In a continuing battle over rights in a "two chicken" design, the Board dismissed opposer's claims of nonuse and abandonment of the mark shown on the right below, and likewise rejected opposer's issue preclusion and claim preclusion arguments. It then sustained opposer's claim of likelihood of confusion between the two marks shown below: the applied-for mark on the left, for "restaurant franchising," and opposer's common law mark on the right, for restaurant services and consulting service for new restaurant owners. Original Maryland Fried Chicken, LLC v. MTM Enterprises Group, LLC, Opposition No. 91217560 (May 25, 2017) [not precedential] (Opinion by Judge Bergsman).

Nonuse and abandonment: Opposer moved to amend its notice of opposition to add claims or nonuse and abandonment, asserting that these issues had been tried by consent. The Board disagreed because applicant had objected to the admission of the evidence that opposer sought to rely on.

Preclusion: Applicant pointed to a prior TTAB decision [TTABlogged here] as being dispositive here, but the Board quickly dismissed that contention because the services of the applicant were not the same in the two cases: in the prior case, applicant sought to register a "two chicken" mark for "restaurant services," not franchising services. Thus the current opposition is not based on the same set of transactional facts as the first, and furthermore none of the issues in this proceeding were litigated in the first proceeding.

Likelihood of Confusion: The Board found that the words "Original Maryland Fried Chicken" in opposer's mark are at least highly suggestive of opposer's services. The chicken designs "are not so inconspicuous or indistinct that they may be overlooked."

Both marks feature two chickens: a large chicken and a smaller chicken located at the lower left-hand side of the larger chicken as if it were a hen and her chick. In both marks, the larger chicken is on the right and the smaller chicken is on the left. The larger chickens both feature a comb tilted to the right and a tail that comes to a point. The face of the larger chickens and the chicks comprise three dots although the beak of Applicant’s larger chicken is somewhat more pronounced.

The Board observed once again that the proper test for likelihood of confusion is not a side-by-side comparison of the marks. Here, when the marks are viewed at separate times, it is the highly stylized cartoon chickens that will be remembered. The wording in opposer's mark adds little or nothing to the commercial impression of opposer's mark.

As to the services, the Board found them to be identical in part because both include training, securing a location, and construction for restaurant owners. These overlapping services presumably will travel through the same channels of trade to the same classes of consumers. [Is this presumption applicable when opposer does not own a registration? Shouldn't the Board be looking at the actual channels of trade of opposer and the actual classes of customers of opposer to see whether they fall in the "normal channels" and "usual classes of consumers" that applicant's services presumably encounter? - ed.].

And so the Board sustained the Section 2(d) claim.