BurgerQ LLCDownload PDFTrademark Trial and Appeal BoardMar 27, 2017No. 86588399 (T.T.A.B. Mar. 27, 2017) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: March 27, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re BurgerQ LLC _____ Serial No. 86588399 _____ BurgerQ LLC, pro se.1 Brian P. Callaghan, Trademark Examining Attorney, Law Office 108, Andrew Lawrence, Managing Attorney. _____ Before Taylor, Wellington, and Gorowitz, Administrative Trademark Judges. Opinion by Wellington, Administrative Trademark Judge: 1 Applicant was formerly represented by Matthew H. Swyers of The Trademark Company PLLC. Subsequent to filing Applicant’s appeal brief, Mr. Swyers filed a withdrawal of counsel on behalf of Applicant, on February 24, 2017. 16 TTABVUE. In the withdrawal, Mr. Swyers states “[o]n or about January 26, 2017 the director of the U.S. Patent and Trademark office entered an Order excluding the undersigned on his consent from practice before the Office.” The withdrawal is accepted and the correspondence address for Applicant has been updated. Serial No. 86588399 - 2 - BurgerQ LLC (“Applicant”) seeks registration on the Principal Register of the mark shown below for “restaurant” services in International Class 43: .2 The mark is described in the application as “consist[ing] of ‘BURGER’ in large letters outlined in orange and filled in with alternating orange and white diagonal lines, and a large burnt red ‘Q’ to the right of "burger" with white and burnt red distress marks appearing on a portion of the letter ‘Q.’” The colors are claimed as features of the mark. The Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the registered mark BurgerQue in standard characters for “Restaurant services featuring mainly burgers and barbeque type food” in International Class 43.3 After the Examining Attorney made the refusal final, Applicant appealed. We affirm the refusal to register. The determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be 2 Application Serial No. 86588399 was filed April 6, 2015 based on use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). 3 Registration No. 3985759 issued on June 28, 2011; Section 8 affidavit accepted; Section 15 affidavit acknowledged. Serial No. 86588399 - 3 - considered, hereinafter referred to as “du Pont factors”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the relatedness of the services. See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); 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 [or services] and differences in the marks.”).4 A. Legal Identity of the Services; Trade Channels and Classes of Consumers We first address the du Pont factor regarding the similarity or dissimilarity of the services and, in doing so, waste little time in finding that they are legally identical. Applicant’s “restaurant” services cover all sorts of restaurant types and thus encompass the Registrant’s “restaurant services featuring mainly burgers and barbeque type food.” While it is not necessarily relevant, inasmuch as the services described in the application and registration are legally identical, we note the Examining Attorney submitted evidence showing that Applicant’s restaurant does indeed feature “Burgers, BBQ, Craft Beer.”5 4 In its appeal brief, Applicant only argues the du Pont factors involving the (dis)similarity of the marks and the absence of actual confusion. Applicant otherwise sets forth general legal propositions without specifying how they are relevant to this appeal; indeed, at various points in its brief, Applicant’s counsel references “goods” when this appeal clearly involves restaurant services. See 12 TTABVUE (Applicant’s Brief). 5 See printouts from Applicant’s Facebook page attached to Office Action issued on September 29, 2015. Serial No. 86588399 - 4 - Because the services described in the application and the cited registration are legally identical, we must presume that the channels of trade and classes of purchasers are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (legally identical goods are presumed to travel in same channels of trade to same class of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the channels of trade and classes of purchasers are considered to be the same); United Global Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); American Lebanese Syrian Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011). Accordingly, the du Pont factors involving the similarity of the services and established, likely-to-continue channels of trade clearly and strongly favor a finding of a likelihood of confusion. B. Similarity of the Marks We now turn to the du Pont likelihood of confusion factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 177 USPQ at 567. In a particular case, “two marks may be found to be confusingly similar if there are sufficient similarities in terms of sound or visual appearance or connotation.” Kabushiki Kaisha Hattori Seiko v. Satellite Int'l, Ltd., 29 USPQ2d 1317, 1318 (TTAB 1991), aff'd mem., 979 F.2d 216 (Fed. Cir. 1992) (citation omitted). See also Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009) (citing Krim- Serial No. 86588399 - 5 - Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”)). Moreover, “[t]he 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). Finally, we are mindful that where, as here, the services are identical, the degree of similarity necessary to find likelihood of confusion need not be as great as where there is a recognizable disparity between the services. Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enterprises Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007); Schering- Plough HealthCare Products Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1325 (TTAB 2007). Here, we find the marks are overall very similar for several reasons. They will likely be pronounced in a very similar, if not identical, manner in view of the fact that Applicant’s mark comprises the recognizable literal elements “Burger” and the letter “Q,” and the registered mark comprises the term “Burger” followed by “Que.” Given the cited registration involves restaurant services featuring burgers and barbeque (or “BBQ”), consumers will recognize and pronounce “Que” and “Q” as equivalents. Serial No. 86588399 - 6 - In terms of their meaning or connotation, the marks share the same commercial impression because they will likely be understood by consumers, in the context of restaurant services, as being strongly suggestive or descriptive of the type of fare being served in the restaurants. Again, given the context, consumers will have little trouble determining that both marks are combinations of two featured menu items, burgers and barbeque. Applicant argues:6 [D]ue to the stylization Applicant’s dominant term is the red Q whereas Registrant’s dominant term is BURGER. Moreover, the stylized Q in Applicant’s mark can, in no way, shape, or form, be confused with the spelling QUE. Visually they are distinct and even assuming, en arguendo, Registrant decided to display its mark in similar colors as Applicant’s mark the distinctions in the spelling of Q versus QUE would be sufficient to eliminate even the most remote possibility of a likelihood of confusion. We do not find the stylization in Applicant’s mark to be so significant so as to distinguish it from, and overcome the many similarities with, registrant’s mark. Applicant seems to ignore the fact that a standard character mark, like the cited registered mark, covers all “depictions of the standard character mark regardless of font style, size, or color.” Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011). Thus, we must consider the possibility that the registered mark may be depicted in any font, size, style, or color, including one that approximates the font and colors employed in Applicant’s mark. 6 12 TTABVUE 10-11. Serial No. 86588399 - 7 - Considering the marks in their entireties, we find them very similar in appearance, pronunciation, connotation and overall commercial impressions, particularly in the context of the related goods at issue, as discussed infra. C. Lack of Actual Confusion Applicant argues that there is an absence of evidence of actual confusion. In this ex parte proceeding, in which Registrant is not a participant and cannot respond to Applicant's claims, Applicant's uncorroborated statement that there are no known instances of actual confusion is of little or no evidentiary value. See In re Majestic Distilling Co., Inc., 65 USPQ2d at 1205 (“uncorroborated statements of no known instances of actual confusion are of little evidentiary value”); see also In re Bisset- Berman Corp., 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that self- serving testimony of applicant's corporate president's unawareness of instances of actual confusion was not conclusive that actual confusion did not exist or that there was no likelihood of confusion). Moreover, the record is devoid of probative evidence relating to the extent of use of Applicant's and Registrant's marks and, thus, whether there have been meaningful opportunities for actual confusion to have occurred in the marketplace. See Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992). Therefore, this du Pont factor is neutral. Conclusion Based on the involved marks being very similar overall, used in connection with identical restaurant services that move in the same channels of trade and offered to Serial No. 86588399 - 8 - the same classes of purchasers, we find that Applicant’s mark is likely to cause confusion with the mark in the cited registration. Decision: The refusal to register Applicant’s mark is affirmed. Copy with citationCopy as parenthetical citation