Class 35 services. The opponent appealed the partial rejection of their opposition. In dismissing the appeal, the Appeal Board concluded that “because of the particular features of the concept of “retail services”, a CTM applicant wishing to protect such retail services needed not only to mention such services specifically, but also to give details of the goods (or type of goods) of interest”.

Eventually this important issue will have to be decided by the European Court. If the decision goes against OHIM’s practice, numerous CTM proprietors who have taken the Office’s pronouncements on this matter at face value will find that they own CTM registrations that do not cover the goods or services that they sell under the registered mark. Rather perversely, such an outcome is likely to give OHIM even more business as CTM owners move to close the unexpected gaps in their trade mark protection.

 

Under Article 43(3) of the CTM Regulation, if an opponent relies on an earlier EU national trade mark right that has been registered for over five years at the date of publication of the opposed CTM application, the CTM applicant can ask the opponent to prove use of the registered trade mark in relation to the registered goods and/or services in the relevant jurisdiction during the appropriate five year period. According to Article 15(2)(a) of the Regulation, such a CTM opponent can still rely on his earlier trade mark right if he has used another mark that differs only “in elements which do not alter the distinctive character” of the registered mark.

In yet another case (L’Oreal v Jafer; R1939/2007-1) which illustrates the indulgence shown by OHIM to Spanish trade mark owners and Spanish consumers, the use of the trade mark Tentations was allowed to maintain the validity of a Spanish trade mark registration for Tentation. According to the Board of Appeal the addition of the letter S to the end of the registered mark did not substantially alter the visual appearance, the pronunciation or the conceptual impression of the trade mark for the Spanish consumer.

This decision should be contrasted with earlier Appeal Board decisions, such as Sogico v Hybris Holding (R275/2006-2), where the use of the trade mark hybris with a device did not sustain a German trade mark registration for the trade mark Hybris (slightly stylised).

 

A recent case decided by the Court of First Instance (Aventis Pharma v Nycomed; T-95/07) provided a good illustration of OHIM’s flawed practice in Class 5.

Nycomed’s predecessor in title filed a CTM application for Prazol covering, after amendment, “medicines excluding veterinary products”.

 

Aventis’ predecessor in title opposed the CTM application based on their earlier Benelux trade mark registration for Prezal claiming gastro-intestinal preparations (once evidence of use had been considered).

The Opposition Division upheld the opposition, finding the marks to be similar, the goods identical and therefore a likelihood of confusion. Nycomed appealed and the Board of Appeal reversed the decision. The Board found that the “clear” phonetic differences between the two marks outweighed their “low level” of visual similarity. Using the reasoning that colours OHIM’s Class 5 practice, the Board attributed a higher than normal level of attention to the consumers of pharmaceutical products, namely health professionals and patients.

This time it was Aventis’ turn to appeal, which they did, to the Court of First Instance (CFI). In spite of OHIM arguing in favour of the Appeal Board’s decision, the Court reinstated the Opposition Division’s rejection of the CTM application. Exercising the common sense that the Board of Appeal appeared to lack, the Court found that the two marks had both strong visual and phonetic similarities. Since neither mark had a meaning that would allow patients to distinguish between them, a likelihood of confusion, in respect of identical goods, was inevitable.

It is difficult for the writer to understand how anyone, except perhaps Nycomed, could have thought that these two marks could be differentiated one from the other. Both marks are six letters long, have the identical string Pr-z-l and only differ by the similar vowels, a, e and o. Further, both marks are invented words, so there is no conceptual meaning to assist in the process of comparison. If imperfect recollection is given any weight at all, the question of the similarity of the two marks should have been a foregone conclusion.

However, such a conclusion would fail to take into account OHIM’s flawed practice in the Class 5 area. This practice assumes a “higher” level of attention amongst the relevant consumers of pharmaceutical products which encompasses doctors and pharmacists, but also includes the end users, patients. This “higher” level of attention has recently led to Appeal Board decisions where marks such as Eugastrol ratio and Eugastrim, Finonil and Timonil, Oftal Cusi and Ophtal, Paxigen and Prexagen and Quontyl and Quensyl were all found to be dissimilar in oppositions that were rejected. It is almost certain that, if the goods involved in the above oppositions had been outside Class 5, these decisions (on the similarity of marks) would have been different.

