CFA Properties, Inc.

Trademark Trial and Appeal Board

Aug 22, 2006

No. 78397347 (T.T.A.B. Aug. 22, 2006)

Mailed:
Aug. 22, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re CFA Properties, Inc.
________

Serial No. 78397347
_______

Michael D. Hobbs, Jr. of Troutman Sanders LLP for CFA
Properties, Inc.

Carol Spils, Trademark Examining Attorney, Law Office 104
(Chris Doninger, Managing Attorney).
_______

Before Quinn, Grendel and Kuhlke, Administrative Trademark
Judges.

Opinion by Grendel, Administrative Trademark Judge:

Applicant seeks registration on the Principal Register
of the mark TRIM TRIO (in standard character form) for
services recited in the application as “restaurant
services.”1

1 Serial No. 78397347, filed April 6, 2004. The application was
originally filed based on intent-to-use under Trademark Act
Section 1(b), 15 U.S.C. §1051(b). Applicant subsequently filed
an Amendment to Allege Use, alleging May 31, 2004 as the date of
first use of the mark anywhere and the date of first use of the
mark in commerce.
THIS OPINION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 78397347
2
At issue in this appeal is the Trademark Examining
Attorney’s final refusal to register applicant’s mark on
the ground that the mark, as applied to applicant’s
services, so resembles the mark TRIO, previously registered
on the Principal Register (in standard character form) for
“restaurant services,”2 as to be likely to cause confusion,
to cause mistake, or to deceive. Trademark Act Section
2(d), 15 U.S.C. §1052(d).
The appeal is fully briefed. No oral hearing was
requested. We affirm the refusal to register.
Our likelihood of confusion determination under
Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the
likelihood of confusion issue (the du Pont factors). See
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also Palm Bay Imports, Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003); In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531 (Fed. Cir. 1997).

2 Registration No. 2657462, issued December 10, 2002.

Ser. No. 78397347
3
The second du Pont factor requires us to determine
whether applicant’s services and the registrant’s services
are similar or dissimilar. The third du Pont factor
requires us to determine whether the trade channels for
applicant’s and registrant’s respective services are
similar or dissimilar. We find that applicant’s services
as recited in the application, “restaurant services,” are
legally identical to the “restaurant services” recited in
the cited registration. Applicant’s arguments and evidence
purporting to show that its restaurant services, as
actually rendered, are dissimilar to the restaurant
services actually rendered by the registrant, are
unavailing. Because there is no limitation in either
applicant’s or registrant’s recitation of services, we must
presume that both applicant and registrant render all types
of, and indeed identical types of, “restaurant services.”
We further must presume that these identical services are
rendered in identical trade channels and to identical
classes of purchasers, regardless of what the evidence
might show to be applicant’s and registrant’s actual trade
channels and classes of purchasers. See Canadian Imperial
Bank of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1
USPQ2d 1813 (Fed. Cir. 1987); In re Elbaum, 211 USPQ 639
(TTAB 1981). For these reasons, we find that the second
Ser. No. 78397347
4
and third du Pont factors weigh in favor of a finding of
likelihood of confusion.
We also find, under the fourth du Pont factor
(conditions of purchase), that the broadly-recited
“restaurant services” identified in applicant’s application
and in the cited registration must be deemed to include
inexpensive restaurant services which are or could be
purchased by ordinary consumers on impulse, without a great
deal of care and sophistication. The fourth du Pont factor
accordingly weighs in favor of a finding of likelihood of
confusion.
Under the sixth du Pont factor (number and nature of
similar marks in use on similar services), applicant has
submitted Internet evidence showing the existence of
several other restaurants around the United States which
are called TRIO, or TRIOS.3 However, in the absence of
evidence showing the extent of use of these other marks, we
find that the sixth du Pont factor weighs only slightly in
applicant’s favor in our likelihood of confusion analysis.
See, e.g., Carl Karcher Enterprises Inc. v. Stars
Restaurants Corp., 35 USPQ2d 1125, 1131 (TTAB 1995).

3 The third-party registration evidence submitted by applicant is
not probative evidence under the sixth du Pont factor. See Olde
Tyme Foods Inc. v. Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542
(Fed. Cir. 1992).

