Cheerleader Pub and Grill, Inc.

Trademark Trial and Appeal Board

Aug 3, 2021

86097044 (T.T.A.B. Aug. 3, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: August 3, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Cheerleader Pub and Grill, Inc.
_____

Serial No. 86097044
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Charles C. McCloskey, Esq. for Cheerleader Pub and Grill, Inc.

Michele-Lynn Swain, Trademark Examining Attorney, Law Office 116,
Matthew J. Cuccias, Managing Attorney.
_____

Before Mermelstein, Goodman and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicant, Cheerleader Pub and Grill, Inc., applied to register the composite mark
CHEERLEADER PUB AND GRILL, (with “PUB AND GRILL” disclaimed), shown
below, on the Principal Register for “restaurant and bar services with a sports theme
promoted upon billboards and electronic media” (as amended) in International Class
43:1

1 Application Serial No. 86097044 (“the Application”) was filed on October 21, 2013 under
Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of first use
anywhere of June 10, 2013, and first use in commerce of July 5, 2013. “The mark consists of
the words ‘CHEERLEADER PUB AND GRILL’ in a collegiate font where ‘CHEERLEADER’
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The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), on the ground of likelihood of confusion with the mark
CHEERLEADERS BAR & GRILL, in standard characters, on the Principal Register
for “clothing for women, men and children, namely, T-shirts” in International Class
25, and “food catering” in International Class 43.2
When the refusal was made final, Applicant filed an appeal and requested
reconsideration of the refusal, which was denied. The appeal is fully briefed.
We affirm the refusal.
I. Preliminary Issues
The Examining Attorney objects that Applicant submitted, as exhibits to its
appeal brief, new evidence that was not introduced prior to the appeal including an
affidavit from Applicant’s Vice President, an electronic printout from Registrant’s
purported Facebook page, and materials from Applicant’s website.3 Applicant did not
respond to the Examining Attorney’s objection in its reply brief.

begins with an enlarged letter ‘C’ and ‘CHEERLEADER’ continues diagonally up and right
upon a ribbon, and the ribbon has behind it a partial football up and to the left, a partial
basketball down and to the right, a partial baseball glove adjacent and below the partial
basketball, and a baseball in the partial baseball glove, and the words ‘PUB AND GRILL’ to
the right of the partial baseball glove.” Color is not claimed.
2 Reg. No. 5572838 (“the Registration”) issued on October 2, 2018. “BAR & GRILL” is
disclaimed.
3 8 TTABVUE 5 (Examining Attorney’s Brief).
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The Examining Attorney’s objection to these materials is sustained. The record in
an application should be complete prior to the filing of an appeal. Trademark Rule
2.142(d), 37 CFR § 2.142(d). Exhibits attached to a brief that were not made of record
during examination are untimely, and generally will not be considered. Id. In re
Compania de Licores Internacionales S.A., 102 USPQ2d 1841, 1843 (TTAB 2012).
Applicant was afforded the opportunity to place additional relevant third-party
registrations in the record when it sought reconsideration, but failed to do so. See In
re Fiat Grp. Mktg. & Corp. Commc’ns S.p.A, 109 USPQ2d 1593, 1596 (TTAB 2014)
(untimely evidence given no consideration); In re Pedersen, 109 USPQ2d 1185, 1188
(TTAB 2013); In re Jump Designs LLC, 80 USPQ2d 1370, 1372 (TTAB 2006).
Accordingly, we will not consider the new materials attached for the first time with
Applicant’s brief.
Applicant, for its part, for the first time with its reply brief, raised a couple of
procedural objections regarding two of the Examining Attorney’s office actions issued
during prosecution, which are untimely and therefore waived.4 See Threshold.TV Inc.
v. Metronome Enters. Inc., 96 USPQ2d 1031, 1035 (TTAB 2010); In re Lar Mor Int’l,
Inc., 221 USPQ 180, 183 (TTAB 1983).

