Citrus Club by Dewberry 334 Meeting Street, LLC et, LLC

Trademark Trial and Appeal Board

Oct 14, 2020

87860519 (T.T.A.B. Oct. 14, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 14, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Citrus Club by Dewberry 334 Meeting Street, LLC
_____
Serial No. 87860519
_____
Andrew C. Stevens and Stephen M. Dorvee of Arnall Golden Gregory LLP
for Citrus Club by Dewberry 334 Meeting Street, LLC.

Taylor Duenas, Trademark Examining Attorney, Law Office 126,1
Andrew Lawrence, Managing Attorney.
_____
Before Zervas, Wellington, and Lynch,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Citrus Club by Dewberry 334 Meeting Street, LLC (“Applicant”) seeks registration
on the Principal Register of the mark CITRUS CLUB in standard characters for

1 The application originally was assigned to Examining Attorney Alexandra Portaro, and
then re-assigned, on May 6, 2020, to Examining Attorney Taylor Duenas, who submitted a
brief on behalf of the Office.
Serial No. 87860519
- 2 -
“cocktail lounge services” in International Class 43.2 The word CLUB has been
disclaimed.
The Examining Attorney refused registration under Trademark Act Section 2(d),
15 U.S.C. § 1052(d), based on a likelihood of confusion with the following two
registered marks, owned by the same entity:
and

CITRUS KITCHEN in standard character format.3

The cited registrations are for “restaurant services” in International Class 43 and
contain a disclaimer of the word KITCHEN.
After the Examining Attorney made the refusal final, Applicant appealed. The
appeal is fully briefed.
For the reasons set forth below, we affirm the refusal to register.
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence relevant to the factors set forth in In re E. I. du

2 Application Serial No. 87860519, filed April 3, 2018, under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), based on Applicant’s statement of its bona fide intent to use the
mark in commerce.
3 Registration Nos. 5683098 and 56683099, respectively. Both issued on February 26, 2019.
The composite word and design mark is described in the registration as consisting “of a circle
bordered with small parallel lines with an image of half of an orange slice in the upper portion
of the circle, the words CITRUS KITCHEN below, and a curved line symbol below the words
CITRUS KITCHEN.”
Serial No. 87860519
- 3 -
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973) (“DuPont”). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).
We must 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).
In this proceeding, we focus our likelihood of confusion analysis on the
Registrant’s cited standard character mark, CITRUS KITCHEN, vis-à-vis
Applicant’s mark because this registered mark does not contain the design element
which is a point of difference and the two cited marks cover the same “restaurant
services.” In other words, if it is ultimately decided that there is no likelihood of
confusion with this registered standard character mark, there is no need for us to
consider the likelihood of confusion with the other word and design mark. See In re
Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
A. The Services
In analyzing the second DuPont factor, we look to the identifications in the
application and cited registration. See Stone Lion Capital Partners v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v.
Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Indeed, “[t]he authority is legion that the question of registrability of an applicant’s
mark must be decided on the basis of the identification of [services] set forth in the
application regardless of what the record may reveal as to the particular nature of an
applicant’s [services], the particular channels of trade or the class of purchasers to
which sales of the [services] are directed.” Octocom Syst., 16 USPQ2d at 1787.
Serial No. 87860519
- 4 -
“[L]ikelihood of confusion can be found ‘if the respective [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. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir.
2012) (internal citations omitted).
A “cocktail lounge” is defined as “a bar”4 and as “a public room (as in a hotel, club,
or restaurant) where cocktails and other drinks are served.”5
The record and definitions cited above support a finding of a close and intrinsic
relationship between cocktail lounges and restaurants. Specifically, the evidence
shows that these services may be provided by the same entity at a hotel, and, as
defined, a cocktail lounge may be within a restaurant. The Examining Attorney
submitted Internet evidence showing 6 different entities advertising bar or cocktail
lounge services, as well as restaurant services.6 For example, the Rosewood Mansion
on Turtle Creek (providing “accommodation . . . dining . . .” in Texas) advertises itself
as the location for “The Mansion Restaurant” and “The Mansion Bar,” with the latter
touted as “the bar pays homage to its Texas heritage with Southern décor and a

