Cisco Bros. Corp.

Trademark Trial and Appeal Board

Sep 23, 2019

87412461 (T.T.A.B. Sep. 23, 2019)

Mailed: September 23, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
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In re Cisco Bros. Corp.
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Serial No. 87412461
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Dyan M. House, Baker & McKenzie, LLP, for Cisco Bros. Corp.
Melissa Vallillo, Trademark Examining Attorney, Law Office 105, Jennifer Williston,
Managing Attorney.
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Before Mermelstein, Wolfson, and Adlin, Administrative Trademark Judges.
Opinion by Mermelstein, Administrative Trademark Judge:
Alleging an intent to use the mark in commerce, Cisco Bros. Corp. applied to reg-
ister CISCO and design displayed as follows:

for (as amended) “[r]etail store services featuring sustainable artisan home furniture
and excluding mattresses” in International Class 28.1
The Examining Attorney issued a final refusal pursuant to Trademark Act § 2(d),

1 Filed April 14, 2017. The application includes this description of the mark: “[t]he mark
consists of the word CISCO with a maple leaf inside of the letter O.”
This Opinion is Not a
Precedent of the TTAB
Serial No. 87412461
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15 U.S.C. §1052(d), on the ground that Applicant’s mark is likely to cause confusion
with the registered mark GOOD THINGS COME FROM SYSCO (in standard char-
acters) for “[d]rinking straws[ and] mattresses.”2
Applicant appeals. We affirm.
I. Analysis
Our determination under Trademark Act § 2(d) is based on an analysis of the pro-
bative facts in evidence that are relevant to the factors bearing on the issue of likeli-
hood of confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). In considering the evidence, we keep in mind that “[t]he fundamental
inquiry mandated by Section 2(d) goes to the cumulative effect of differences in the
essential characteristics of the goods and differences in the marks.” Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see In
re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
A. Similarity or dissimilarity of the marks
In a likelihood of confusion analysis, we compare the marks in their entireties for
similarities and dissimilarities in appearance, sound, connotation, and commercial
impression. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “The proper test is not
a side-by-side comparison of the marks, but instead whether the marks are suffi-

2 Registration No. 4739303, issued May 19, 2015.
Serial No. 87412461
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ciently similar in terms of their commercial impression such that persons who en-
counter the marks would be likely to assume a connection between the parties.”
Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1377, 101 USPQ2d 1713,
1721 (Fed. Cir. 2012) (citation and internal quotation marks omitted).
Applicant’s mark “consists of the word CISCO with a maple leaf inside of the let-
ter O,” while the mark in the cited registration is GOOD THINGS COME FROM
SYSCO in standard characters. The marks are similar in some respects and different
in others.
The marks are similar in that the term CISCO in Applicant’s mark would likely
be pronounced the same as the term SYSCO in the cited registration. In addition,
CISCO and SYSCO are somewhat similar in appearance, both being of the same
length and ending in —SCO. And because the cited mark is registered in standard
characters, it covers use of the registrant’s mark in any font style, size, or color, in-
cluding that used by Applicant for the term CISCO (not including the leaf design).
See In re Viterra, 101 USPQ2d at 1909; Cunningham v. Laser Golf Corp., 55 USPQ2d
at 1847; Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937 (Fed. Cir. 1983) (“[T]he
argument concerning a difference in type style is not viable where one party asserts
rights in no particular display”).
The cited mark includes the initial wording GOOD THINGS COME FROM, and
Applicant’s mark includes the design of a maple leaf inside the letter O. Both of these
features distinguish the marks in certain respects. Nonetheless, it is clear that the
words CISCO and SYSCO are the dominant elements of the respective marks and
Serial No. 87412461
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are therefore entitled to greater weight in our analysis. In re Nat’l Data Corp., 753
F.2d 1056, 1058, 224 USPQ 749, 750-51 (Fed. Cir. 1985) (“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 consideration of the
marks in their entireties”).
The phrase GOOD THINGS COME FROM is entitled to lesser weight because
it is at best lauditorily suggestive, as it touts the “good” quality of the “things [that]
come from” SYSCO.3 During examination, Applicant admitted that this wording is
laudatory. Response to Office Action (Aug. 15, 2018). The laudatory prefatory phrase
GOOD THINGS COME FROM refers to the final word SYSCO, pointing to and
identifying it as the dominant and distinctive element of the mark, and, importantly,
the source of Registrant’s goods. As such, we find that the term SYSCO dominates
the impression formed by the registered mark, and gives it greater weight than the
laudatory wording which precedes it. The source of Applicant’s goods is CISCO and
the source of Registrant’s goods is SYSCO.
Applicant contends that its mark
is widely recognized as referring to the Applicant’s trade
name . . . and ends with the maple leaf design . . . which is
also widely recognized as referring to Cisco Brothers.” . . . .
[By contrast] “SYSCO” in the Registered Mark is an acro-
nym for Systems and Services Company. Founded in 1970,
the company has grown to be a global leader in selling and
distributing food products to restaurants, healthcare and
educational facilities, and lodging establishments. Thus,
consumers seeing the Registered Mark would recognize it

