APU Foods Corp.

Trademark Trial and Appeal Board

Mar 30, 2017

No. 86849293 (T.T.A.B. Mar. 30, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 30, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re APU Foods Corp.
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Serial No. 86849293
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Joshua A. Schaul of Sherman IP LLP,
for APU Foods Corp.

Justin Severson, Trademark Examining Attorney, Law Office 111,
Robert L. Lorenzo, Managing Attorney.
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Before Wellington, Goodman, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
APU Foods Corp. (“Applicant”) seeks registration on the Principal Register of the
mark RIKO in standard characters for “restaurant services featuring Peruvian
cuisine,” in International Class 43.1
The Trademark Examining Attorney has refused registration of the mark under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it so

1 Application Serial No. 86849293 was filed on December 15, 2015 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), on the basis of Applicant’s claim of first use of the mark,
and first use of the mark in commerce, at least as early as August 8, 2015.
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resembles the mark RIKO’S in standard characters shown in Registration No.
4335971, and the composite word-and-design mark depicted below

and shown in Registration No. 4291322, both registered on the Principal Register for
“restaurant services, namely, providing pizza for consumption on and off the
premises; pizza restaurants featuring home delivery” and both owned by the same
registrant,2 as to be likely, when used in connection with Applicant’s services, to cause
confusion, mistake, or deception.
After the Examining Attorney made the refusal final, Applicant timely appealed.
The case has been fully briefed. We affirm the refusal to register.
I. Prosecution History and Record on Appeal
The Examining Attorney issued a first Office Action on April 5, 2016 in which he
refused registration under Section 2(d) on the basis of the cited registrations. The
Examining Attorney made of record Internet evidence from the websites of
restaurants that he claimed served Peruvian food, pizza, and/or Peruvian pizza, or
that provided information about Peruvian style pizza. The Examining Attorney also

2 Registration No. 4291322 issued on February 19, 2013. The registrant has disclaimed
PIZZA apart from the mark as shown. Registration No. 4335971 issued on May 14, 2013.
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requested that Applicant provide information about the food provided under the
applied-for mark, including whether Applicant served pizza.
Applicant responded on July 20, 2016, and traversed the refusal to register.
Applicant made of record pages from its website, and pages from the website of the
cited registrant, which Applicant claimed showed the services actually rendered
under the cited mark.
The Examining Attorney issued a second Office Action on August 11, 2016 making
final the refusal to register. The Examining Attorney made of record additional
Internet evidence regarding Peruvian food and restaurants that offer more than one
form of cuisine, as well as a Wikipedia definition of the term “fusion cuisine” and
third-party registrations of marks for restaurant services providing multiple types of
cuisine. This appeal followed.
II. Likelihood of Confusion Analysis
Section 2(d) of the Trademark Act prohibits the registration of a mark that so
resembles a registered mark as to be likely, when used in connection with the goods
or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under § 2(d) is based upon an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). We consider each du Pont factor that is relevant and
for which there is record evidence. See, e.g., M2 Software, Inc. v. M2 Commc’ns, Inc.,
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450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA
Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015).
In every case under Section 2(d), two key considerations are the similarities
between the marks and the similarities between the goods or services. See Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)
(“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and differences in the marks”).
We turn first to the du Pont factor regarding the similarity of the marks.
A. Similarity of the Marks
This factor focuses on “‘the similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and commercial impression.’” Palm
Bay Imps. Inc. v. Veuve Cliquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). “The
proper test is not a side-by-side comparison of the marks, but instead whether the
marks are sufficiently similar in terms of their commercial impression such that
persons who encounter the marks would be likely to assume a connection between
the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted). The restaurant services
identified in the application and in the cited registration are offered to members of
the general public. “Although marks must be compared in their entireties, where they
are used on goods and services offered to the general public, emphasis must also be
placed on the recollection of the average purchaser, who normally retains a general
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rather than a specific impression of them.” In re Appetito Provisions Co., 3 USPQ2d
1553, 1554 (TTAB 1987).
We will focus our analysis on a comparison of Applicant’s mark to the standard
character mark RIKO’S shown in Registration No. 4335971, which we find to be the
more relevant of the two cited marks.3 If we find a likelihood of confusion as to the
cited standard character mark, we need not find it as to the cited composite word-
and-design mark; conversely, if we do not find a likelihood of confusion as to the
standard character mark, we would not find it as to the composite mark. See Fiserv,
Inc. v. Elec. Transaction Sys. Corp., 113 USPQ2d 1913, 1917 (TTAB 2015); In re Max
Capital Grp., Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
Applicant’s mark RIKO and the cited mark RIKO’S are virtually identical in
appearance and sound.4 “In a particular case, any one of these means of comparison
may be critical in finding the marks to be similar.” M.C.I. Foods, Inc. v. Bunte, 96
USPQ2d 1544, 1550-51 (TTAB 2010). The virtual identity of RIKO and RIKO’S in
sound is of particular importance in assessing their similarity because restaurants
are often referred to orally. In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531,
1534 (Fed. Cir. 1997); see also Appetito Provisions, 3 USPQ2d at 1554 (noting the
“propensity of persons to try restaurants based on word-of-mouth
recommendations.”).

