Brats Berlin, Inc.

Trademark Trial and Appeal Board

Dec 1, 2017

No. 87055289 (T.T.A.B. Dec. 1, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: December 1, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Brats Berlin, Inc.
_____

Serial No. 87055289
_____

Erik M. Pelton of Erik M. Pelton & Associates PLLC,
for Brats Berlin, Inc.
Samuel R. Paquin, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Cataldo, Mermelstein and Shaw,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
Brats Berlin, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark CREPES BONAPARTE (in standard characters, CREPES disclaimed) for “food
truck services; mobile catering services” in International Class 43.1
The Trademark Examining Attorney issued a refusal of registration of Applicant’s
mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of

1 Application Serial No. 87055289 was filed on May 31, 2016, based upon Applicant’s
assertion of May 2008 as a date of first use of the mark anywhere and in commerce under
Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a).
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likelihood of confusion with Registration No. 4670082, issued on the Principal
Register of the mark displayed below (CAFÉ disclaimed) for “restaurant services” in
International Class 43.2

When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are relevant to the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See
also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). We discuss the du Pont factors for which Applicant and the Examining
Attorney have presented evidence and arguments.
Strength of the Mark in the Cited Registration
Applicant asserts that the similarities and differences between the marks at issue
must be viewed in light of the surname significance of the term BONAPARTE
common to both. Specifically, “Applicant argues that surnames, regardless of what

2 Issued on January 13, 2015. “Color is not claimed as a feature of the mark.” “The mark
consists of the words ‘CAFÉ BONAPARTE’ above which is the letter ‘B’ partially encircled
within a wreath.”
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they refer to, are weak indicators of source and that the cited mark is entitled to only
a limited scope of trademark protection because it consists primarily of a surname.”3
In support of its contention, Applicant made of record with its October 11, 2016
response to the Examining Attorney’s first Office Action a printout of surnames from
the 2016 U.S. Census showing over 2,000 individuals with the surname “Bonaparte”.4
We agree that the term BONAPARTE has surname significance; however, a term
with surname significance may not be primarily merely a surname if that term also
identifies a historical place or person. See Lucien Piccard Watch Corp. v. Since 1868
Crescent Corp., 314 F. Supp. 329, 331, 165 USPQ 459, 461 (S.D.N.Y. 1970) (DA
VINCI); In re Pyro-Spectaculars Inc., 63 USPQ2d 2022, 2024 (TTAB 2002) (SOUSA);
Michael S. Sachs Inc. v. Cordon Art B.V., 56 USPQ2d 1132, 1136 (TTAB 2000) (“M.C.
ESCHER names a specific individual of considerable renown, and [we] are persuaded
that the mark “M.C. ESCHER” is not primarily merely a surname”). Cf., for example,
In re Beds & Bars Ltd., 122 USPQ2d 1546, 1551-52 (TTAB 2017) (“[A]lthough John
and Jim Belushi are widely known to Americans, the evidence does not show that
they qualify as historical figures closely associated with Applicant's services”). We
hereby take judicial notice of the fact that the famed general and emperor of France,

3 7 TTABVUE 10.
Applicant adds that it “does not mean to argue that either its mark or the cited mark have
primarily surname significance.” Id. The issue of whether Applicant’s mark is primarily
merely a surname under Trademark Act Section 2(e)(4), 15 U.S.C. § 1052(e)(4) is not before
us.
4 At .pdf 51-3.
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Napoleon I, was named Napoleon Bonaparte.5 We further note that on this record
there is no evidence BONAPARTE has any other meaning or significance relevant to
Applicant’s services or those of the cited registration. Thus, the term BONAPARTE
denotes both a surname and famous historical figure, and while not primarily merely
a surname, is conceptually a slightly weaker source indicator than a fanciful term.
Applicant further made of record screenshots from the internet websites of three
third parties using the terms CAFÉ BONAPARTE and BONAPARTE’S RETREAT in
connection with restaurants, and BONAPARTE BREADS in connection with a
bakery.6 Of the three third-party uses introduced into the record by Applicant, we
observe that only one of them comprises the mark CAFÉ BONAPARTE in the
cited registration. BONAPARTE’S RETREAT includes the additional term
RETREAT that creates visual, aural and connotative dissimilarities from the
involved marks. BONAPARTE BREAD includes the term BREAD that clearly
connotes the bakery services identified thereby. While Applicant has not presented
specific evidence concerning the extent and impact of these uses, it nevertheless
presented “evidence of these marks being used in internet commerce” for the parties’
services and related services. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co.