4 9 TTABVUE 3 (Applicant’s Reply Brief). The objections are also without merit. The first is
that the Examining Attorney, in her June 23, 2020 office action continuing the final refusal,
did not advise Applicant that it needed to file another appeal (which Applicant did not). The
second is that the Examining Attorney improperly provided Applicant with a 6-month
response time in its subsequent final refusal instead of simply resuming the appeal.
Essentially, Applicant is complaining it had too much time, even though it caused the delay
in the first place by filing an irrelevant request to amend the application to the Supplemental
Register, and instead of amending its goods, indicated a willingness to do so. These
procedural errors are harmless and do not affect the appeal.
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II. Likelihood of Confusion
The fundamental purpose of Trademark Act Section 2(d) is to prevent confusion
as to source, and to protect registrants from damage caused by registration of marks
likely to cause confusion. Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189,
224 USPQ 327, 331 (1985). Our analysis is based on all of the probative evidence of
record. In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“DuPont”) (setting forth factors to be considered, hereinafter referred
to as “DuPont factors”). In making our determination, we consider each DuPont factor
for which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376,
129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned to each
DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods or services. See In re
Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (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 [and services] and
differences in the marks.”).
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A. Comparison of the Marks

The first DuPont factor considers the “similarities or dissimilarities of the marks
in their entireties as to appearance, sound, connotation and commercial impression.”
In re Detroit Athl., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting
DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient
to find the marks confusingly similar.” In re Inn at St. John’s, 126 USPQ2d 1742,
1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d at 1812), aff’d mem., 777 Fed.
App’x. 516 (Fed. Cir. 2019).
The test is not whether the marks can be distinguished in a side-by-side
comparison, but rather whether their overall commercial impressions are so similar
that confusion as to the source of the goods offered under the respective marks is
likely to result. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801
(Fed. Cir. 2018) (citing Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1721 (Fed. Cir. 2012)). Our focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific impression
of service marks. See Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d 1391, 161 USPQ
687, 688 (CCPA 1969) (many consumers “may have but dim recollections from having
previously seen or heard one or the other of the involved marks.”); Inter IKEA Sys.
B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014). Because the goods and
services at issue are restaurant and bar services, catering services, and t-shirts, with
no limitations, the average purchaser is an ordinary consumer interested in such
goods and services.
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Applicant argues that the marks are distinguishable because Applicant’s mark
“uses CHEERLEADER in singular form” which, according to a purported dictionary
definition not of record, “denotes one person of exuberance who leads others backing
a team.”5 In contrast, asserts Applicant, “Registrant uses CHEERLEADERS in plural
form,” which according to no cited dictionary evidence, “denotes a group of persons,
or a squad, leading others in cheer.”6 Applicant further asserts that “consumers pay
attention to whether a mark is singular or is plural … and know the scintilla of a
difference between them.”7 Applicant provides examples:
[A] consumer manually lifts a brick but may face difficulty with bricks.
Or, a young consumer may date a boy but go out with the boys. Or, a
consumer might eat a fish, catch fish, or play go fish with the least bit
of confusion. Or, a consumer might see a deer, want to run with the deer,
know Deere® green, and say “yes dear” without an ounce of confusion.

Applicant’s unsupported contentions are unpersuasive, its examples inane. A
“cheerleader” is “one who leads the cheering of spectators, as at a sports contest” or
“a member of a group that performs coordinated routines typically combining
gymnastic and dance maneuvers, originally including rhythmic chants to encourage
spectators to cheer at an athletic event, but often in competition with similar
groups.”8 We need no evidence to know that the plural form of the word simply means

5 6 TTABVUE 11 (Applicant’s Brief).
6 Id. at 10-11.
7 Id. at 10.
8 The American Heritage Dictionary (ahdictionary.com, accessed July 27, 2021). 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 regular fixed editions. In
re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). We are unable to take judicial notice
Serial No. 86097044
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that more than one person is performing that activity. This is not a distinguishing
factor. See e.g., In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1637 (Fed.
Cir. 2016) (“While each trademark must always be evaluated individually,
pluralization commonly does not alter the meaning of a mark.”); Swiss Grill Ltd. v.
Wolf Steel Ltd., 115 USPQ2d 2001, 2011 n.17 (TTAB 2015) (singular and plural of
SWISS GRILL deemed “virtually identical”); Weider Publ’ns, LLC v. D & D Beauty
Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014) (singular and plural forms of SHAPE
considered essentially the same mark); In re Binion, 93 USPQ2d 1531, 1534 (TTAB
2009) (“[t]he absence of the possessive form in applicant’s mark … has little, if any,
significance for consumers in distinguishing it from the cited mark”).
We note that the wording in Applicant’s mark (CHEERLEADER PUB AND
GRILL) and Registrant’s mark (CHEERLEADERS BAR & GRILL) is virtually the
same, save for the minor differences in Applicant’s use of the singular “cheerleader,”
an ampersand (“&”) for the word “and,”9 and the synonym “PUB” instead of “BAR”10
in Applicant’s mark, which do little to distinguish the marks. We thus find the marks
highly similar in appearance, sound, connotation, and commercial impression.
Notwithstanding Applicant’s assertion that its mark includes a “large letter C” in