3 Although the initial words in GOOD THINGS COME FROM SYSCO are not disclaimed
in the cited registration, the entirety of the registrant’s mark is arguably unitary.
Serial No. 87412461
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as a slogan used by Sysco Corporation (also known as Sys-
tems and Services Company).
App. Br., 4 TTABVUE 8–9.
The essence of Applicant’s argument is that the Registrant’s renown makes con-
fusion less likely. This is incorrect as a matter of law. Kenner Parker Toys Inc. v. Rose
Art Indus. Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992). To the contrary,
the renown, if any, of a registrant’s mark is a factor that always favors affirmance,
not reversal, of the refusal.
Finally, the maple-leaf design in Applicant’s mark does not significantly distin-
guish Applicant’s mark from Registrant’s. Where a mark consists of words as well as
a design, the words are generally considered dominant since they will be used to call
for or refer to the goods. CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed.
Cir. 1983) (“in a composite mark comprising a design and words, the verbal portion
of the mark is the one most likely to indicate the origin of the goods to which it is
affixed”); In re Dakin’s Miniatures Inc., 59 USPQ2d 1593, 1596 (TTAB 2001); In re
Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987). We find that to be the
case here. In Applicant’s mark, the maple-leaf design is not so prominent, visually or
conceptually, as to rival the word CISCO in which it appears as an element. While
we may not and do not ignore the maple-leaf design, the term CISCO is clearly the
primary and dominant impression conveyed by Applicant’s mark.
We conclude that when considered in their entireties, Applicant’s CISCO and de-
sign mark is similar to the GOOD THINGS COME FROM SYSCO mark in the
cited registration. This factor favors a finding of likely confusion.
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B. Similarity or dissimilarity and nature of the goods and
services; relevant purchasers
In comparing the goods and services, “[t]he issue to be determined . . . is not
whether the goods . . . are likely to be confused but rather whether there is a likeli-
hood that purchasers will be misled into the belief that they emanate from a com-
mon source.” Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624
(TTAB 1989). It is not necessary that the parties’ goods be similar or even competitive
to support a finding of likelihood of confusion. It is sufficient if the goods are related
in some manner or that the conditions surrounding their marketing are such that
they would be encountered by the same persons under circumstances that could, in
light of the similarity of the marks, give rise to the mistaken belief that they come
from or are associated with the same source. In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1786 (TTAB 1993). We base our determination on the goods and ser-
vices as identified in the application and cited registration, construed in a manner
most favorable to the prior registrant. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun
Grp., Inc., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); CTS Corp. v. Cronstoms
Mfg., 515 F.2d 780, 185 USPQ 773 (CCPA 1975).
Applicant’s services are identified as “[r]etail store services featuring sustainable
artisan home furniture and excluding mattresses,” while Registrant’s goods include
“mattresses.” The Examining Attorney contends that “retail furniture stores often
sell mattresses,” Ex. Att. Br., 6 TTABVUE 8, and that “mattresses are a type of fur-
niture,” id. at 9. Applicant disagrees, maintaining “that mattresses and sustainable
artisan home furniture are still different, noncompetitive, and sold and marketed to
Serial No. 87412461
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different purchasers,” and that “there is no evidence to support th[e] contention” “that
mattresses are often considered furniture.” App. Br., 4 TTABVUE 6.
We find that mattresses are either an item of furniture or very closely related to
furniture. In order to contradict Applicant’s argument, the Examining Attorney sub-
mitted four registrations in which the goods are identified along the lines of “furni-
ture, namely, . . . mattresses.” Final Office Action (Oct. 11, 2018). While not conclu-
sive, the use of such language by trademark registrants to identify their own goods is
evidence that mattresses are a type of furniture because registrants who are in the
business of making and selling mattresses are very likely to understand the nature
of their own products.
Moreover, a “bed” is clearly “a piece of furniture,” which comprises a mattress and
a bed frame. We take judicial notice of the following definitions:
bed
. . .
noun
1 a piece of furniture upon which or within which a person
sleeps, rests, or stays when not well.
2 the mattress and bedclothes together with the bedstead
of a bed.
Dictionary.com, Unabridged, based on the Random House Unabridged Dictionary,
