Culinary Entertainment, Inc.

Trademark Trial and Appeal Board

Mar 12, 2013

No. 85131684 (T.T.A.B. Mar. 12, 2013)

Mailed: March 12, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
________

In re Culinary Entertainment, Inc.
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Serial No. 85131684
_______

Janine Guzman of Pietrantoni Mendez & Alvarez LLC for
Culinary Entertainment, Inc.

Tasneem Hussain, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
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Before Kuhlke, Wellington, and Masiello, Administrative
Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Culinary Entertainment, Inc. filed an application to
register the following mark:

THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 85131684
2
for use on “children's educational toys for developing fine
motor, oral language, numbers, counting, colors and
alphabet skills sold in a fabric bag which has a clear
vinyl window for viewing small trinkets and toys securely
contained within the bag itself; Children's multiple
activity toys; Electric action toys; Electronic action
toys; Electronic learning toys; Pull toys; Push toys;
Stacking toys; Toy tools; Toy vehicles” in International
Class 28.1 The application includes the following
statement: “The English translation of petit in the mark
is small.”2
The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C.
§1052(d), on the ground that applicant’s mark, when applied
to applicant’s goods, so resembles the previously
registered mark LIL’ GARDENER for “toys, namely toy garden

1 Application Serial No. 85131684, filed September 16, 2010,
based on a bona fide intent to use the mark in commerce. The
application also covers goods in International Class 25, but the
refusal of registration that is subject of this appeal proceeding
does not involve this class of goods.
2 The application also contains the following description of the
mark: The mark consists of the word "PETIT" with each letter in
the following colors: shocking pink, green, blue, red, and
yellow; the word "GARDENER" in green with black outlining; a
design of a yellow daisy with a red center with black spots, a
green stem and leaves, and a blue flowerpot to the left of the
wording.
Serial No. 85131684
3
tools and playsets comprised of toy garden tools” in
International Class 28 as to be likely to cause confusion.3
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis,
however, two key considerations are the similarities
between the marks and the similarities between the goods
and/or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See
also In re Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d
1531 (Fed. Cir. 1997).
We turn our attention first to any similarity of the
goods. It is well settled that the question of likelihood
of confusion must be determined based on an analysis of the
goods recited in applicant’s application vis-à-vis the
goods identified in the cited registration. In re Shell

3 Registration No. 1958662, issued February 27, 1996, and
renewed.
Serial No. 85131684
4
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 n.4 (Fed. Cir.
1993); and Canadian Imperial Bank v. Wells Fargo Bank, 811
F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992). Furthermore,
likelihood of confusion may be found based on any item that
comes within the identification of goods in the involved
application or registration. Tuxedo Monopoly, Inc. v.
General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981).
Applicant’s identification of goods includes
“Children’s multiple activity toys;...Pull toys;...Push
toys;...Toy tools” and each of these goods can reasonably
be understood as encompassing registrant’s “toy garden
tools and playsets comprised of toy garden tools.” At the
very least, applicant’s “toy tools” and registrant’s “toy
garden tools” are, for purposes of the likelihood of
confusion analysis, legally identical. Further, several
other children’s toys listed in the application are very
closely related to registrant’s goods. The examining
attorney has introduced several use-based third-party
registrations showing the adoption of a single mark for
goods of the type involved herein, namely, registrant’s toy
garden tools and applicant’s “push” and “pull” toys.
Third-party registrations that individually cover different
items and that are based on use in commerce serve to
Serial No. 85131684
5
suggest that the listed goods and/or services are of a type
that may emanate from a single source. See In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993); and In re
Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467 (TTAB 1988).
Thus, to the extent that the goods are not identical, they
are otherwise closely related.
The identity, at least in part, between applicant’s
and registrant’s goods is a factor that weighs heavily
against applicant in the likelihood of confusion analysis.
Even where the goods are not legally identical, we note
they are closely related and the same factor weighs in
favor of finding a likelihood of confusion.
Where identical goods are involved, we must presume
that said goods are sold in the same trade channels to the
same classes of purchasers, including, in this case,
ordinary consumers. Even where not identical, we note the
goods in this proceeding are children’s toys and, without
any further restrictions as to the channels of trade and or
limitation as to the classes of purchasers, it is presumed
these toys will be offered to the same consumers in the
same retail outlets. Accordingly, the factors involving
channels of trade and classes of consumers also favor
finding a likelihood of confusion.
Serial No. 85131684
6
As to the marks, we examine the similarities and
dissimilarities of the marks in their appearance, sound,
meaning, and commercial impression. Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). In situations
such as the present case, where the marks appear in
connection with, at least in part, legally identical goods,
the degree of similarity between the marks that is
necessary to support a finding of likely confusion
declines. Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992).
The marks PETIT GARDENER (stylized with flower in pot
design) and LIL’ GARDENER are similar in meaning and
commercial impression as used in connection with toys.
There is no dispute that the term “petit” is translated
from French into English as “small” or “little.” See
English-French Collins Dictionary (2005).4 Under the
doctrine of foreign equivalents, foreign words from common,

