Forage Holdings LLC

Trademark Trial and Appeal Board

Jul 2, 2021

87561681 (T.T.A.B. Jul. 2, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: July 2, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Forage Holdings LLC
_____

Serial No. 87561681
_____

Hadi S. Al-Shathir of Thompson Coburn LLP,
for Forage Holdings LLC.
J. Brendan Regan, Trademark Examining Attorney, Law Office 113,
Myriah Habeeb, Managing Attorney.
_____

Before Zervas, Shaw and Goodman,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Forage Holdings LLC (“Applicant”) seeks registration on the Principal Register of
the mark FORAGE KITCHEN, in standard characters, for “restaurant services” in
International Class 43.1 Applicant disclaims the term KITCHEN apart from the
mark.

1 Application Serial No. 87561681 was filed under Section 1(a) of the Trademark Act, 15
U.S.C. § 1051(a), on August 9, 2017, claiming a date of first use anywhere and in commerce
of October 12, 2015.
Serial No. 87561681
- 2 -
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 mark PHORAGE for “bar and 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. The case is fully briefed.
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., 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 any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the services. 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 [or services] and differences in the marks.”).

2 Registration No. 5543376, issued August 21, 2018.
Serial No. 87561681
- 3 -
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 respective services. Both Applicant’s and
Registrant’s services identify restaurant services. Applicant does not argue that the
services are not the same. We find that Applicant’s and Registrant’s services are in
part identical. Registration must be refused if Applicant’s mark for any of its
identified services is likely to cause confusion with the Registrant’s mark for any of
its identified services. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d
1335, 209 USPQ 986, 988 (CCPA 1981); In re Aquamar, Inc., 115 USPQ2d 1122, 1126,
n.5 (TTAB 2015) (“[I]t is sufficient for finding a likelihood of confusion if relatedness
is established for any item encompassed by the identification of goods [or services]
within a particular class in the application.”).
Moreover, when an applicant’s and a registrant’s services are identical, we must
presume that the channels of trade and classes of purchasers for those services are
the same. 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
purchasers, the Board was entitled to rely on this legal presumption in determining
likelihood of confusion). We so presume here, and find that purchasers of restaurant
services include members of the general public.
The du Pont factors relating to the similarity of the services, the channels of trade
and classes of purchasers favor a finding of likelihood of confusion.
Serial No. 87561681
- 4 -
B. The number and nature of similar marks for similar services
Before reaching the degree of similarity of the marks, we address Applicant’s
evidence and argument under the sixth DuPont factor, “[t]he number and nature of
similar marks in use on similar goods [or services],” DuPont, 177 USPQ at 567, as
this may impact the scope of protection accorded the cited registration. The Federal
Circuit has held that evidence of the extensive registration and use of similar marks
by others in the field can be powerful evidence of a mark’s weakness. Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797 F.3d 1363,
116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC,
794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). The strength of a mark may
be assessed based on its conceptual strength arising out of the nature of the mark
itself and its commercial strength, derived from the marketplace recognition of the
mark. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed.
Cir. 2010).
Of course, because Registrant’s mark is registered, it is presumptively valid and
distinctive for the identified services. Trademark Act Sections 7(b) and 33(a), 15
U.S.C. §§ 1057(b) and 1115(a); In re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 (TTAB
2007). Nonetheless, we may acknowledge the weakness of a registered mark in the
course of a DuPont analysis. In re Fat Boys Water Sports LLC, 118 USPQ2d 1511,
1517-18 (TTAB 2016).
The Examining Attorney argues, in part, that “[c]onsumers encountering the term
PHORAGE are likely to be immediately struck by the commercial impression of
Serial No. 87561681
- 5 -
“forage” staring them in the face[.]”3 That is, because the marks sound similar,
“consumers would at least also understand the FORAGE connotation” in both marks.4
Applicant, while arguing that the marks differ in commercial impression because
“‘PHO’ is the distinct name of a popular Vietnamese soup,”5 nevertheless argues that
because the Examining Attorney finds that PHORAGE and the FORAGE element of
FORAGE KITCHEN are similar, “[t]he Trademark Office must therefore consider
evidence of third party uses of FORAGE on similar goods and services, for the purpose
of determining scope of protection for the cited mark.”6 Hence, Applicant argues that
“[t]he term ‘FORAGE’ and its close variants are in widespread use in connection with
restaurant services, and food and beverage preparation and distribution services and
products, thus making the mark PHORAGE weak.”7
“Forage” is defined as “the act of foraging” or to “search for provisions.”8 Similarly,
“foraging” is defined as “to wander in search of forage or food.”9 In support of its
position that the cited mark is weak and entitled only to a limited scope of protection,