3 As a result, we do not address Applicant’s or the Examining Attorney’s arguments directed
solely to the similarity of the cited composite mark to Applicant’s mark.
4 Most of Applicant’s arguments regarding the appearance of the marks, 4 TTABVUE 7-9,
and virtually all of its arguments regarding their sound, 4 TTABVUE 10-11, are devoted to
the cited composite mark.
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Applicant does not dispute the similarity of the marks in appearance or sound,
but instead argues that “there is no explicit rule that likelihood of confusion
automatically applies where a junior user’s mark contains part of another mark,” and
that “[e]ven the use of identical dominant words or terms does not automatically
mean that two marks are similar.” 4 TTABVUE 8. None of the cases cited by
Applicant in support of this claim, however, involved the situation here, where the
cited mark (RIKO’S) is merely the possessive form of the applied-for mark (RIKO).
With respect to connotation and commercial impression, Applicant argues that
“‘[e]ven marks that are identical in sound and/or appearance may create sufficiently
different commercial impressions when applied to the respective parties’ goods or
services so that there is no likelihood of confusion.’” 4 TTABVUE 11 (quoting Section
1207.01(b)(v) of the Trademark Manual of Examining Procedure (“TMEP”)).
Applicant argues that “RIKO has a commercial impression with Peruvian cuisine,”
while RIKO’s has “a clear and unambiguous commercial impression of [sic] related to
pizza and Italian cuisine . . .” 4 TTABVUE 12.
The cases in the TMEP section cited by Applicant do not support its argument
because they all involved identical marks that took on different meanings in the
context of the goods with which they were used.5 Applicant offers no argument or

5 In re Sears, Roebuck & Co., 2 USPQ2d 1312, 1314 (TTAB 1987) (CROSS-OVER for bras and
CROSSOVER for ladies’ sportswear differed in meaning because “CROSS-OVER” was
suggestive of the construction of bras, while “CROSSOVER” for sportswear was “likely to be
perceived by purchasers either as an entirely arbitrary designation, or as being suggestive of
sportswear which ‘crosses over’ the line between informal and more formal wear . . . or the
line between two seasons"); In re British Bulldog, Ltd., 224 USPQ 854, 856 (TTAB 1984)
(PLAYERS for men’s underwear and PLAYERS for shoes differed in meaning because
PLAYERS implied a fit, style, color, and durability suitable for outdoor activities when
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evidence that the marks RIKO and RIKO’S similarly take on different meanings
simply because they are used for restaurant services featuring different foods.6 In the
absence of any record evidence of a specific meaning of RIKO or RIKO’S, we agree
with the Examining Attorney that the presence of the apostrophe and the letter “S”
in the cited mark “has little, if any trademark significance and does not otherwise
affect the overall similarity of the marks in terms of commercial impression.” 6
TTABVUE 9. See In re Curtice-Burns, Inc., 231 USPQ 990, 992 (TTAB 1986)
(MCKENZIE’S (stylized) for processed frozen fruits and vegetables “virtually
identical in commercial impression” to MCKENZIE for canned fruits and vegetables);
In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009) (“absence of the possessive form in
applicant’s mark BINION” for hotel and bar services had “little, if any, significance
for consumers in distinguishing it from the cited mark” BINION’S ROADHOUSE for
restaurant services). The marks are very similar in connotation and commercial
impression, and virtually identical in appearance and sound, and sound is the most
pertinent means of comparison given the nature of the subject restaurant services.
This du Pont factor supports a finding of a likelihood of confusion.

applied to shoes, but “'implie[d] something else, primarily indoors in nature’” when applied
to men’s underwear); In re Sydel Lingerie Co., 197 USPQ 629, 630 (TTAB 1977) (BOTTOMS
UP for ladies’ and children’s underwear and BOTTOMS UP for men’s clothing differed in
meaning because the wording connoted the drinking phrase “Drink Up” when applied to
men’s clothing, but not when applied to ladies’ and children’s underwear).
6 The application contains the following “Miscellaneous Statement”: “‘Riko’ is a play on the
Spanish word ‘rico’ which as the link below explains is translated as ‘delicious’ or ‘tasty’ in
the culinary context; http://www.spanishdict.com/translate/rico.” Applicant did not argue on
appeal that its mark has this meaning, or cite any evidence in the record showing that this
is how its mark would be understood.
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B. Similarity of the Services
We turn now to the similarity of the services, and the related factor regarding the
similarity of the trade channels and classes of customers. Our determination of the
similarity of the services is based upon the identifications of services in the
application and in the cited registration. Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys.,
Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990). The services do not have to be identical or even competitive for confusion
to be likely because the relevant issue is not whether consumers would confuse the
services per se, but rather whether they would confuse the source of the services. In
re Davia, 110 USPQ2d 1810, 1818 (TTAB 2014). “[L]ikelihood of confusion can be
found ‘if the respective [services] are related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source.’” Coach, 101 USPQ2d at
1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
Where, as here, virtually identical marks are involved, the degree of similarity
between the goods or services that is required to support a finding of a likelihood of
confusion declines. See, e.g., In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687,
1688-89 (Fed. Cir. 1993) (“even when the goods or services are not competitive or
intrinsically related, the use of identical marks can lead to the assumption that there
is a common source”). Only a viable relationship between the services is necessary.
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See, e.g., In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001) (wine and
restaurant services).
As noted above, the Examining Attorney made of record websites for restaurants
serving multiple forms of cuisine, including several serving Peruvian food as well as
pizza and other Italian food. Pages from several of the websites are reproduced below:

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April 5, 2016 Office Action at 7-9.
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April 5, 2016 Office Action at 11-12 (emphasis supplied by Examining Attorney).