Ser. No. 78397347
5
We turn finally to the first du Pont factor, which
requires us to determine whether applicant’s mark TRIM TRIO
is similar or dissimilar to the cited registered mark TRIO,
when the marks are compared in their entireties in terms of
appearance, sound, connotation and overall commercial
impression. See In re Palm Bay Imports, Inc., supra. The
test, under the first du Pont factor, is not whether the
marks can be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently
similar in terms of their overall commercial impression
that confusion as to the source of the goods offered under
the respective marks is likely to result. The focus is on
the recollection of the average purchaser, who normally
retains a general rather than a specific impression of
trademarks. See Sealed Air Corp. v. Scott Paper Co., 190
USPQ 106 (TTAB 1975). Furthermore, although the marks at
issue must be considered in their entireties, it is well-
settled that one feature of a mark may be more significant
than another, and it is not improper to give more weight to
this dominant feature in determining the commercial
impression created by the mark. See In re Chatam
International Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed.
Cir. 2004); In re National Data Corp., 753 F.2d 1056, 224
USPQ 749 (Fed. Cir. 1985).
Ser. No. 78397347
6
In terms of appearance, sound, connotation and overall
commercial impression, we find that applicant’s mark TRIM
TRIO and the cited registered mark TRIO are obviously
similar to the extent that the word TRIO appears in both,
but dissimilar to the extent that applicant’s mark, but not
registrant’s mark, also includes the word TRIM. On
balance, however, and for the reasons discussed below, we
find the marks to be more similar than dissimilar.
Although there appear to be several other restaurants
around the country with the name TRIO, it nonetheless
appears that TRIO is an arbitrary designation as applied to
restaurant services. As applicant itself notes at pages 7-
8 of its main appeal brief: “The Cited Mark is simply
‘TRIO,’ meaning ‘three.’ It could allude to the number of
owners of the restaurant. It could be the number of
Michelin stars earned by the restaurant. It could be the
nickname of the owner’s dog.” TRIO thus is an arbitrary
term without any obvious significance or meaning as applied
to restaurant services; as such, it is a strong and
distinctive source indicator.
TRIM, by contrast, is somewhat suggestive of
restaurant services, as applicant itself contends: “...the
Applicant’s mark suggests to customers that the components
of the meals provided by Chick-fil-A are healthy and will
Ser. No. 78397347
7
contribute to its customers remaining at an appropriate
weight if they consume these meals.” (Applicant’s main
brief at 8.) We therefore find that the arbitrary
designation TRIO is the dominant feature in the commercial
impression created by applicant’s mark. See In re Chatam
International Inc., supra; In re National Data Corp.,
supra. That dominant feature is identical to registrant’s
mark.
Applicant’s mark consists of the registered mark in
its entirety, plus the additional word TRIM. We find that
applicant’s addition of the suggestive word TRIM to the
arbitrary designation TRIO does not suffice to distinguish
the two marks. Moreover, we are not persuaded by
applicant’s “alliteration” argument; the mere fact that
TRIM TRIO is an example of alliteration does not suffice to
distinguish the marks in this case.
In short, we find that any dissimilarity between the
marks which results from applicant’s addition of the word
TRIM to its mark is greatly outweighed by the basic
similarity between the marks which results from the
presence in both marks of the arbitrary designation TRIO.
That is, consumers are more likely to assume, based on the
presence of the word TRIO in both marks, that a source
connection exists, than they are likely to assume, based on
Ser. No. 78397347
8
the presence of the additional word TRIM in applicant’s
mark, that no source connection exists. Finally, in cases
such as this, where the applicant’s services are identical
to the services recited in the cited registration, the
degree of similarity between the marks which is required to
support a finding of likelihood of confusion is less than
it would be if the services were not identical. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698 (Fed. Cir. 1992). We find that applicant’s
mark is sufficiently similar to the cited registered mark
that confusion is likely to result from use of the two
marks in connection with the identical “restaurant
services” involved herein. The first du Pont factor
accordingly weighs in favor of a finding of likelihood of
confusion.
In summary, we find that applicant’s and registrant’s
services, and the trade channels for those services, are
legally identical. The services are of the type which may
be purchased on impulse. Although there may be several
other TRIO restaurants around the country, we find that
TRIO nonetheless is an arbitrary designation as applied to
restaurant services and that the cited registered mark
therefore is strong and distinctive. The presence of the
word TRIO in applicant’s mark renders the marks similar in
Ser. No. 78397347
9
terms of their overall source-indicating commercial
impression; applicant’s addition of the word TRIM does not
suffice to distinguish the marks.
Weighing all of the evidence of record as it pertains
to the du Pont factors, we conclude that a likelihood of
confusion exists. To the extent that any doubts might
exist as to the correctness of this conclusion, we resolve
such doubts against applicant. See In re Shell Oil Co.,
992 F.2d 1204, 26 USPQ2d 1687 (Fed. Cir. 1993); In re Hyper
Shoppes (Ohio) Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir.
1988); and In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).

Decision: The refusal to register is affirmed.