4 We take judicial notice of this translation directly obtained
from the on-line dictionary website. Boston Red Sox Baseball
Club LP v. Sherman, 88 USPQ2d 1581, 1590 n.8 (TTAB 2008) and In
re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). See also,
University of Notre Dame du Lac v. J. C. Gourmet Food Imports
Co., 213 USPQ 594, 596 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983). We further note that “petit” is an
English legal term meaning “lesser; minor,” e.g., a “petit jury.”
The American Heritage Dictionary of the English Language (4th Ed.
2000). However, in the context of toys, the applicable meaning
is simply “small” or “little.”
Serial No. 85131684
7
modern languages are translated into English to determine
similarity of connotation with English words in a
likelihood of confusion analysis. See Palm Bay Import,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73
USPQ2d at 1696. The term LIL’ in registrant’s mark is
equivalent to an informal pronunciation of the word
“little.” See Webster’s Third New International Dictionary
(1993) p. 1323, which explains the pronunciation of
“little” as “sometimes when not heavily stressed (,)lil esp
when a vowel follows.” Upon viewing both marks in
connection with children’s toys, consumers will understand
both marks as evoking a playful gardening theme for small
children or “little gardeners.”
We consider the two relevant marks in their entireties
and, in doing so, do not ignore the stylized colorful
lettering and flower-in-a-pot design found in applicant’s
mark. However, as far as lettering, we must also consider
that registrant’s standard-character mark could be
displayed in any stylization (i.e., any size, color,
typeface, or case) including stylization identical to that
in applicant's mark. Citigroup Inc. v. Capital City Bank
Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-59 (Fed.
Cir. 2011). Moreover, the flower-in-a-pot design plays a
less important role than the literal terms in applicant’s
Serial No. 85131684
8
mark because it is the word portion of the mark that will
be used in referring to the goods. See In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985)
(although the marks must be considered in their entireties,
there is nothing improper, under appropriate circumstances,
in giving more or less weight to a particular portion of a
mark.) Additionally, the flower pot design merely
reinforces the playful or gardening theme for children that
is found in both marks when they are viewed in the context
of children’s toys.
We conclude that the marks are highly similar in
connotation and commercial impression. While the marks
will clearly be spoken and appear different due to the
first term in each mark, as well as applicant’s flower
design, such differences do not outweigh the overall
similarity between them. Thus, when we consider the marks
as a whole, we find them to be similar and resolve the du
Pont factor regarding the similarity of the marks against
applicant.
When we consider the record and the relevant
likelihood of confusion factors, we conclude that, should
potential purchasers encounter the marks PETIT GARDENER
(stylized with design) and LIL’ GARDENER being used on
identical goods, i.e., toy garden tools, and other closely
Serial No. 85131684
9
related toy goods, they are likely to believe that the
sources of these goods are in some way related or
associated. As a result, there is a likelihood of
confusion.
DECISION: The refusal to register the mark under Section
2(d) of the Trademark Act is affirmed.