The TTAB has affirmed that the mark SMALL WINS for “sweets and candies, namely, gummies and soft candies,” is likely to cause confusion with the registered mark BIG WIN for “candy.” In re Sugar Free Specialties, LLC, Ser. No. 90706411 (TTAB Dec. 7, 2022).

“[W]hile the terms WINS and WIN are highly similar, the terms SMALL and BIG appear and sound different.” Nonetheless, the TTAB found the marks have “the same format, structure, and syntax.” See Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012). The TTAB concluded that “overall the two marks have similar cadences and intonations,” and “are more similar than they are different in appearance and sound” when viewed in their entireties.

The TTAB also found that WINS and WIN are the dominant elements in the respective marks. Even though SMALL and BIG are the first words in the marks, they are “more common and less distinctive terms.”

We further find that Applicant's LITTLE [sic] WINS candies could be thought of by consumers as a line extension of Registrant's BIG WIN candies, offered by the same company. Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, at *7 (TTAB 2019) (“[Applicant's mark] … looks, sounds, and conveys the impression of being a line extension of … [Registrant's mark].”)

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SMALL and BIG, when combined to form a part of each of the marks SMALL WINS and BIG WIN, even though are antonyms, are insufficient to differentiate the marks in meaning and overall commercial impression.

Thus, the TTAB affirmed the Section 2(d) refusal to register the SMALL WINS mark.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.