So, is it justified to apply this “higher” level of attention in Class 5 cases? In the writer’s view it is not, for the following reasons. First, most cases are fought between two sets of goods that not are limited to “prescription only” products and therefore can be ordered and bought by patients without a doctor’s or a pharmacist’s intervention. However, a “prescription only” level of comparison is often assumed by those considering the oppositions. Second, many users of pharmaceutical products will be elderly and it is submitted that neither their high level of attention nor their ability to differentiate between closely similar marks should be assumed. Third, the potentially catastrophic impact of a patient taking the wrong drug is omitted from the global assessment of the CTM mark and Class 5 goods and the earlier mark and goods. Even if OHIM refuses to take into account the public safety issues that can apply after pharmaceutical products are purchased and taken home, surely the fact that all drugs are poisons and that purchasing the wrong one could pose a serious threat to a patient’s health, should be factored into the comparison equation. This could easily be done by assuming only a normal level of attention amongst all the relevant Class 5 consumers and thereby setting the bar for similarity of marks rather lower.

If all of the above is accepted by OHIM, and proper weight is given to an inability to make a conceptual comparison between marks and the risks posed by imperfect recollection, then a more sensible practice in this important area should begin to develop.

 

A German company, Fernsprechbuch-Verlag Hans Müller, obtained a CTM registration for Golden Pages in Classes 16, 35, 41 & 42 after an opposition brought by VNU World Directories had been rejected on formal grounds. A subsidiary of VNU, Truvo Belgium Comm, then sought to cancel the CTM  on  the same grounds and the same prior trade mark rights that had been relied on by VNU in the opposition. These included an Irish trade mark registration for Golden Pages in Class 16.

The German CTM proprietor argued that the cancellation proceedings were inadmissible, because the parent company of the applicant to cancel had already unsuccessfully opposed the CTM (application) with the same earlier rights and grounds.

The Cancellation Division ruled that the earlier opposition did not prevent Truvo/VNU from having a second bite of the cherry. The cancellation action did not constitute a “misuse of rights”. Even worse for the CTM proprietor, the Cancellation Division found that the two marks were identical and that the registered goods and services were either identical or similar to the opponent’s goods. They therefore cancelled the CTM.

 

A word of warning to those considering the filing of a trade mark that features colour at OHIM. If you wish to claim priority, ensure that your priority application is also in colour. This is the lesson from a decision of the Board of Appeal on a CTM application for Bimbo (stylised). The CTM application covered the stylised mark in blue and red. The Australian priority application claimed the same mark but in black and white. Even though Australian law expressly provides that if “a trade mark is registered without limitations as to colour, it is taken to be registered for all colours”, the Board found that the marks were not identical and that therefore the priority claim was invalid.

 

Elsewhere in this edition of  Make Your Mark, (see page 26), we report a UK trade mark infringement action based on a CTM registration (no. 2174761) for a 3D shape of a food mixer bearing an illegible word. In that case, an earlier CTM  application (no. 1331685) for the 3D shape alone had been refused as non-distinctive.

Another way of obtaining the registration of a 3D shape mark at OHIM, other than by meeting the Office’s (and the ECJ’s) unreasonably high standard of acquired distinctiveness, has recently been revealed in a Board of Appeal decision (R1354/2007-1) given in respect of an application (CTM 4058814) for the shape of a whisky bottle. The applicant, the German supermarket chain Lidl, claimed a bottle shape that featured the phrases “12 Years Old” and “Single Malt” on its front and the distinctive term “Ben Bracken” on the bottom of the bottle. According to the Board, consumers were not used to seeing a bottle of whisky with no trade mark at all; consequently, they would check the bottle and would note the trade mark on the bottom of the bottle. On this basis, they allowed the application.

As it becomes more and more difficult to register shape marks at OHIM, unusual solutions to the problem will have to be sought. The idea of a hidden trade mark is an extremely good one. You can obtain a CTM registration on the basis of the above precedent and then seek to enforce the right against competing shapes on the basis that the distinctive feature is the shape of the product or container rather than the hidden word or device mark which, it can be argued, should either be treated as non-existent or as a de minimis element.

 

OHIM’s opposition practice is to find trade marks that consist of, in the one case, a surname and, in the other case, a full name including that surname confusingly similar. The one possible exception to this rule is the presence in both marks of a common surname.

This rather inflexible practice has now been confirmed by the CFI in a case (Barbara Becker v Harman International

Industries; T-212/07) involving a CTM application for the trade mark Barbara Becker. The eponymous applicant had filed her application in Class 9. It was opposed by the US opponent on the basis of an earlier CTM registration for Becker covering identical and similar Class 9 goods.