5 Dictionary.com, based on the Random House Dictionary (2017).
The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have regular
fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014);
Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re
Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
6 At .pdf 14-7, 54-8.
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KGAA v. New Millenium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed.
Cir. 2015); see also Rocket Trademarks Pty Ltd. v. Phard S.p.A., 98 USPQ2d 1066,
1072 (TTAB 2011) (internet printouts “on their face, show that the public may have
been exposed to those internet websites and therefore may be aware of the
advertisements contained therein”). However, unlike cases in which voluminous
evidence of third-party use and other evidence in the record was found to be “powerful
on its face” inasmuch as “a considerable number of third parties use [of] similar marks
was shown,” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d
1671, 1674 (Fed. Cir. 2015), Applicant has presented only three such uses, well short
of the volume of evidence found convincing in Jack Wolfskin and Juice Generation.
The totality of the evidence presented by Applicant fails to show that the term
BONAPARTE as it appears in the marks is significantly weak or diluted in
connection with the involved services. Therefore, while we can agree based upon the
surname and historical name evidence of record and limited third-party uses that the
term BONAPARTE in the cited mark may be afforded a slightly narrower scope of
protection than that afforded a fanciful term, the evidence does not show that it
should be afforded such a narrow scope of protection that it would allow registration
of Applicant’s mark.
Similarities and Dissimilarities of the Marks
We turn to a comparison of Applicant’s CREPES BONAPARTE mark in standard
characters and the
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mark in the cited registration for similarities and dissimilarities in appearance,
sound, connotation, and commercial impression. Stone Lion Capital Partners, LP v.
Lion Capital LLP, 110 USPQ2d at 1160 (quoting Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689,
1691 (Fed. Cir. 2005)). “Similarity in any one of these elements may be sufficient to
find the marks confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB
2014) (citing In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581, 1586 (TTAB 2007)).
The similarity or dissimilarity of the marks is determined based on the marks in their
entireties, and the analysis cannot be predicated on dissecting the marks into their
various components; that is, the decision must be based on the entire marks, not just
part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ
233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and
considered piecemeal; rather, it must be considered as a whole in determining
likelihood of confusion”). While we have placed the marks in close proximity to one
another for comparison purposes, consumers may not necessarily encounter the
marks in such proximity and must rely upon their recollections thereof. In re Mucky
Duck Mustard Co., 6 USPQ2d 1467 (TTAB 1988).
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Applicant argues that the marks at issue “use the shared name BONAPARTE in
different manners and contexts, resulting in different sounds, appearances, meanings
and overall impressions.”7 In particular, Applicant argues that the marks
rely on widely recognized naming conventions within the food and
hospitality industry. The cited mark relies on a widely used [TERM FOR
RESTAURANT] + [NAME] convention. For example, Applicant
submitted evidence of restaurants with names such as KAFE
LEOPOLD, numerous CAFÉ MOZARTs, and a second CAFÉ
BONAPARTE, demonstrating not only this naming convention, but the
coexistence of these restaurants in the market. See Office Action of Oct.
11, 2016, Exhibits A, B, D, and E. Applicant’s mark, on the other hand,
uses a naming convention common in naming a specific food item, the
[FOOD ITEM] + [NAME] convention commonly used in naming
particular styles of food preparation. Applicant submitted a list of such
dishes, including examples such as “eggs benedict,” said to be named
after either banker Lemuel Benedict or Commodore E.C. Benedict;
“fettucine alfredo,” named for chef Alfredo Di Lelio; “bananas foster,”
named after Richard Foster; “pizza margherita,” named for Queen
Margherita of Savoy; “peach melba,” named for singer Dame Nellie
Melba; “beef wellington,” named for Arthur Wellesley, 1st Duke of
Wellington; and “chicken (or turkey) tetrazzini,” named for Italian opera
star Luisa Tetrazzini.8