of the one dictionary definition relied on by Applicant purportedly from Webster’s New
College Dictionary, p. 195 (3d ed. 2008) because it does not appear online.
9 An “ampersand” (&) is “a character typically & standing for the word and,” and is
pronounced the same (Merriam-Webster dictionary (merriam-webster.com, accessed on July
27, 2021).
10 A “bar” is “room or establishment where alcoholic drinks and sometimes food are served,”
and a “pub is “an establishment where alcoholic beverages are sold and consumed.”
(Merriam-Webster dictionary (merriam-webster.com, accessed on July 27, 2021).
Serial No. 86097044
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“cheerleader,” because Registrant’s mark is in standard characters, it may be
displayed in the same font style as the wording in Applicant’s mark, thereby
enhancing their overall similarity as to commercial impression. See In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1909 (Fed. Cir. 2012); (holding that the specific
font style of a mark cannot serve as the basis to distinguish it from a mark in standard
character form); Citigroup Inc., 98 USPQ2d at 1259 (Fed. Cir. 2011) (registrant
“entitled to depictions of the standard character mark regardless of font style, size,
or color”).
While Applicant's mark includes a three-dimensional design element comprised
of several sports items (football, basketball, and baseball and mitt) overlaid with a
ribbon upon which the word CHEERLEADER is shown, we find that it makes a less
significant contribution to the mark’s overall impression than the wording, since “the
verbal portion of the mark is the one most likely to indicate the origin of the goods to
which it is affixed [or services with which it is associated].” Jack Wolfskin Ausrustung
Fur Draussen GmbH & Co., KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363,
116 USPQ2d 1129, 1134 (Fed. Cir. 2015). Greater weight is often given to the wording
because it is the wording that purchasers would use to refer to or request the services.
See, e.g., In re Viterra Inc., 101 USPQ2d at 1911; In re Dakin's Miniatures, Inc., 59
USPQ2d 1593 (TTAB 2001) (“words are normally accorded greater weight because
they would be used by purchasers to request the goods”).
Viewed in their entireties, we find that Applicant’s mark and Registrant’s mark
are highly similar in appearance, sound, connotation and commercial impression. The
Serial No. 86097044
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first DuPont factor therefore weighs strongly in favor of finding likelihood of
confusion.
B. Comparison of the Goods and Services
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration.” DuPont, 177
USPQ at 567. “[L]ikelihood of confusion can be found ‘if the respective goods [and
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 Servs., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v.
Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
To establish relatedness of Applicant’s sports themed restaurant bar and services
with Registrant’s t-shirts and food catering, the Examining Attorney made of record
Internet evidence from the websites of 19 third-party restaurants and bars that
provide catering services in addition to restaurant and bar services, and in some
cases, sell t-shirts.11 Some examples are shown below:

11 February 4, 2019 Office Action, TSDR 22-51; October 22, 2019 Final Office Action, TSDR
7-68.
Serial No. 86097044
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American Glory Restaurant12

Hibiscus Restaurant & Bar13

12 February 4, 2019 Office Action, TSDR 22 (americanglory.com).
13 Id. at 30 (hibiscusrestaurantbar.com).
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La Gringa Bar & Grill14

Smiths Restaurant/Bar15

14 Id. at 35 (lagringagrill.com).
15 October 22, 2019 Final Office Action, TSDR 44 (smiths-restaurant.com).
Serial No. 86097044
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Driftwood Restaurant & Sports Bar16

Bloomers Sports Bar-N-Grill17

16 Id. at 46-47 (thedriftwoodonline.com).
17 Id. at 48-49 (bloomersbar).
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The Esso Club18

18 Id. at 58-59 (thessoclub.com).
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Buffalo Bills Tavern & Grill19

This third-party use evidence shows that the same entity commonly offers
Applicant’s restaurant and bar services and Registrant’s catering services and t-shirt
goods under the same mark. See, e.g., Hewlett-Packard Co. v. Packard Press Inc., 281
F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (“[E]vidence, such as whether a
single company sells the goods and services of both parties, if presented, is relevant

