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Bottom line: The Board found “THE KISS / sweets” not similar to “sweets”.

The applicant filed a trademark application for “THE KISS / sweets” as shown below designating goods in Classes 14, 26 and 28, including ornaments(jewelry), key fobs, clocks and watches, hair ornaments.  The examiner cited two earlier registrations and refused the application on the ground of confusing similarity: “KISS (standard character)” in Classes 7, 8, 9, 10, 11, 16 and 21, and “sweets” in Classes 8, 9, 16, 18, 20, 21, 24, 25, 26 and 27.

<Applied-for mark>

The applicant overcame the citation “KISS” by deleting the conflicting goods.  The remaining goods of the applied-for mark are partially identical with those of the other citation “sweets”, and the question is the similarity of the marks.

The Board observed the applied-for mark and found as follows:

- “THE KISS” is presented in serif typeface and uppercase, whereas “sweets” is presented in cursive script and lowercase.  “THE KISS” is larger than “sweets” and　gives a strong and dominant impression.

- Besides, “THE KISS” consists of a familiar English word “KISS” and a definite article “THE” which is often used to emphasize the subsequent word.  On the other hand, “sweets” is a familiar word used daily.  In view that the goods at issue are daily-used products, the lower part “sweets” does not have a strong function as a source identifier.

- Therefore, “THE KISS” is dominant to “sweets” as a source identifier, and “sweets” alone will not be extracted from the applied-for mark in trading.

- In conclusion, the Examiner’s finding is not appropriate that the sound of sweets is derived from the applied-for mark and that the marks are similar in sound.

And so the Board reversed the refusal, and granted registration of “THE KISS / sweets”.