Applicant concludes that

Because of these familiar naming conventions, consumers are likely to
perceive each mark in their entirety as a unitary whole, rather than
focusing on one particular term or another. Consumers encountering
Applicant’s mark and the cited mark are likely to react differently to
each mark and the commercial impressions that the marks convey. This
is compounded by the weakness of the name BONAPARTE as a source
identifier. Consumers are likely to recognize the source-identifying
significance of the entire marks without assuming that the term
BONAPARTE alone identifies a particular source.9

7 7 TTABVUE 12.
8 Id. at 14.
9 Id. at 14-5.
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In support of this contention, Applicant introduced into the record with its October
11, 2016 response to the Examining Attorney’s first Office Action an article from the
open source internet encyclopedia Wikipedia.org containing a list of foods named
after people and webpages from third-party internet websites for two restaurants
coexisting with the names CAFÉ MOZART as well as one named MOZART CAFÉ.10
We agree with Applicant that the involved marks must be viewed in their entireties
when considering their similarity or dissimilarity. In re Nat’l Data Corp., 224 USPQ
at 751. However, it is a well-established principle that, in articulating reasons for
reaching a conclusion on the issue of likelihood of confusion, there is nothing improper
in stating that, for rational reasons, more or less weight has been given to a particular
feature of a mark, provided the ultimate conclusion rests on a consideration of the
marks in their entireties. Id. In this case, Applicant’s CREPES BONAPARTE mark
is similar to the registered mark inasmuch as both feature the term
BONAPARTE as the most prominent feature thereof. The disclaimed term CREPES
in Applicant’s mark is, at best, merely descriptive of food truck services and mobile
catering services without limitation as to cuisine and thus are presumed to feature
crepes, and indeed, do feature crepes as indicated in Applicant’s specimen of record,
reproduced in part below.

10 At .pdf 30-50, 18-29.
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The registered mark, consists of the term BONAPARTE, the
disclaimed term CAFÉ, which is a generic term for a type of restaurant, the letter “B”
and the design of a wreath. The letter “B” appears to reinforce and draw additional
attention to the term BONAPARTE. The wreath design, though substantial in size,
is used like a carrier or frame for the letter “B,” see In re Dixie Rests. Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997) (“the design is an ordinary geometric
shape that serves as a background for the word mark”); In re Kysela Pere et Fils Ltd.,
98 USPQ2d 1261, 1267 (TTAB 2011) (“the oval designs in the marks are merely
background or ‘carrier’ elements, and do not make a strong commercial impression”),
and is less likely to be relied upon by consumers of registrant’s services than the more
distinctive wording BONAPARTE. It is settled that where, as here, a mark is
comprised of both words and a design, the words are usually accorded greater weight,
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in part because consumers are likely to remember and use the words to request the
services. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012)
(“the verbal portion of a word and design mark likely will be the dominant portion”);
In re Appetito Provisions Co. Inc., 3 USPQ2d 1553, 1554 (TTAB 1987) (holding that
“if one of the marks comprises both a word and a design, then the word is normally
accorded greater weight because it would be used by purchasers to request the goods
or services” and “because applicant’s mark shares with registrant’s mark that
element responsible for creating its overall commercial impression, the marks are
confusingly similar”).
Thus, even given its significance as indicating a surname and historical personage,
BONAPARTE is the most distinctive portion of the marks at issue, and forms the
dominant impression of each mark when it is considered as a whole. Applicant’s
CREPES BONAPARTE mark certainly connotes a French-theme food truck or
catering service featuring crepes, and the registered mark connotes a
similarly French-themed café. Both suggest French cuisine. Even if we accept
Applicant’s argument that the marks follow familiar naming conventions in the food
and food service industries – consisting of a term for a food item plus a name versus
a term for a restaurant plus a name – we observe that these are similar naming
conventions. Both utilize a descriptive or generic term for a type of food or restaurant
followed by a given name, surname, or name of a historical individual. The marks
thus are similarly constructed, leading them to be more, rather than less, similar. In
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addition, there is nothing to suggest that consumers encountering Applicant’s mark
and the mark in the cited registration will perceive the term BONAPARTE as having
a different meaning applied to one mark as opposed to the other.
Applicant also introduced into the record with its March 7, 2017 request for
reconsideration copies of assertedly similar third-party registrations for marks, none
of which contain the term BONAPARTE, for restaurant and related food services.11
The following chart displaying some of these marks, presented by Applicant in its
request for reconsideration and also its brief, is illustrative:12