19 Id. at 63-65 (buffalobillsaz.com).
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to a relatedness analysis....”); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-03
(TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271-72 (TTAB 2009).
The Examining Attorney also provided evidence of six use-based third-party
registrations of marks that identify both restaurant and bar services, as well as
catering services.20 Third-party registrations are not evidence that the marks shown
are in commercial use, or that the public is familiar with them. However, they “may
have some probative value to the extent that they serve to suggest that the listed
goods and/or services are of a type that may emanate from a single source,” as they
do here with respect to Applicant’s restaurant and bar services and Registrant’s
catering services. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB
1993) (third party registrations support finding “leather sold in bulk” related to “all-
purpose sports bags, luggage, attaché cases, portfolio briefcases, and handbags”). See
also In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (third-
party registrations support finding “restaurant services” related to “mustard”).
Applicant acknowledges that “[t]he Examining Attorney refers to a plurality of
websites showing how catering services and clothing flow from restaurants and bars,”
and acknowledges that “[i]ndeed, some restaurants and bars have catering and
carryout services.”21 Applicant thus effectively concedes that its restaurant and bar
services and Registrant’s catering services are related.

20 February 4, 2019 Office Action, TSDR 7-21. The Examining Attorney discussed other third-
party registrations in her office action that, in addition to restaurant and bar services, and
catering, also identified t-shirts, but did not provide evidence of their registration, so we do
not consider them.
21 6 TTABVUE 9 (Applicant’s Brief).
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However, with respect to t-shirts, Applicant poses the question, “do people go to a
restaurant or a bar to buy clothes?” and answers, “No, people go there to eat and to
drink: clothes become an afterthought of a mere souvenir of the pleasant dining
experience.”22 Applicant’s contention is misplaced. Regardless of whether purchasing
t-shirts is a primary purpose or merely an afterthought of eating or drinking at a
restaurant or bar, the issue before us is whether t-shirts and restaurant/bar 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 Servs., 101 USPQ2d at 1722. The third-party use evidence of
record shows that restaurants and bars commonly sell merchandise, including t-
shirts, which may give rise to the mistaken belief that such goods and services
emanate from the same source. In any event, likelihood of confusion must be found if
there is likely to be confusion with respect to any item that comes within the
identification of goods or services in an application, such as with the catering services
identified in the Registration. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648
F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Notwithstanding the foregoing evidence, Applicant maintains that “its restaurant
and bar services, compared to Registrant’s clothing and catering, are ‘not related or
marketed in such a way that they would be encountered by the same persons in
situations that would create the incorrect assumption that they originate from the
same source’” because (1) “[Applicant’s] billboards along Interstate 70 in Missouri,

22 Id.
Serial No. 86097044
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and radio campaigns, provide localized advertising and marketing unseen and
unheard by Registrant’s customers in Florida and the East Coast,” and (2) Applicant
notes its website includes metatags and other code that presents its locations in
Missouri marketed towards local customers as opposed to prospective customers far
away in Florida and the East Coast.23
Applicant’s contentions are irrelevant because in analyzing relatedness of the
goods and services under the second DuPont factor, we look to the identifications in
the application and cited registrations, and not extrinsic evidence of actual use. See
Detroit Athl., 128 USPQ2d at 1052 (citing In re i.am.symbolic, llc, 866 F.3d 1315, 123
USPQ2d 1744, 1749); Octocom Sys., Inc. v. Hous. Computer Servs. Inc., 918 F.2d 937,
16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Additionally, to the extent applicant is
arguing lack of confusion because of geographical factors, its argument cannot be
considered because Applicant “seeks a geographically unrestricted registration,”
Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 393 (Fed.
Cir. 1983), and the cited registration is also geographically unrestricted, which
presumptively gives Registrant “the exclusive right to use its mark throughout the
United States.” Id. See also In re Appetito Provisions, Inc., 3 USPQ2d 1553, 1554 n.4
(TTAB 1987). This is not a concurrent use proceeding, cf. Sw. Mgmt., Inc. v.
Ocinomled, Ltd., 115 USPQ2d 1007 (TTAB 2015), and we cannot consider the possible
geographically separate uses of the subject marks by Applicant and Registrant in