Following OHIM’s practice to the letter, the Opposition Division found a likelihood of confusion and rejected the CTM application. According to the Opposition Division, the two marks had visual and phonetic similarities and were conceptually identical. On appeal (R502/2006-1), the First Board of Appeal took a different view. They found that the two marks had a low level of visual and phonetic similarity, given the presence of the name Barbara at the beginning of the CTM applicant’s mark. Turning to the conceptual comparison, the Board accepted that Becker was a well-known surname (because of its association with the tennis player Boris Becker), as well as a common surname (at least in Germany). The trade mark Barbara Becker on the other hand was likely to be recognised as the full name of the tennis player’s ex-wife. Taking all of this into account, the Board found that the two marks were clearly distinct and rejected the opposition.

Harman appealed to the Court of First Instance and the Court reversed the Board of Appeal’s decision. Relying on earlier case law in which the names Enzo Fusco and Antonio Fusco were found to be confusingly similar, the Court ruled that, at least in Italy, consumers generally attribute greater distinctiveness to the surname than to the forename in trade marks. In addition, according to the Court, the surname Becker had a stronger distinctive character than the name Barbara in the CTM mark and retained an independent, distinctive role in that mark. In view of this, the Court decided that the two marks were confusingly similar and rejected the CTM application.

In the writer’s view, it is bad enough that common surnames, such as Becker, should be accepted by OHIM as inherently distinctive for all goods and services. Now that extremely lenient practice has been compounded by allowing the owners of such marks to prevent the registration of later marks that are full names containing that surname.

It is submitted that there are some surnames that are so rare and well-known that they are likely to be confused with a full name containing that surname. Einstein and Albert Einstein and Picasso and Pablo Picasso might be examples of such a situation. However, in the majority of cases, a surname and a full name containing that surname should be clearly differentiable one from the other, visually, phonetically and conceptually. To do otherwise is to give the owners of, in most cases, marks of limited distinctiveness, such as common surnames, a breadth of protection that is unjustifiable. In most instances, if the owner of a CTM registration for a surname wishes to prevent the registration or use of a later mark for a full name containing that surname, they should be required not only to prove a significant reputation in that surname throughout the EU, but also to show that the relevant consumers are likely to assume that goods bearing the later, full name mark, come from the same source as the earlier surname mark.

 

On the front page of this edition of Make Your Mark, we report an enlightened decision of the Court of First Instance (Powerserv Personalservice v Manpower; T-405/05) in which a pragmatic approach to the evidence required to prove the acquired distinctiveness of an English language mark (Manpower) was taken.

Unfortunately, another recently reported CFI case (New Look; T-435/07) suggests that the Manpower decision may have been an aberration. In the New Look case, a CTM application for that word mark was filed in respect of a wide range of goods and services including those in Classes 3, 9, 14, 16, 18, 25, 26 and 35. The CTM examiner rejected the mark as non-distinctive/descriptive (Articles 7(1)(b) and 7(1)(c) CTMR). The applicant filed evidence of use of their mark, principally in the UK, but the examiner maintained the objection. On appeal, the Board of Appeal also rejected the CTM application, although only on the grounds of non-distinctiveness (Article 7(1)(b)), ruling that the evidence of use was insufficient. The Board emphasised that the absence of any convincing evidence of acquired distinctiveness in Cyprus, Denmark, Finland, Ireland, Malta, the Netherlands and Sweden was fatal.

The CTM applicant appealed to the CFI, on the basis that the evidence of use provided should have led to the acceptance of the application for the goods and services rejected by the Board of Appeal. In particular, New Look argued that the Appeal Board had been wrong to require a demonstration of acquired distinctiveness in EU member states other than the main English speaking countries, Ireland and the UK. The CFI was not swayed by this argument. The Court took the view that, because there was a basic understanding of English in at least Denmark, Finland, the Netherlands and Sweden, the mark should be seen as inherently non-distinctive in those countries as well as in Ireland and the UK. The Court didn’t stop there however. The suggestion that the position in Cyprus and Malta should also be taken into account only appeared to be rejected because those two island states were not members of the EU when the CTM application at issue was applied for. Further, the Court dismissed the applicant’s observation that the approach being taken by the authorities to English language trade marks was “tantamount to requiring a CTM applicant to guess at the level of understanding of English with regard to a specific mark throughout the Community, thus entailing an extremely complex assessment for which there is no reliable data…”. According to the Court, “…it is not complex…to establish either the level of command of English which is sufficient to understand the sign applied for or the level of command of English in the territories referred to in the Appeal Board’s decision”. They then proceeded to refuse the application.