4 We take judicial notice of the definition from Dictionary.com (www.dictionary.com), based
on the RANDOM HOUSE UNABRIDGED DICTIONARY, Random House, Inc. (2020). 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).
5 Definition from Merriam-Webster online dictionary (www.merriam-webster.com), based
on MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY, ELEVENTH EDITION.
6 Attached to Office Actions issued on February 28, 2019 and September 12, 2019.
Serial No. 87860519
- 5 -
vibrant ambiance of a refined private club.”7 The Mansion Bar provides “an elevated
bar menu . . . ensuring that the beverages and cuisine offered thoughtfully
complement one another.”8 Likewise, the Hotel Jerome website advertises two bars
(the “Bad Harriet” and “J-Bar”), both of which feature “craft cocktails” or “vintage-
inspired cocktails.”9 These two bars at the Hotel Jerome also provide restaurant
services, offering “small plates” and “Aspen’s best burger.”10 One more example is
from the “1 Hotel Brooklyn” website that advertises its own “Harriet’s Rooftop &
Lounge” as an “old-fashioned cocktail lounge” with a bar “stocked with fresh and
seasonal ingredients alongside some of the finest and approachable spirits.”11 The 1
Hotel Brooklyn website also advertises its “farm-to-table cuisine . . . at our unique
dining venues,” that include Harriet’s Rooftop & Lounge.12
The Examining Attorney also attached copies of more than 20 use-based, third-
party registrations -- each registration covers cocktail lounge and restaurant
services.13 These use-based registrations are probative because they show that the
involved services are the type which may emanate from a single source under the
same mark. See In re RiseSmart, Inc., 104 USPQ2d 1931, 1934 (TTAB 2012) (citing
In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993)).

7 Office Action dated February 28, 2019, at TSDR pp. 20-22.
8 Id. at 22.
9 Id. at 11-16.
10 Id. at 12.
11 Office Action dated September 12, 2019, at TSDR pp. 9-26.
12 Id. at 13-14.
13 Id. at 47-103.
Serial No. 87860519
- 6 -
In sum, in addition to an intrinsic relationship existing between these services
based on cocktail lounges sometimes located within a restaurant and both services
involving the provision of drinks within a sit-down establishment, the record
sufficiently shows that these services may be offered at single physical location, e.g.,
a hotel, and offered by the same entity under the same mark. Our finding is also in
line with previous determinations regarding the same services. See, e.g., In re Jack
B. Binion, 93 USPQ2d 1531, 1535-36 (TTAB 2009) (bar services closely related to
restaurant services).
Accordingly, the second DuPont factor weighs in favor of finding confusion likely.
B. The Trade Channels and Classes of Consumers
The evidence and dictionary definitions show that consumers may encounter
cocktail lounges and restaurants in the same location, e.g., the cocktail lounge may
be either within a restaurant or within the same hotel as a restaurant. In the latter
example, both services may be advertised on the hotel’s website. This demonstrates
at least one common trade channel for these services. Moreover, cocktail lounge and
restaurant services are offered to the same class of consumers, members of the public,
at the same time or in the same evening. For example, patrons may have a pre-dinner
drink at a cocktail lounge followed by dinner with drinks at a restaurant, and the
likelihood of this scenario is compounded by convenience should the cocktail lounge
be within the same hotel as the restaurant or even inside the restaurant itself.
Applicant relies on extrinsic evidence in arguing that the respective particular
services of Applicant and Registrant cater to very different classes of consumers and
Serial No. 87860519
- 7 -
are geographically distant from one another. Specifically, Applicant argues that it
uses its mark “in connection with a reservation-only rooftop cocktail lounge atop a
five-star hotel in Charleston, South Carolina called The Dewberry.”14 Applicant goes
on to describe its venue as a lounge that operates “exclusively in the evenings,
employs a dress code, and prohibits children under the age of 21 from entering.”15
Applicant asserts that Registrant, in contrast, uses its mark “in connection with its
sole store-front physical location in Rancho Cucamonga, California . . . focused on
hand-crafted, healthy meal options . . . [and] is also open during the day, closes at
8:00 pm on Monday through Saturday, does not feature a dress code, and allows
children.”16
Applicant’s arguments, or the evidence submitted in support, do not persuade us
that the services, as they are described in the recitations of the application and cited
registration, are different. Simply put, the limitations or restrictions on the types and
ages of consumers, geographic location, hours of opening, etc. are not reflected in the
identification of services in the application or cited registration, so the arguments
based on such non-existing restrictions are not persuasive. We “have no authority to
read any restrictions or limitation into the registrant’s description,” In re I-Coat Co.,
126 USPQ2d 1730, 1739 (TTAB 2018) (quoting In re Thor Tech, Inc., 90 USPQ2d
1634, 1638 (TTAB 2009)), nor may Applicant “restrict [their] scope . . . by argument