23 Id. at 10 (citations omitted). Applicant cites to one photo of a billboard advertisement on a
highway, and one page of text from a purported radio campaign, with its June 1, 2020 Request
for Reconsideration, TSDR 12.
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deciding whether there is a likelihood of confusion. Appetito Provisions, 3 USPQ2d at
1554 n.4.
Applicant also argues that “issue preclusion prevents the Examining Attorney
from expanding Registrant’s mark to include anything more than food catering and
t-shirts.”24 During prosecution of its application, Applicant opposed registration of
the cited mark, which at that time was still pending at that time and identified
various other goods and services, on several grounds including likelihood of confusion
and nonuse.25 During the opposition, Registrant (as applicant in the opposition)
moved to amend its identification of goods and services to delete most of the goods
and services identified in the application (including “restaurant and bar services and
carry out restaurant services”).26 In its decision, the Board entered judgment as to
those goods and services and, based on its finding of nonuse, limited the application
(and subsequent registration) to “clothing for women, men and children, namely, T-
shirts” and “food catering services,” and dismissed Applicant’s (as Opposer in the
opposition) likelihood of confusion claim based on its failure to prove priority as to
those remaining goods and services.27
Applicant’s claim preclusion argument is apparently based on a misapprehension
of the concept of establishing relatedness of goods and services via third-party use
and registration evidence, and is unavailing. Contrary to Applicant’s contentions, the

24 6 TTABVUE 7-8 (Applicant’s Brief).
25 1 TTABVUE (Opposition No. 91216816).
26 46 TTABVUE (Opposition No. 91216816).
27 107 TTABVUE (Opposition No. 91216816).
Serial No. 86097044
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Examining Attorney has not sought to expand the goods or services in the
Registration contrary to the Board’s prior decision, which limited the original
identification of goods and services.
Based on the third-party use and registration evidence of record, we find that
Applicant’s and Registrant’s services are related, and that the second DuPont factor
supports a finding of likelihood of confusion.
C. Comparison of the Trade Channels
The third DuPont factor concerns the “similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159, 1161 (Fed.
Cir. 2014).
Applicant argues that the trade channels for Applicant’s restaurant and bar
services and Registrant’s t-shirts and catering services are different because:
A catering service moves around and goes to its customers. Applicant,
on the other hand, has two fixed restaurant locations…. A restaurant
works to draw in customers to its fixed location. Restaurants seek
customers hungry now while caterers seek customers who are hungry
later. These are two distinct channels of trade. … Applicant’s
restaurants have fixed locations that draw in customers while the
Registrant’s catering operates in a mobile manner and goes to the
customers. Food and beverage at a restaurant are sold directly to the
customers at their tables and chairs while a caterer sells food and
beverage to an event organizer.28

Applicant’s argument is unavailing because the third-party use evidence of record
demonstrates that the same entities commonly provide both restaurant and catering

28 6 TTABVUE 15 (Applicant’s Brief).
Serial No. 86097044
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services under the same mark. Moreover, because there are no limitations as to
channels of trade or classes of purchasers in the identification of goods and services
in the application or the Registration, we must presume that the identified goods and
services move in all channels of trade normal for such goods and services and are
available to all potential classes of ordinary consumers. See Citigroup Inc., 98
USPQ2d at 1261; In re Jump Designs, 80 USPQ2d at 1374 (TTAB 2006); In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981). The third-party evidence of record shows
that Applicant’s restaurant and bar services and Registrant’s t-shirts and catering
services are indeed offered through the same trade channels and are promoted
together on such entities’ websites.
The third DuPont factor weighs in favor of likelihood of confusion.
D. Purchasing Conditions
The fourth DuPont factor considers “[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” Stone Lion,
110 USPQ2d at 1162 (quoting DuPont, 177 USPQ at 567). Circumstances suggesting
care in purchasing may tend to minimize the likelihood of confusion between similar
marks. See, e.g., In re N.A.D., Inc., 754 F.2d 996, 224 USPQ 969, 971 (Fed. Cir. 1985)
(concluding that, because only sophisticated purchasers exercising great care would
purchase the relevant goods, there would be no likelihood of confusion merely because
of the similarity between the marks).
“Applicant asserts that multiple classes of customers would visit its website,”
which “lists seven categories of food. Here again, a purchaser has to search for the
category desired: exercising care to find the desired product for a sophisticated palate.
Serial No. 86097044
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A careful purchaser is less likely to be confused.”29 Applicant’s argument is
unpersuasive. Again, because there are not limitations in the respective
identifications, the purchaser of Applicant’s restaurant and bar services and
Registrant’s t-shirts and catering services are ordinary consumers. That customers
of Applicant’s have to select among various menu items at its restaurant has no
bearing on their sophistication. Moreover, “even sophisticated consumers are not
immune from source confusion ....” Fiserv, Inc. v. Elec. Transaction Sys. Corp., 113
USPQ2d 1913, 1922 (TTAB 2015).
This fourth DuPont factor is neutral.
E. The Number and Nature of similar marks in use on Similar Goods or
Services
The sixth DuPont factor “considers ‘[t]he number and nature of similar marks in
use on similar goods [or services],’” Omaha Steaks Int’l, Inc. v. Greater Omaha
Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1693 (Fed. Cir. 2018) (quoting
DuPont, 177 USPQ at 567). Applicant asserts that it “provided a plurality of printouts
of other marks containing the term ‘CHEERLEADER’ in various international
classes,” and that “[t]he prevalence of CHEERLEADER in a few classes trends
against distinctiveness in the registered mark.”30
Applicant’s evidence consists of six third-party registrations of marks that include
the word CHEERLEADER(S), and is not evidence of use in the marketplace.31 As the