11 At .pdf 15-93.
12 At .pdf 10; 7 TTABVUE 19-20.
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However, as discussed above, Applicant introduced into the record internet
evidence of only a single example of a third party using CAFÉ BONAPARTE in
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connection with a restaurant, one third-party use of BONAPARTE’S RETREAT in
connection with a restaurant, and BONAPARTE BREADS in connection with a
bakery. In light of this very limited use, we find that the registered mark does not
exist in a crowded field of the same or similar marks, and does not support a finding
that the cited mark should receive a narrow scope of protection.
Furthermore, Applicant’s evidence of registration of pairs or groups of food-related
marks that are not related to the marks at issue does not compel a finding that the
registered mark is weak or subject to a limited scope of protection.
Applicant cites to no authority for its apparent position that we should extrapolate
from this evidence that the marks at issue herein should also be allowed to coexist on
the register. It is well-settled that we simply are not bound by the decisions of
examining attorneys. The Board must make its own findings of fact, and that duty
may not be delegated by adopting the conclusions reached by an examining attorney.
In re Sunmarks, Inc., 32 USPQ2d 1470, 1472 (TTAB 1994); In re BankAmerica Corp.,
231 USPQ 873, 876 (TTAB 1986). “It has been said many times that each case must
be decided on its own facts.” In re Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB
2010) (internal citation omitted). This is particularly the case where, as here, the
marks in the registrations relied upon are dissimilar from Applicant’s mark and the
cited mark.
Longstanding precedent holds that “the existence of confusingly similar marks
already on the register will not aid an applicant to register another confusingly
Serial No. 87055289
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similar mark.” Lilly Pulitzer, Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406,
407 (CCPA 1967). The pairs of registrations offered by Applicant in this case are for
entirely different marks than those actually at issue, and thus have less relevance to
our decision than the third-party registrations of similar marks offered in Lilly
Pulitzer. Whatever other marks may coexist on the trademark register (or more
importantly, in the marketplace) the question before us is whether Applicant’s mark
so resembles Registrant’s mark as to be likely to cause confusion. Applicant’s
registration pairs do not significantly aid our analysis.
In coming to our determination on the similarity of the marks, we again emphasize
that the applicable test is not whether the marks can be distinguished when subjected
to a side-by-side comparison. Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735,
1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5, 1992). Rather,
the proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. Winnebago Indus., Inc. v. Oliver &
Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co.,
190 USPQ 106, 108 (TTAB 1975). While we fully recognize their differences, we find
that the marks CREPES BONAPARTE and are similar in appearance
and sound, and similar in connotation, respectively suggesting French cuisine
featuring crepes or a French-themed café. Considered as a whole, the marks are more
similar than dissimilar “in their entireties as to appearance, sound, connotation and
Serial No. 87055289
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commercial impression.” Palm Bay, 73 USPQ2d at 1691 (quoting du Pont, 177 USPQ
at 567).
Relatedness of the Services, Trade Channels and Classes of Purchasers
Next, we turn to the du Pont factors involving the similarity or dissimilarity of
Applicant’s services and the services in the cited registration, their channels of trade
and purchasers. It is settled that in making our determination, we must look to the
services identified in the application vis-à-vis those recited in the cited registration.
See Stone Lion, 110 USPQ2d at 1161; Octocom Sys., Inc. v. Houston Computers Servs.,
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Integrated
Embedded, 120 USPQ2d 1504, 1514 (TTAB 2016); In re Giovanni Food Co., 97
USPQ2d 1990, 1991 (TTAB 2011).
It is not necessary that the respective services be competitive, or even that they
move in the same channels of trade to support a holding of likelihood of confusion. It
is sufficient that the services are related in some manner, or that the conditions and
activities surrounding the marketing of the services are such that they would or could
be encountered by the same persons under circumstances that could give rise to the
mistaken belief that they originate from the same producer. Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 1369, 101 USPQ2d 1713, 1722 (Fed. Cir.
2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007). See
also On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed.
Cir. 2000); In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984). The issue here is not whether purchasers would confuse the services,
Serial No. 87055289
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but rather whether there is a likelihood of confusion as to the source of these services.
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223
USPQ 830 (TTAB 1984).
In support of his contention that the services identified in the involved application
and the cited registration are related, the Examining Attorney introduced into the
record with his September 13, 2106 first Office Action copies of screenshots from the
internet websites of seven third parties that offer catering, food trucks, or both
services in addition to restaurant services.13 The following examples are illustrative.