3 Examining Attorney’s Br., 8 TTABVUE 8.
4 Final Office Action of May 14, 2019, TSDR p. 1.
5 Applicant’s Br., p. 2, 6 TTABVUE 3; Merriam-webster.com, Applicant’s response to Office
Action dated September 25, 2018, TSDR p. 5.
6 Applicant’s Br., p. 5, 6 TTABVUE 6.
7 Id. at 3, 6 TTABVUE 4.
8 Merriam-webster.com, Applicant’s response to Office Action dated September 25, 2018,
TSDR p. 10.
9 Id.
Serial No. 87561681
- 6 -
Applicant introduced printouts from the following internet web pages for restaurants
or food service businesses using the term FORAGE in their names.10
 Foragecambridge.com, describing a restaurant in Cambridge
Massachusetts called FORAGE. The website states: “Forage is a
neighborhood bistro in Cambridge right outside of Harvard Square.
Through partnerships with local farmers, fishermen, and foragers we offer
a local, seasonal ingredient-driven menu served in a casual setting.”
 Foragela.com, featuring a restaurant called FORAGE with the tag line
“visit | eat | connect” and offering lunch and dinner.
 Forageandlounge.com, featuring information about the Forage Bistro
and Lounge.
 Foragepublichouse.com, featuring information about the Forage Public
House restaurant in Lakewood Ohio.
 Freshforage.com, featuring information about a restaurant called Fresh
Forage, featuring foods characterized as “Farm to Table, Fast!”
 Foragemarket.com, featuring information about a food establishment
called FORAGE selling bagels.
 Frothandforage.com, featuring information about a “Coffeehouse and
Eatery” called FROTH & FORAGE offering breakfast, lunch and dinner,
with food sourced from “Local Farmers.”

10 Applicant’s Response to Office Action dated April 24, 2019, TSDR pp. 4-13; Applicant’s
request for Reconsideration dated November 30, 2020, TSDR pp. 9-10.
Serial No. 87561681
- 7 -
 Foragersmarket.com, featuring information about a restaurant called
FORAGERS.
 Foragerbrewery.com, featuring information about a “scratch Kitchen &
Brewery” called the FORAGER BREWERY.
 Urbanforagewinery.com, featuring information about a “winery and
cider house” called URBAN FORAGE WINERY.
 Foragedrestaurant.com, featuring a Denver restaurant called
FORAGED offering food and beverages to “EAT DRINK TAKE OUT”.
 Sokolblosser.com, featuring information about a “FARM AND FORAGE”
food and wine tasting experience. The web site states: “Following our ‘good
to the earth’ motto, we source from local purveyors and also forage on our
property, often finding mushrooms, nettles, salad greens, and more. Our
chef, Travis Bird, creates a 6-course tasting menu to provide a culinary
experience you won’t forget.”
Applicant also submitted copies of a number of third-party registrations issued to
different entities for FORAGE-formative marks identifying restaurant and food
preparation services, as well as for a variety of food products. The following
registrations are several of the registrations submitted by Applicant:11
Mark Reg. No. Relevant Services/Goods
FORAGERS TABLE 4703525 Restaurant services
FRESHFORAGE (in standard
characters and stylized)
5756619 and
5751244
Restaurant services

11 Applicant’s request for Reconsideration dated November 30, 2020, TSDR pp. 18-21, 25-37,
47-50, 54-56, 60-67, 77-80. All marks issued on the Principal Register unless noted.
Serial No. 87561681
- 8 -
Mark Reg. No. Relevant Services/Goods
FORAGE SOUTH 5438072 Food preparation services
FARMERS & FORAGERS 4689359 Dried and processed
legumes, mushrooms,
truffles, fruit, nuts, seeds,
peppers, and vegetables
FORAGED & FOUND 5931960 Jellies and jams; pickles;
pickled and preserved
vegetables
FORAGER 4514448 Granola
FORAGER PROJECT 4582966 Vegetable and fruit
beverages; nut-based food
beverages
FREE AND FORAGED
(Supplemental Register)
5532102 Eggs

In addition, Applicant also submitted internet web pages excerpts regarding the
trend of foraging for food. The following examples are representative:12
 Notastelikehome.org/forage-to-table, featuring information about a
business called NO TASTE LIKE HOME offering foraging food tours. The
web site states: “Our tours include two ways of enjoying your ‘catch of the
day.’ Our foraging and private tours include a brief cooking lesson and
tasting, and all tours include a free appetizer with dinner at one of several
Asheville restaurants featuring the edibles you met on your tour.”
 Foragedandfoundedibles.com, featuring information about a business
called FORAGED & FOUND EDIBLES selling foraged foods, such as
mushrooms.

