Royal Crown Cola Co. v. Eskimo Pie Corp.

This appeal is from the decision of the Trademark Trial and Appeal Board, abstracted at 167 USPQ 293 (1970), dismissing the opposition of appellant, registrant of DIET-RITE for dietetic soft drinks and concentrates for making the same,1 to appellee’s application to register ESKIMO DIET BITE for frozen desserts, namely, ice milk, in the following stylized form:2

The critical issue lies in whether the marks are so similar as to be likely, when applied to the respective goods, to cause confusion, mistake or deception.

The board found no likelihood of confusion when “ESKIMO DIET BITE” and “DIET-RITE” are applied to the respective goods of the parties. The marks were considered in their entireties including the word “ESKIMO”. While “DIET-RITE” and “DIET-BITE” are quite close in sound they are not identical terms and are composed of well-known words with established and different meanings.

We agree with the conclusion that confusion is unlikely. The decision of the board is accordingly affirmed.

Affirmed.