13 At .pdf 10-21.
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Serial No. 87055289
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Serial No. 87055289
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The Examining Attorney further introduced into the record with his November 1,
2016 final Office Action screenshots from an additional eleven third parties providing
restaurant, catering and food truck services.14 The following example is illustrative.

14 At .pfd 5-22.
Serial No. 87055289
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In addition, the Examining Attorney introduced into the record with his March 15,
2017 denial of Applicant’s request for reconsideration copies of eighteen use-based,
third-party registrations for marks identifying both food truck and catering services
as well as restaurant services. The following examples are illustrative:15

15 At .pdf 3-40.
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Registration No. 4774262 for the mark THE CHICKEN & RICE GUYS for
“providing food and beverages from a mobile food truck; restaurant and
catering services.”

Registration No. 5016156 for the mark FAMOUS HOMEMADE HOT SALAMI
SINCE 1918 GIOIA’S DELI for “restaurant services; catering services; mobile
food truck services.”

Registration No. 5030243 for the mark BANAN and design for “providing food
and beverages from a mobile food truck; restaurant and catering services.”

As a general proposition, although use-based, third-party registrations alone are not
evidence that the marks shown therein are in use or that the public is familiar with
them, they nonetheless may have some probative value to the extent they may serve
to suggest that the goods are of a kind that emanate from a single source. See In re
Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck, 6 USPQ2d at
1470 n.6.
Applicant argues that while it “acknowledges that both Applicant and registrant
use their marks in connection with food service, the services offered in connection
with each mark are not identical.”16 We agree. However, the evidence discussed above
clearly shows that Applicant’s food truck and mobile catering services may emanate
from the same sources as the restaurant services identified in the cited registration
and be identified under the same marks. In addition, and as noted above, Applicant’s
services need not be identical, or even competitive, with the services in the cited
registration in order to support a finding of likelihood of confusion.