bed, https://www.dictionary.com/browse/bed?s=t (visited Sept. 20, 2019). See In re
Broyhill Furniture Indus. Inc., 60 USPQ2d 1511, 1514 n.4 (TTAB 2001) (Board may
take judicial notice of dictionary entries).
Serial No. 87412461
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Bed noun
. . .
1 a : a piece of furniture on or in which to lie and sleep
. . .
e (1) : a mattress filled with soft material
(2) : BEDSTEAD
. . .
Merriam-Webster online, bed, https://www.merriam-webster.com/dictionary/bed (vis-
ited Sept. 23, 2019). Thus, beds and mattresses are complementary, even if mat-
tresses are not “furniture,” or only a component of “furniture.” See In re Davia, 110
USPQ2d 1810, 1815 (TTAB 2014) (“conjoint use is a fact proper to be considered along
with other facts present in particular cases”); see also In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984) (“[T]he products ‘bread’
and ‘cheese’ are often used in combination. Such complementary use has long been
recognized as a relevant consideration in determining a likelihood of confusion.”).
While we think furniture can be construed to include mattresses, the issue is not
whether mattresses are a type of furniture (because Applicant’s furniture explicitly
excludes mattresses) but whether they are related in such a manner that consumers
would believe Applicant’s retail services in the field of sustainable artisan home fur-
niture to have the same source or otherwise be related to the registrant’s mattresses.
In this regard, we are further persuaded by the Examining Attorney’s evidence show-
ing furniture and mattresses being sold together, Final Office Action (Oct. 11, 2018),
and evidence of third-party registrations identifying both mattresses and furniture,
Serial No. 87412461
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Office Action (Feb. 15, 2018), see In re Mucky Duck Mustard Co., 6 USPQ2d 1467,
1470 n.6 (TTAB 1988) (such third-party registrations suggest that the listed goods or
services are related). Moreover, Applicant’s services explicitly include “home furni-
ture,” and beds — including mattresses — are a type of furniture commonly used in
the home. Thus, although Applicant has excluded mattresses from its retail services,
Applicant’s retail services remain directed to furniture which is closely related to
mattresses.
Although the subject application identifies services (“retail services featuring sus-
tainable artisan home furniture”) and the cited registration identifies goods (“mat-
tresses”) it has long been held that goods are closely related to retail services involv-
ing the sale of the same or similar goods. In re Detroit Athletic Co., 903 F.3d 1297,
128 USPQ2d 1047 (Fed. Cir. 2018) (citing Hewlett-Packard Co. v. Packard Press, Inc.,
281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002); In re Hyper Shoppes (Ohio),
Inc., 837 F.2d 463, 6 USPQ2d 1025, 1026 (Fed. Cir. 1988)). We find that to be the case
here.
We acknowledge that Applicant’s services are limited to those involving “sustain-
able artisan” furniture. While there is little information in the record regarding the
nature of “sustainable artisan” furniture, this limitation does not distinguish Appli-
cant’s services from registrant’s goods. There does not appear to be any reason why
Applicant’s services would not include those directed to, for instance, the sale of “sus-
tainable artisan” beds which use mattresses. Likewise, because the registrant’s mat-
Serial No. 87412461
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tresses are identified without limitation, we must assume them to include “sustaina-
ble artisan” mattresses.
Finally, we disagree with Applicant’s contention that the goods are “sold and mar-
keted to different purchasers.” App. Br., 4 TTABVUE 6. Applicant’s “sustainable ar-
tisan home furniture” must be construed to include sustainable artisan home beds.
And while Applicant’s retail services exclude the sale of mattresses, purchasers of
beds are purchasers of mattresses, such as the registrant’s, and beds and mattresses
are often purchased and used together. Therefore, Applicant’s and the registrant’s
consumers are identical in relevant part.
We conclude that, although Applicant’s services are not identical to the regis-
trant’s goods, they are closely related, and could be marketed to the same purchasers.
These factors also favor a finding of likely confusion.
II. Conclusion
We have considered all of the evidence and argument of record, including any not
discussed. We have found Applicant’s mark

to be similar to the mark in the cited registration, GOOD THINGS COME FROM
SYSCO. We have also found that Applicant’s services are related to the goods in the
cited registration, and that they are directed to the same purchasers. While neither
the involved marks nor the goods and services are identical, consideration of the rec-
ord as a whole leads to the conclusion that confusion is likely.
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Decision: The refusal to register under Trademark Act § 2(d) is affirmed.