Cibao Meat Products, Inc.

Trademark Trial and Appeal Board

Aug 24, 2000

No. 75428204 (T.T.A.B. Aug. 24, 2000)

Paper No.
13
rls/em
8/24/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Cibao Meat Products, Inc.
________
Serial No. 75/428,204
_______
Murray Schaffer for Cibao Meat Products, Inc.
Robert L. Lorenzo, Trademark Examining Attorney, Law Office
111 (Craig Taylor, Managing Attorney).
_______
Before Simms, Cissel and McLeod, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:
Cibao Meat Products, Inc. (applicant), a New York
corporation, has appealed from the final refusal of the
Trademark Examining Attorney to register the mark shown below
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/428,204
2
for hot dogs, packaged for sale in supermarkets, groceries and
butcher shops.1 The Examining Attorney has refused
registration under Section 2(d) of the Act, 15 USC §1052(d),
on the basis of Registration No. 1,730,069, issued November 3,
1992, for the mark shown below, for restaurant, bar and lounge
services.
Registrant has disclaimed the words ?TAPAS BAR RESTAURANT?
apart from the mark as shown.2
Applicant argues that the marks of registrant and
applicant are visually different and project different

1 Application Serial No. 75/428,204, filed February 3, 1998, based
upon applicant’s allegation of a bona fide intention to use the mark
in commerce. The original description of goods was “hot dogs and
sausages.” Applicant has indicated that the mark is lined for the
colors red, yellow and green, but that color is not a feature of the
mark.
Ser. No. 75/428,204
3
commercial impressions. With respect to the goods and
services, it is applicant’s position that the registration
issued for a service mark for a Spanish tapas restaurant
which, according to applicant, is the Spanish equivalent of a
smorgasbord restaurant, where a variety of prepared foods are
available in small portions.3 In contrast, applicant’s
attorney states that applicant’s goods--hot dogs sold in
supermarkets--are different goods which travel in different
channels of trade.4
We agree with the Examining Attorney, however, that the
respective marks are very similar in commercial impression and
that the goods and services are sufficiently related so that
confusion is likely. As the Examining Attorney has noted,
while the respective marks must be considered in their
entireties, one feature may be recognized as more significant
or dominant in creating a commercial impression. In re

2 Sections 8 and 15 affidavit accepted and acknowledged,
respectively.
3 Applicant has submitted no evidence in support of this statement.
“Tapas” are defined as “Spanish appetizers that can be hot or cold,
simple or complex,” in the material attached to the Examining
Attorney’s brief (from Webster’s New World Dictionary of Culinary
Arts (1997), of which we take judicial notice. We also take judicial
notice of the definition from Webster’s Third New International
Dictionary (Unabridged) (1993), which defines “tapa” as “:SNACK”.
4 Applicant has also made much of a single misstatement in the final
refusal (p.2) with respect to the Examining Attorney’s
misidentification of applicant’s goods. We agree with the Examining
Attorney that this misstatement, which is not elsewhere repeated by
the Examining Attorney, appears to be an innocent mistake and does
Ser. No. 75/428,204
4
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). Accordingly, greater weight may be given to that
dominant feature. Here the most prominent origin-indicating
element in the registered mark is the name ?EMILIO’S,? and the
most significant origin-indicating feature of applicant’s mark
is the identical name. We agree with the Examining Attorney
that that name would be used in calling for the respective
goods or services. While each mark contains a different
design, we do not believe that those designs, considering the
recollection of the average purchaser, who may retain but a
general rather than a specific impression of trademarks, is
sufficient to avoid likelihood of confusion.
With respect to the relatedness to registrant’s services
and applicant’s goods, we believe that the evidence of record,
including third-party registrations which issued both for
restaurant services and for hot dogs (or sausages), and the
Nexis excerpts which indicate that restaurant brand products
are increasingly sold in supermarkets, supports the Examining
Attorney’s position of commercial relatedness. Also, we do
not believe that the word ?TAPAS? in the registered mark should
serve, under the circumstances of this case, to limit the
registrant’s services to those of a ?Spanish? restaurant.
While this record establishes that the term ?tapas? was

not make the final refusal “fatally flawed,” as applicant’s attorney
Ser. No. 75/428,204
5
popularized by Spanish wine bars, this does not mean that
registrant’s restaurant, bar and lounge services are or should
be construed as ?Spanish? restaurant, bar and lounge services.
Indeed, the record shows that these appetizers or snacks may
be sold in different types of restaurants. The record also
shows that tapas restaurants also serve sausages, goods which
were in applicant’s original description of goods, and which
are similar, of course, to hot dogs.
Suffice it to say that we believe that consumers, aware
of registrant’s EMILIO’S TAPAS BAR RESTAURANT restaurant
services, who then encounter applicant’s EMILIO’S and design
hot dogs in a supermarket or grocery store, would be likely to
believe that these goods and services come from the same
source or are sponsored by the same entity. See In re Best
Western Family Steak House, Inc., 222 USPQ 827 (TTAB 1984)
(restaurant services vs. frankfurters and bologna) and In re
Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467 (TTAB 1988)
(mustard v. restaurant services). See also In re Azteca
Restaurant Enterprises Inc., 50 USPQ2d 1209 (TTAB 1999). If
we had any doubt, in accordance with precedent, that doubt
should be resolved in favor of the prior user and registrant.
Decision: The refusal of registration is affirmed.

argues.
Ser. No. 75/428,204
6
R. L. Simms
R. F. Cissel
L. K. McLeod
Administrative Trademark
Judges,
Trademark Trial and Appeal
Board