If OHIM takes this case, rather than the Manpower case, as their touchstone for the treatment of non-distinctive/descriptive English language marks, then in the vast majority of cases it will kill any chance of overcoming such objections by proving acquired distinctiveness in the Community. It can be safely assumed that an absence of proof of use in Cyprus, Denmark, Finland, Malta, the Netherlands and Sweden (as well as either Ireland or the UK) will lead to an objection being maintained. Further, whatever the Court may believe, the approach being followed by the authorities is extremely vague, which leaves the door open for official objections being raised in countries such as Austria, Belgium, Germany and Luxembourg where the knowledge of English is not inconsiderable. In many ways, it would be easier, and a fairer reflection of the anti-English language position that is taken by the authorities, if they simply said that the knowledge of English is now so widespread that evidence of acquired distinctiveness in every EU Member State is required to overcome an objection raised on absolute grounds.

Two issues occur to the writer. First, one assumes that, in view of the widespread knowledge of French in Belgium and Luxembourg (as well as France) and of German in Denmark and the Netherlands (as well as Austria and Germany), that OHIM will require proof of use of non-distinctive/descriptive French and German language marks in those additional countries, in order to allow them to proceed.

Second is the observation that, whatever the level of knowledge of English in the EU, an English language mark will immediately be seen as different, and therefore probably distinctive, in a country other than Ireland or the UK because the mark is not in Danish, Dutch, French or German (or in any other of the numerous official languages of the EU). In a Danish city centre, a New Look branded shop will stand out simply because the mark is not Danish, but English. This will be the case whatever the level of knowledge of English as a second language. If this factor were taken into account, then English language trade marks would not be so severely disadvantaged as they are at present when the issue of acquired distinctiveness is being considered.

In spite of the New Look case discussed above, the owners of borderline distinctive English language marks should not give up all hope. The level of inconsistency shown by both OHIM and the European Court can still be enough on occasion to gain a positive result.

In the latest example (Ford v OHIM; T-67/07), the Court of First Instance overturned a Board of Appeal decision rejecting the word Fun as non-distinctive/descriptive (Articles 7(1)(b) and 7(1)(c) CTMR) for land motor vehicles. According to the Court, the link between the word Fun and land motor vehicles was not sufficiently direct or specific to allow the relevant public to see the word immediately as a description of the goods or one of their characteristics.  Luckily for Ford, an internet printout that showed precisely such a direct and specific link between “fun” and cars was only introduced by OHIM for the first time before the Court. Following their normal practice, the CFI ignored this evidence and proceeded to accept the mark for registration.

Given that an internet search of UK websites for the phrase “Fun Car” produces nearly 30,000 hits, the first 100 of which use “fun” descriptively, it would not be surprising if OHIM were to appeal this decision to the ECJ. For the time being, however, Ford confirms the wisdom of Napoleon’s maxim that his generals should be lucky rather than good.

 

It has long been established that the European Union recognises regional, EU-wide exhaustion of trade mark rights, but not the international exhaustion of such rights. The question of whether regional or international exhaustion extended to three countries, Iceland, Liechtenstein and Norway, who are members of the wider European Economic Area (EEA) whilst remaining outside the EU, was the subject of some controversy, with different rulings having been made by different European Courts about ten years ago.

In a case (L’Oréal Norge v Per Aarskog) involving the importation of Redken cosmetics from the US to Norway, the European (EFTA) Court has now decided that the exhaustion of trade mark rights in the EEA is regional, rather than international. It is therefore usually possible to prevent the importation of original trade marked goods into the EEA (EU countries plus Iceland, Liechtenstein and Norway) from markets outside that region.

 

The Liver Bird has been the symbol of the English city of Liverpool for over six centuries. The precise nature of the bird appears to be controversial. In some representations it looks like a cormorant, in others, like a bird of prey. One thing is certain however, the city and its citizens are fiercely proud of the symbol.

Liverpool Football Club is one of the most famous and successful football teams in the world. Five times winners of the European Cup, the club has become intimately associated with the city and is acknowledged as one of its greatest success stories.

Not surprisingly, the football team’s badge features a bird of prey form of the Liver Bird. As would be expected in these commercially driven times, the badge has been registered as a trade mark both in the UK and at OHIM for a wide variety of merchandise. Faced with a flood of counterfeit Liverpool FC products, however, the club went one step further last year, when they attempted to register their form of the Liver Bird itself. This UK trade mark application caused outrage both in the local press and in the corridors of local political power, Liverpool City Council. As the football club were faced not only with almost certain defeat in any opposition brought against the application but also with the opprobrium that would almost certainly follow such a defeat, they decided to stick with the status quo (the legal equivalent of a 0-0 draw) and withdrew the application.

