MR. PEANUT DESIGN for nuts and nut products: $350 million in sales, $10 million in advertising over 10 years
How later courts described this case
- MR. PEANUT DESIGN for nuts and nut products: $350 million in sales, $10 million in advertising over 10 years
- “all doubt as to whether confusion, mistake, or deception is likely is to be resolved against the new-comer”
Written by the judges who cited it.
The opinion
MARTIN, Judge
(concurring).
I concur in the result of Judge RICH’S opinion only because a doubt as to purchaser confusion is aroused in my mind when I contemplate the concurrent use of opposer’s and applicant’s marks on their respective goods. This is so not because of the individual characteristics of the two humanized peanuts at issue which characteristics are very different, but because of the trademark significance of the concept itself which has been established by opposer’s long exclusive (although interrupted as discussed below) usage (37 years) of a humanized male two-kernel unshelled peanut to identify its goods. Now we find, after this length of time, applicant is using the same concept for the same purpose.
Insofar as my usage of the word “exclusive” is concerned, even though there is some indication in the record that opposer has had a constant problem of endeavoring to protect its trademark which implies that others have tried to use the symbol, applicant has not brought to our attention a scintilla of evidence that anyone else besides itself has used for any appreciable time, or is using a humanized male two-kernel unshelled peanut to identify peanuts or any other nuts or nut products. We find only an unsupported statement by applicant which reads:
“The representation of a peanut * * * has been used and registered by others in different forms.”
Even in this self-serving statement, applicant does not refer to the symbol as a humanized peanut with characteristics of opposer’s symbol, but says “representation of a peanut,” which could mean anything from a picture of a peanut to one used as the body of an elephant.
One case which should be considered at this time is Planters Nut & Chocolate Co. v. Sessions Company, Inc., 128 USPQ 449 . That was an opposition proceedings involving, as a trademark for peanut butter, a rather odd looking symbol which, I presume, is supposed to be a humanized peanut. There the board held in favor of applicant. Whether that symbol was ever registered or actually used for an appreciable time, or is now being used, is not revealed.
In that case, however, of the many third party registrations which the applicant introduced into the record, only two consisted of humanized peanuts, one for peanut butter and the other for ice cream. How long these were used or whether they are being used now is unknown to me.
All in all, even though it is apparent that there are some incidents of registration of humanized peanuts, there is nothing that has been brought to my attention which proves that opposer has not enjoyed a long exclusive (interrupted at times) usagé of a humanized male two-kernel unshelled peanut to identify its goods, i. e. nuts, nut confections, and nut products.