16 7 TTABVUE 22.
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Applicant further argues it “submitted evidence that, out of more than 50,000
registrations on the Principal Register for restaurants, only 36 registrations
identified both ‘restaurant’ and ‘food truck’ services—less than one tenth of one
percent—several of which are redundant as to owner.”17 Applicant goes on to argue
that, as a result, “the relationship between food trucks and restaurants is not so
obvious that consumers would believe that food truck services and restaurant
services originate from the same source without something more.” Applicant cites In
re St. Helena Hosp., 113 USPQ2d 1082 (Fed. Cir. 2014) in support of its position.
We find Applicant’s reliance upon St. Helena Hosp. to be misplaced. First, unlike
the facts of St. Helena Hosp., which involved the relatedness of health care services
in the field of weight and lifestyle rendered in a residential hospital program versus
printed materials in the field of physical activity and fitness promotion services,
Applicant and the owner of the cited registration both provide food services.
Applicant’s food services are rendered through a food truck and mobile catering and
registrant’s services are provided at a restaurant. As a result, we do not find the facial
relatedness of the services to be so obscure to be “not evident, well-known or generally
recognized.” In re St. Helena Hosp., 113 USPQ2d at 1087. Nor is this a case in which
restaurant services have been cited as a bar to registration of food items, or vice versa.
See Jacobs v. Int’l Multifoods Corp., 668 F.2d 1234, 212 USPQ 641, 642 (CCPA 1982);
In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1064 (Fed. Cir. 2003).
Second, the number of registrations reciting both restaurant and food truck services

17 Id.
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compared to the overall number of extant registrations does not compel or even
suggest an inference that the relatedness between food trucks and mobile catering
services and restaurants is somehow obscure or remote. The mere distinction that
Applicant’s food services are mobile in nature and provided in different locations
versus stationary restaurant services does not obviate their relatedness, as reflected
by the evidence of third-party use and registration of a single mark to identify both
types of food services across a variety of cuisines and ethnic food types. As we noted
in connection with a similar argument based on third-party registrations, i.e., that
there were many third-party registrations for the goods of the applicant that did not
include the goods identified in the cited registration, and vice versa:
There is no requirement for goods to be found related that all or even a
majority of the sources of one product must also be sources of the other
product. Therefore, evidence showing only that the source of one product
may not be the source of another product does not aid applicant in its
attempt to rebut the evidence of the examining attorney.

In re G.B.I. Tile and Stone Inc., 92 USPQ2d 1366, 1370 (TTAB 2009).
As discussed above, the Examining Attorney introduced into the record screenshots
from eighteen internet websites, promoting and offering restaurant, food truck and
catering services on the same webpages. While it is not necessary that the respective
services move in the same channels of trade to support a holding of likelihood of
confusion, this evidence shows that the services at issue are offered and marketed in
at least one common trade channel to the same consumers. We further observe that
in the absence of any recited limitations in the respective identifications, the services
would be encountered in the usual channels of trade therefor and available to the
Serial No. 87055289
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usual classes of consumers, which in this case would include the full range of
consumers for the products of food trucks, mobile catering services, and restaurants.
In addition, there is nothing inherent in restaurant, food truck or catering services
that suggests that they will be marketed to a sophisticated clientele, but rather are
available to the general public.
Based upon the evidence of record, we find that Applicant’s services are related
to the services identified in the cited registration, and may be encountered in the
same channels of trade.
Summary
We have considered all of the arguments and evidence of record, including those not
specifically discussed herein, and all relevant du Pont factors. In view of the
similarity of Applicant’s CREPES BONAPARTE mark and the registered mark; the
evidence of the relatedness of Applicant’s services and the services in the cited
registration, their trade channels and classes of consumers, we find that Applicant’s
mark so closely resembles the registered mark as to be likely to cause confusion,
mistake or deception as to the source of Applicant’s services. Applicant’s evidence
regarding the asserted weakness of the mark in the cited registration is not sufficient
to mitigate in favor of a finding that confusion is unlikely.
Decision: The refusal to register Applicant’s mark CREPES BONAPARTE is
affirmed.