 

In another football related story, the OHIM Board of Appeal has cancelled a number of CTM registrations owned by the world football organisation, FIFA, that were associated with the last football World Cup held in Germany. The marks cancelled were Germany 2006, World Cup 2006, WM 2006, World Cup Germany and World Cup Germany 2006. The Board found them all to be non-distinctive and/or descriptive (Articles 7(1)(b) and 7(1)(c) CTMR) not only of football tournaments but also of the merchandise associated with such tournaments.

If these decisions are maintained and generally followed by national trade mark offices in Europe it will severely inhibit FIFA’s ability to attract sponsors and their considerable funds for future football tournaments. Further, the knock-on effect could also adversely affect other major sporting events. Not surprisingly therefore, FIFA has appealed these decisions to the Court of First Instance where the Board’s comment (in the World Cup Germany case) that FIFA’s “interest in enhancing its income by monopolising descriptive or non-distinctive terms does not make it an important case in the sense of trade mark or procedural law” will no doubt be challenged.

 

A UK trade mark application for the trade mark Club Sail & Device in Classes 39 and 41 made by the Canaries Seaschool was successfully opposed on a variety of grounds including bad faith (Section 3(6) of the 1994 Trade Marks Act) by John and Barbara Williams, living in Tenerife in Spain. The application was said to be part of a malicious business campaign being conducted by the trade mark applicant.

There is nothing particularly surprising about the case. However, when the writer noted that the trade mark applicant was controlled by Mr. and Mrs. Williams’ son and his girlfriend, it did suggest that next Christmas at the Williamses could be livelier than usual.

 

Under UK trade mark opposition practice, if an earlier mark is registered with a disclaimer to a word or phrase, then that word or phrase is not taken into account when comparing the earlier mark and the mark applied for. This was the position in the UK opposition between Cooper Tire and Rubber v Norhead. The trade mark applicant, Norhead, had applied for the trade mark Gripster covering “agricultural tyres”. The application was opposed by Cooper on the basis of an earlier UK trade mark registration for Avon Gripster (stylised) covering “tyres for vehicle wheels”. The problem for Cooper was that their registration, which was applied for under the harsher examination regime conducted by the UK Trade Mark Office under the old, 1938 Act, was subject to a disclaimer to the exclusive use of the word “Gripster”. Further, after the opposition had been filed the English Court had confirmed in General Cigar v Partagas that, where the only similarity between two marks was a disclaimed element, the opposition should be rejected.

Faced with certain defeat in the opposition, Cooper applied to remove the disclaimer from their registration by seeking to rectify an error in the register (Section 64(1) of the 1994 Act). The hearing officer refused to allow the rectification. He found that, as all 1938 Act disclaimers were automatically transferred to the register created by the 1994 Act (under the transitional provisions of that Act), they could not have created an error on the register.

The lesson of this case is that, if you own a UK trade mark registration filed prior to 31st October 1994 (the date of introduction of the 1994 Act) and that registration contains a disclaimer, you should consider whether or not there is any commercial value in applying to register the disclaimed element under the 1994 Act. This is certainly what Cooper should have done with the trade mark Gripster. As a result of this omission, they may have to coexist with a third party registration for the identical mark covering identical goods.

The heroic efforts of the Spanish company, Panrico, to maintain a monopoly in the word Donut (and Donuts and Doughnut) on the CTM register continues. The latest case was a cancellation action brought against a CTM registration for the trade mark Dolly Donut and a device.

On the evidence provided by Panrico, the Cancellation Division accepted that Donut was “one of the most reputed trade marks in Spain in the bakery and pastry sectors” with a 99% public recognition amongst the relevant Spanish consumers. As a result, the Cancellation Division found the two marks to be confusingly similar and not only cancelled the CTM registration in respect of bakery products, but also for beverages, restaurant services and even clothing.

Not content with monopolising the word Donut in Spain, Panrico has now made a move to monopolise the word elsewhere in the EU. They have registered a figurative mark (CTM 6819064) which features the words Donut(s), Donettes, Doghnuts, Donas and Dofi, each word sharing the common, large letters DO. Since OHIM never exercises its right to insist on a disclaimer to exclusive rights in a word or phrase, and has not in this case, we can expect Panrico to rely on this figurative CTM to seek to prevent the registration, if not the use, of third party marks containing the word “donuts”, “doughnuts” or similar.