14 4 TTABVUE 11.
15 Id. at 12.
16 Id.
Serial No. 87860519
- 8 -
or extrinsic evidence.” Id. (citations omitted). Moreover, Applicant “seeks a
geographically unrestricted registration under which it might expand throughout the
United States,” Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218
USPQ 390, 393 (Fed. Cir. 1983), and the cited registration is geographically
unrestricted, which presumptively gives the 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). Put differently, we must assume that
Applicant’s and Registrant’s unrestricted recitations of services encompass exclusive
and casual cocktail lounges and restaurants offered throughout the country,
including in proximity to one another.
Accordingly, the third DuPont factor also weighs in favor of likely confusion.
C. Similarity of the Marks
We now compare the marks “in their entireties as to appearance, sound,
connotation and commercial impression.” Palm Bay Imps. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005) (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, LLC,
126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812
(TTAB 2014)). We assess 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 services offered under the respective
Serial No. 87860519
- 9 -
marks is likely to result. Coach Servs., 101 USPQ2d at 1721; see also Edom Labs. Inc.
v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012).
Here, we find Applicant’s mark, CITRUS CLUB, and the registered mark,
CITRUS KITCHEN, similar because both marks begin with the same term CITRUS
followed by a single highly descriptive or generic term that has been disclaimed. The
fact that CITRUS appears first makes the marks visually and aurally similar.
CITRUS is also the more distinctive term of the marks and, as the initial element, is
more likely to be noticed or remembered by consumers. Palm Bay, 73 USPQ2d at
1692 (“Veuve” is the most prominent part of the mark VEUVE CLICQUOT because
“veuve” is the first word in the mark and the first word to appear on the label); Presto
Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often
the first part of a mark which is most likely to be impressed upon the mind of a
purchaser and remembered”).
In terms of the marks’ connotations and commercial impressions, our analysis is
based on a comparison of the entire marks, not just part of the marks. Stone Lion
Capital Partners, 110 USPQ2d at 1161; In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). See also Franklin Mint Corp. v. Master Mfg. Co., 667
F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not
be dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). However, we note that the primary
connotation of each mark is dictated by the initial, more distinctive term, CITRUS,
rather than the marks’ secondary terms, CLUB and KITCHEN. That is, because the
Serial No. 87860519
- 10 -
latter terms are descriptive, they have less source-identifying significance for
purposes of distinguishing marks in likelihood of confusion determinations. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000) (“Regarding descriptive terms, this court has noted that the ‘descriptive
component of a mark may be given little weight in reaching a conclusion on the
likelihood of confusion.’”) (quoting In re Nat’l Data, 224 USPQ at 751). To the extent
that the term CITRUS may be suggestive in the context of cocktail lounge and
restaurant services, i.e., suggesting a citrus fruit ingredient in food or drinks being
served, this same meaning would be conveyed by the two marks.
Ultimately, given the strong resemblance in sound and appearance due to the
shared term CITRUS, as well as the marks’ overall similar connotations and
commercial impressions, we find Applicant’s mark is similar to Registrant’s mark.
Accordingly, this DuPont factor also weighs in favor of likely confusion.
D. Weakness of the Common Element CITRUS
“In determining the strength of a mark, we consider both its inherent strength
based on the nature of the mark itself and its commercial strength, based on the
marketplace recognition value of the mark.” Am. Lebanese Syrian Associated
Charities Inc. v. Child Health Research Institute, 101 USPQ2d at 1028 (citing Tea
Board of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006) and
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:83 (4th ed.
2011) (“The first enquiry focuses on the inherent potential of the term at the time of
its first use. The second evaluates the actual customer recognition value of the mark
Serial No. 87860519
- 11 -
at the time registration is sought or at the time the mark is asserted in litigation to
prevent another's use.”)).
Applicant argues that “the terms in the cited registrations (CITRUS and
KITCHEN) are quite common and weak terms, and therefore the cited registrations
are entitled to a limited scope of protection.”17 In its brief, Applicant claims there are
“nine registrations on the federal registry that feature the term CITRUS in Class 43,”
and Applicant specifically identifies the following 4 registered and applied-for marks
as relevant: CITRUS SITTERS (Reg. No. 5762166); CITRUS PEAR and design (Reg.
No. 5572977); and POLLO TROPICAL CITRUS MARINATED CHICKEN and design
(two marks subjects of Serial Nos. 87918239 and 87918227, that have been approved
for publication).18 Applicant also asserts that “there are also thirty-two registrations
on the federal registry that feature the term CITRUS in connection with food,
restaurant, or bar services” and the fact that “these registrations coexist on the
federal registry demonstrates that CITRUS is a weak term, and therefore, the cited
registrations are entitled to a limited scope of protection.”19
Upon review of Applicant’s third-party registration evidence, we find Applicant’s
characterization of the evidence is inaccurate and the evidence wholly inadequate for
purposes of demonstrating a degree of weakness of the term CITRUS in connection
with restaurant services. None of the third-party registrations for marks containing

