D’Jeet LLCDownload PDFTrademark Trial and Appeal BoardSep 8, 2017No. 86657379 (T.T.A.B. Sep. 8, 2017) Copy Citation This Opinion is not a Precedent of the TTAB Mailed: September 8, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re D’Jeet LLC _____ Serial No. 86657379 _____ Christopher J. McHattie of The McHattie Law Firm LLC, for D’Jeet LLC. D. Beryl Gardner, Trademark Examining Attorney, Law Office 117, Hellen Bryan Johnson, Managing Attorney. _____ Before Kuhlke, Wellington, and Shaw, Administrative Trademark Judges. Opinion by Shaw, Administrative Trademark Judge: D’Jeet LLC (“Applicant”) seeks registration on the Principal Register of the following mark: Serial No. 86657379 - 2 - for “Restaurant services featuring seasonal farm and garden meats, milk, poultry, seafood and fruits and vegetables all prepared as Italian, French or Asian cuisine,” in International Class 43.1 The application includes the following description of the mark: “The mark consists of the stylized wording ‘D’JEET?’ in the color mauve on a light-grayish green fleur-de-lis design.” The colors mauve and light-grayish green are claimed as a feature of the mark. Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used with the identified services, so resembles the standard character mark JEET? for “Restaurant Services,” in International Class 43,2 as to be likely to cause confusion, mistake or deception. When the refusal was made final, Applicant appealed and requested reconsideration. The Examining Attorney denied the request for reconsideration, and the appeal resumed. Applicant and the Examining Attorney have filed briefs. We affirm the refusal to register. Analysis 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 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 1 Application Serial No. 86657379 was filed under Section 1(a) of the Trademark Act, 15 U.S.C. § 1(a), on June 10, 2015 claiming dates of first use anywhere and in commerce of February 1, 2008. 2 Registration No. 3605982, issued April 14, 2009; combined Sections 8 and 15 affidavit accepted and acknowledged. Serial No. 86657379 - 3 - likelihood of confusion analysis, two key considerations are the similarities between the services and the similarities between the marks. See 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 differences in the marks.”). A. The nature and similarity or dissimilarity of the services, the established, likely- to-continue trade channels and classes of purchasers. We first consider the similarity of the services. Both Applicant’s and Registrant’s services are legally identical. Registrant’s “Restaurant Services” cover all types of cuisines, and thus, encompass Applicant’s more narrowly worded “Restaurant services featuring seasonal farm and garden meats, milk, poultry, seafood and fruits and vegetables all prepared as Italian, French or Asian cuisine.” Applicant argues that “its high-end services are vastly different” from those of the Registrant.3 As Applicant explains: JEET?’s services are classified under “Restaurant services” and are primarily associated with South Philly cheesesteaks . . . and other homely comfort foods. Applicant, on the other hand . . . seeks to register its mark D’JEET? for use with the more sophisticated “Restaurant services featuring seasonal farm and garden meats, milk, poultry, seafood and fruits and vegetables all prepared as Italian, French or Asian cuisine.”4 This argument is unpersuasive. It is well settled that in making our determination, we must look to the services as identified in the application vis-à-vis those recited in the cited registration. Octocom Sys., Inc. v. Houston Computers Servs. 3 Applicant’s Br., p. 13, 7 TTABVUE 14. 4 Id. Serial No. 86657379 - 4 - Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application regardless of what the record may reveal as to the particular nature of an applicant’s goods, the particular channels of trade or the class of purchasers to which the sales of goods are directed.”). Accordingly, we find that Applicant’s and Registrant’s services are legally identical. Where Applicant’s and Registrant’s services are identical, we must presume that the channels of trade and classes of purchasers for those services are the same as well. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the channels of trade and classes of purchasers are considered to be the same). The du Pont factors relating to the similarity of the services, channels of trade, and classes of purchasers favor a finding of likelihood of confusion. B. The similarity or dissimilarity of the marks in their entireties in terms of appearance, sound, connotation and commercial impression. Next, we consider the similarity of the marks. In comparing the marks we must consider their 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 emphasis of our analysis must be on the recollection of the average purchaser who normally retains a general, rather than Serial No. 86657379 - 5 - specific, impression of trademarks. Although we consider the mark as a whole, “in articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark.” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Additionally, “when the goods [or services] at issue are identical, ‘the degree of similarity necessary to support a conclusion of likely confusion declines.’” Viterra, 101 USPQ2d at 1912 (quoting Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992)). Applicant’s mark is comprised of the words D’JEET? “in the color mauve on a light-grayish green fleur-de-lis design.” Although we must consider the mark in its entirety, we find the wording D’JEET? to be the most dominant portion of Applicant’s mark. This is the only wording in the mark and appears above the fleur-de-lis design. The fleur-de-lis design is less dominant because when a mark comprises both wording and a design, greater weight is given to the wording. It is the wording that purchasers generally use to refer to or request the goods or services. See Viterra, 101 USPQ2d at 1908; CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198 (Fed. Cir. 1983). Registrant’s mark is JEET? in standard characters. Here, we find the marks are very similar for several reasons. In terms of their meaning or connotation, the marks share the same commercial impression because they will likely be understood by consumers, in the context of restaurant services, to mean “did you eat?” The Urban Dictionary defines both spellings as slang Serial No. 86657379 - 6 - contractions of “did you eat?”5 Information provided on Applicant’s catering web page confirms Applicant’s use of the same meaning: “‘D’JEET?’ ASKED GRANDPA to everyone who walked through his door in hopes of sharing a homecooked meal, a token of his love.”6 Several of the Google search engine summaries made of record also confirm this meaning: 7 8 9 Regarding similarity in sound, because both marks are a contraction of the phrase “did you eat?” they will likely be pronounced in a very similar, if not identical, manner. That is, the “D” in Applicant’s mark it is nearly silent. Thus, it does little to distinguish the pronunciation of the marks, and does not, as Applicant suggests, invoke “exotic locales, exotic foods, exotic elixirs and a foreign ‘air.’”10 5 Http://www.urbandictionary.com/define.php?term=jeet, Office Action of October, 18, 2016, TSDR p. 4. 6 Id. at 9. 7 Applicant’s response of March 3, 2016, TSDR p. 32. 8 Id. at 40. 9 Id. at 50. 10 Applicant’s Br., p. 10, 7 TTABVUE 11. Serial No. 86657379 - 7 - When we consider the marks in their entireties, as we must, we do not find the fleur-de-lis design in Applicant’s mark to be so significant so as overcome the similarity of commercial impression and sound of the word portion of Applicant’s and Registrant’s marks. It is well settled that a standard character mark, such as the cited registered mark, covers all “depictions of the standard character mark regardless of font style, size, or color.” Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011). Thus, we must consider the possibility that the registered mark may be depicted in any font, size, style, or color, including one that approximates the font and colors employed in Applicant’s mark. This du Pont factor weighs in favor of a finding of a likelihood of confusion with respect to the cited registration. C. Conclusion Because the marks are similar, and the services are identical and are offered in the same trade channels to the same classes of consumers, there is a likelihood of confusion between Applicant’s mark, D’JEET? and design, and the mark, JEET?, in the cited registration. Decision: The refusal to register Applicant’s mark under Section 2(d) of the Lanham Act is affirmed. Copy with citationCopy as parenthetical citation