Nestle Foods Corporation, Appellant, v. Kellogg Company, Appellee, 862 F.2d 321 (Fed. Cir. 1988)

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US Court of Appeals for the Federal Circuit - 862 F.2d 321 (Fed. Cir. 1988) Oct. 21, 1988

Before MARKEY, Chief Judge, and RICH and EDWARD S. SMITH, Circuit Judges.

RICH, Circuit Judge.


This appeal is from a decision of the Trademark Trial and Appeal Board (board) dismissing Nestle Foods Corporation's opposition to Kellogg Company's registration of the mark "DINERS' CHOICE" for "tea and flour based mixes for use in making waffles, pancakes, pastry, and confectionery." We affirm.


After carefully considering the board's opinion and each of the appellant's arguments, we affirm on the basis of the board's opinion. We believe that the cumulative differences in the marks and the goods are such that confusion is not likely within the meaning of Lanham Act section 2(d) (15 U.S.C. 1052(d)).