29 Id.
30 Id.
31 August 5, 2019 Response to Office Action, TSDR 24-31.
Serial No. 86097044
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Federal Circuit has stated, “evidence of third-party use of similar marks on similar
goods [or services] ‘can show that customers have been educated to distinguish
between different marks on the basis of minute distinctions.’” Jack Wolfskin, 116
USPQ2d at 1136 (quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
115 USPQ2d 1671, 1674 (Fed. Cir. 2015)) (emphasis added).
Moreover, the goods and services identified in five of the third-party registrations
(e.g., adult exotic dancing, dancing and cheerleading, pom-poms for cheerleading,
bicycles, and live orchids) are unrelated to the goods and services at issue here and
are therefore not probative. One registration is for the mark THE CHEERLEADERS
CLUB for goods including t-shirts,32 which is insufficient to establish that the term
CHEERLEADER(S) is diluted, especially without evidence that the mark is in actual
use on a commercial scale or that the public has become familiar with it. See In re
Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016). We therefore accord the cited
mark the normal scope of protection due to an inherently distinctive mark.
F. Remaining Factors
We briefly run through each of the remaining DuPont factors raised by Applicant,
but argued only half-heartedly in its brief. With respect to the fifth DuPont factor,
the fame of the prior mark, DuPont, 177 USPQ at 567, Applicant argues that “the
registered mark CHEERLEADERS BAR & GRILL is unknown.”33 However, the
absence of evidence of fame is not particularly significant in the context of an ex parte

32 Id. at 29-30
33 6 TTABVUE 16 (Applicant’s Brief).
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appeal and is normally treated as neutral when no evidence of fame has been
provided. Davey Prods., 92 USPQ2d at 1204; In re Thomas, 79 USPQ2d 1021, 1027
n.11 (TTAB 2006).
With respect to the seventh DuPont factor, which considers the “nature and extent
of any actual confusion,” DuPont, 177 USPQ at 567, Applicant asserts that it “has not
encountered any actual confusion over its usage of the mark CHEERLEADER PUB
& GRILL with design and Registrant’s mark.”34 Unsupported statements of no known
instances of actual confusion are of little to no weight in an ex parte context. See In
re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003); In
re Bissett-Berman Corp., 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973).
Under the eighth DuPont factor, which considers “[t]he length of time during and
conditions under which there has been concurrent use without evidence of actual
confusion,” DuPont, 177 USPQ at 567, Applicant asserts that it “has used its mark in
commerce since July 5, 2013 and the Registrant has used its mark in commerce since
at least July 26, 2013, and no actual confusion has been experienced to Applicant’s
knowledge.”35 Again, Applicant’s statement of no known confusion has little to no
weight in this context. Additionally, this factor requires us to look at actual market
conditions, to the extent there is evidence of such conditions of record,” In re Guild
Mortg. Co., 2020 USPQ2d 10279, at *6 (TTAB 2020), and here there is no such
evidence. Further, as the Board noted in Guild Mortgage, “in [an] ex parte context,