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April 5, 2016 Office Action at 14-16.
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April 5, 2016 Office Action at 19-20, 23.
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August 11, 2016 Office Action at 19.
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August 11, 2016 Office Action at 21.7

7 Two of the websites made of record by the Examining Attorney contain reviews of
restaurants located in Peru. April 5, 2016 Office Action at 25-26 (Barclay Travel Community
review of Pizzeria Dinos in Cusco, Peru); 28-29 (TripAdvisor review of Pachamama Pizzeria
in Plaza de Armas, Peru). A third website is for a United Kingdom company that provided a
recipe for “Pizza a la Hunacaina” made using what the website states is a legendary Peruvian
sauce. April 5, 2016 Office Action at 24. In the absence of evidence of the exposure of these
websites to consumers in the United States, we find that they lack probative value on the
issue of the relatedness of Peruvian cuisine and pizza in the United States.
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The Examining Attorney also made of record five use-based, third-party
registrations for marks covering restaurant services providing different types of food
and cuisine: Registration No. 3457441 covering a restaurant-cafe serving fresh
Vietnamese and Thai cuisine; Registration No. 3966150 covering restaurant services
featuring pizza, Italian and Greek foods; Registration No. 4652038 covering
restaurant services featuring Vietnamese and French fusion cuisine; Registration No.
4836597 covering restaurant services featuring Thai, sushi, and Peruvian cuisine;
and Registration No. 4950634 covering restaurant services featuring American,
Greek, and Middle Eastern foods.
With respect to the Examining Attorney’s evidence, Applicant notes that two of
the restaurants that serve both Peruvian and Italian cuisine are fine-dining
establishments that do not serve pizza, and that none of the registrations cover
Peruvian and Italian cuisine. 4 TTABVUE 14. Applicant argues generally that its
“restaurant services are exclusively Peruvian foods,” while “Registrant’s restaurant
serves primarily pizza and assorted side dishes (e.g., salad, chicken wings, dessert,
etc.) . . . Thus, there can be no mistake that Applicant’s Peruvian restaurant services
are separate and distinct from Registrant’s pizza restaurant services, such that no
likelihood of confusion exists.” 4 TTABVUE 13 (quotation omitted). We disagree.
Under the identifications of services in the application and in the cited
registration, both Applicant and the cited registrant provide sub-categories of
restaurant services. Although the identified featured food items differ, the purpose of
the services is identical—providing prepared meals to the general public. The
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identifications of services in the application and in the cited registration are
themselves sufficient to show that the services are generally related and are offered
to the same classes of customers, restaurant goers, through the same channels of
trade, restaurants.
The Internet evidence made of record by the Examining Attorney has probative
value in showing that restaurant services featuring Peruvian cuisine and restaurant
services featuring pizza are specifically related because they may emanate from the
same source under the same mark.8 See, e.g., Davia, 110 USPQ2d at 1817. The third-
party registrations also have some probative value on the relatedness of the services
because they show more generally that different cuisines may be offered together in
the same restaurant under the same mark. See, e.g., In re Aquamar, Inc., 115
USPQ2d 1122, 1126 n.5 (TTAB 2015). The record as a whole establishes far more
than merely a “viable relationship” between the particular restaurant services
identified in the application and in the cited registration, as it shows that the
“circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source” when offered under
virtually identical marks. Coach, 101 USPQ2d at 1722. This du Pont factor supports
a finding of a likelihood of confusion.

8 Applicant argues that “[c]ommon sense seems to suggest that customers of Peruvian cuisine
offered under the RIKO mark are not the same customers that are seeking out pizza and
wings under Registrant’s RIKO’S PIZZA and RIKO’S marks.” 4 TTABVUE 14. The Internet
and registration evidence of record corroborates what we believe common sense actually
suggests—consumers of Peruvian cuisine and pizza lovers are not discrete segments of the
general public because most people enjoy a variety of different cuisines.
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Conclusion
All of the du Pont factors for which there is record evidence support a finding of a
likelihood of confusion with respect to the mark shown in Registration No. 4335971.
The marks have similar connotations and commercial impressions, and are virtually
identical in sound, the key means of comparison with respect to marks for restaurant
services, the services are closely related, and the channels of trade and classes of
customers overlap. We find that confusion as to the source or sponsorship of
Applicant’s restaurant services is likely.
Decision: The refusal to register is affirmed.