17 4 TTABVUE 4.
18 Applicant submitted copies of third-party registrations and applications with its response
filed August 15, 2019, at TSDR pp. 24-144.
19 Id. at 5.
Serial No. 87860519
- 12 -
CITRUS cover restaurant services. Indeed, approximately 20 of the registrations are
for goods or services that are totally unrelated to restaurants, or the provision of food
or drink, services. See Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d
1315, 128 USPQ2d 1686 (Fed. Cir. 2018) (error to rely on third-party evidence of
similar marks for dissimilar services, as Board must focus “on goods [or services]
shown to be similar”); In re i.am.symbolic, llc, 123 USPQ2d at 1751 (disregarding
third-party registrations for goods in other classes where the proffering party “has
neither introduced evidence, nor provided adequate explanation to support a
determination that the existence of I AM marks for goods in other classes, … support
a finding that registrants’ marks are weak with respect to the goods identified in their
registrations”). For example, the registration for CITRUS SITTERS that Applicant
specifically identifies in its brief is for “Child care; Child care services; Day-care
centers; Nurseries and day care centers; Providing child care for children; Providing
day care centers for children.” Other third-party registrations cover irrelevant goods
and services, such as personal care products, insurance and education services,
protective wax coatings, plant food, etc.
The CITRUS PEAR and design registration does involve “food preparation
services featuring fresh, properly proportioned, healthy meals designed to fuel
metabolism and burn fat,” but these are “made to order for delivery or pick up” and
not served on location. With respect to the two approved applications for the POLLO
TROPICAL CITRUS MARINATED CHICKEN marks, we note that CITRUS is used
as part of descriptive phrase CITRUS MARINATED CHICKEN and has been
Serial No. 87860519
- 13 -
disclaimed. Regardless, third-party applications are evidence only of the fact that
they have been filed, and have no probative value. In re Toshiba Med. Sys. Corp., 91
USPQ2d 1266, 1270 n.8 (TTAB 2009); In re Fiesta Palms LLC, 85 USPQ2d 1360, 1365
n.7 (TTAB 2007). We note a handful of registrations cover food; however, the term
CITRUS is also used descriptively in the marks and has been disclaimed, e.g., ICP
INTERNATIONAL CITRUS & PRODUCE FAMILY OWNED (Reg. 4612085) for
fresh fruit and vegetables, with a disclaimer of INTERNATIONAL CITRUS &
PRODUCE and FAMILY OWNED.
There is also no evidence of record showing commercial use of any third-party
marks that contain the term CITRUS.
In sum, although there may be a suggestive meaning to the term CITRUS in
connection with cocktail lounge and restaurant services, as discussed supra, we do
not find this term to be commercially weak or so inherently weak as to allow the
registration of Applicant’s mark. Accordingly, the DuPont factor regarding weakness
is neutral in our likelihood of confusion analysis.
II. Conclusion
Because the marks are similar, and there is an intrinsic and demonstrated close
relationship between Applicant’s cocktail lounge services and Registrant’s restaurant
services, and these services may be found in the same channels of trade being offered
to the same classes of consumers, we find that use of Applicant’s mark CITRUS CLUB
is likely to cause confusion with Registrant’s mark CITRUS KITCHEN.
Decision: The refusal to register Applicant’s mark is affirmed.