34 Id.
35 Id.
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there [is] no opportunity to hear from Registrant about whether it is aware of any
reported instances of confusion,” thus “limit[ing] the potential probative value of
evidence bearing on the eighth DuPont factor, compared with an inter partes
proceeding, where the registrant has an opportunity to present argument and
evidence in response.” Id. at *7-8.
The ninth DuPont factor considers the “variety of goods on which a [prior] mark
is or is not used,” DuPont, 177 USPQ at 567. Under Section 2(d), confusion as to
source is more likely when the registrant or senior user offers a wide variety of goods
under its mark, such as with a “house mark” or a “family of marks.” See e.g., In re
Hitachi High-Technologies Corp., 109 USPQ2d 1769, 1774 and n.11 (TTAB 2014) and
In re Wilson, 57 USPQ2d 1863, 1867 (TTAB 2001) (use on a wide variety of goods
weighs in favor of likelihood of confusion). Applicant’s assertion, under this factor,
that “Applicant is not aware that the Registrant’s mark has become a housemark”
and that “Applicant uses its mark on signage, menus, glassware, marketing
materials, social media platforms, and related items often seen in a restaurant,”36 is
meaningless and has no probative value.
The tenth DuPont factor considers “the market interface between applicant and
the owner of a prior mark [including] ... laches and estoppel attributable to owner of
prior mark and indicative of lack of confusion,” DuPont, 177 USPQ at 567. Most
decisions involving this factor address an agreement which evinces the parties’
business-driven conclusion and belief that there is no likelihood of confusion, and

36 Id.
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weighs heavily in favor of a finding that confusion is not likely. In re Opus One Inc.,
60 USPQ2d 1812, 1820 (TTAB 2001). That “Applicant and the Registrant do not have
a business relationship and hence no mutual market interface,” as Applicant asserts,
has no probative value.
The eleventh DuPont factor considers the “extent to which applicant has a right
to exclude others from use of its mark on its goods.” DuPont, 177 USPQ at 567.
However, Applicant has not provided any significant information regarding the
advertising and rendering of services under its mark, and there is no evidence that
Applicant has successfully asserted its rights so as to “exclude” third parties from
using its mark. See, e.g., DeVivo, 2020 USPQ2d 10153 at *15 (citing McDonald’s Corp.
v. McSweet LLC, 112 USPQ2d 1268, 1284-85 (TTAB 2014) (“Applicant’s sales figures
and Applicant’s advertising and promotional expenditures are not sufficient to
establish an appreciable level of consumer recognition.”) (internal citation omitted).
Applicant’s statement that it “has persisted in business and through [sic] this
application,” and “while Applicant welcomes customers to its Missouri locations, the
Applicant seeks to exclude others using its design mark on a restaurant and in
relation to that industry”37 has no probative value. “Attorney argument is no
substitute for evidence.” Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284,
76 USPQ2d 1616, 1622 (Fed. Cir. 2005)); see also In re U.S. Tsubaki, Inc., 109
USPQ2d 2002, 2006 (TTAB 2014) (finding that there was no proof to support the
statements in the record by counsel).

37 Id. at 17.
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Referencing the twelfth DuPont factor, which considers the “extent of potential
confusion, i.e., whether de minimis or substantial,” DuPont, 177 USPQ at 567,
Applicant asserts that it “does not foresee how usage of CHEERLEADER PUB &
GRILL with design can damage the Registrant or cause potential confusion because
Applicant operates two restaurants in Missouri, in the middle of the country, while
the Registrant may operate a catering effort from greater Miami, Florida.”38 Again,
Applicant seeks a geographically unrestricted registration. Because we find that the
marks at issue are highly similar, and the respective goods and services are related
and are provided in the same or overlapping trade channels to the same or
overlapping consumers, the potential for confusion is not de minimis.
Finally, under the thirteenth DuPont factor, which considers “any other
established fact probative of the effect of use,” DuPont, 177 USPQ at 567, Applicant
asserts that it has registered a copyright for its marks, which has no bearing on our
determination of likelihood of confusion.
All of these DuPont factors are neutral in our analysis.
III. Conclusion
Because the marks are highly similar, the goods and services are related, and they
move in the same channels of trade and are rendered and sold to the same classes of
consumers, we find that Applicant’s mark for “restaurant and bar

38 Id.
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services with a sports theme promoted upon billboards and electronic media” is likely
to cause confusion with Registrant’s CHEERLEADERS BAR & GRILL for “clothing
for women, men and children, namely, t-shirts” and “food catering.”
Decision: The refusal to register is affirmed under Section 2(d) of the Trademark
Act. 15 U.S.C. § 1052(d).