12 Applicant’s request for Reconsideration dated November 30, 2020, TSDR pp. 5, 7, 101-14.
Serial No. 87561681
- 9 -
 Ice.edu/blog/quick-guide-to-foraging, featuring a Quick Guide to
Foraging prepared by the Institute for Culinary Education. The website
states: “Foraging has gained popularity in the last decade as the movement
for fresh and sustainable ingredients has grown. While many chefs
nowadays use suppliers or farmers markets to find the perfect ingredients
for their restaurant, foraging can be a great way to bring new ingredients
to their kitchens.”
 Foodtank.com, featuring an article titled Chefs are Going Back to their
Roots for Local, Sustainable Foraged Foods. The article highlights twenty-
one chefs who serve foraged ingredients, and states:
Chefs around the world are using foraged
ingredients to add exciting, fresh, and eco-friendly
flavors to their menus. By searching for herbs,
fruits, and roots from the wild, they create fresh,
flavorful dishes. They also champion sustainable
practices, indigenous produce, and a sense of
adventure. Ultimately, these foraging chefs bring
diners unique experiences closer to nature.
We find that the foregoing evidence establishes that FORAGE-formative marks
are both conceptually and commercially weak and, therefore, are entitled to a narrow
scope of protection.
Regarding conceptual strength, the fact that FORAGE-formative marks have
been registered by different restaurants and food preparation services indicates that
FORAGE in this context suggests food that is wild-harvested and fresh. Similarly,
the articles discussing the trend of chefs using foraged ingredients demonstrate that
the term “forage” is descriptive when used in connection with collecting food in the
Serial No. 87561681
- 10 -
wild. The dictionary definition of “forage” further supports the concept that food can
be “wild-collected.” Thus, we agree with Applicant that FORAGE-formative marks
have conceptual weakness in association with restaurant services. See Juice
Generation, 115 USPQ2d at 1675 (third-party registrations alone may be relevant, in
the manner of dictionary definitions, “to prove that some segment of the [marks] has
a normally understood and well recognized descriptive or suggestive meaning,
leading to the conclusion that that segment is relatively weak.”) (internal quotation
marks omitted). See also Jack Wolfskin, 116 USPQ2d at 1136.
Regarding commercial strength, the evidence establishes that it is common for
restaurant names to comprise or incorporate FORAGE-formative terms. As noted
above, these restaurants emphasize food made from fresh ingredients, sourced
locally. The number of third-party marks used in connection with restaurants is
“powerful” evidence that consumers encountering marks in the restaurant field have
become conditioned to distinguish marks incorporating FORAGE-formative terms
based on minute differences including the addition of terms such as “lounge,” “public
house,” “brewery,” “market,” etc. Juice Generation, 115 USPQ2d at 1674 (extensive
third-party use and registration is “powerful on its face”); In re Broadway Chicken
Inc., 38 USPQ2d 1559, 1565-66 (TTAB 1996) (“Evidence of widespread third-party
use, in a particular field, of marks containing a certain shared term is competent to
suggest that purchasers have been conditioned to look to other elements of the marks
as a means of distinguishing the source of the goods or services in the field.”).
Serial No. 87561681
- 11 -
The Examining Attorney discounts Applicant’s evidence of third-party use on the
grounds that the web page excerpts provide “no indication whether federally-
registered trademark protection, the primary objective of this or any application, is
held or was even sought by the parties.”13 This argument is unpersuasive. Examples
of third-party use indicate whether a mark or portion of a mark is commercially weak.
In Juice Generation, the Court reiterated that evidence of third-party use of similar
marks on similar goods (or services) can show that a mark is relatively weak and
entitled to a narrow scope of protection. Juice Generation, 115 USPQ2d at 1674. The
Court went on to say that despite the lack of specifics as to the extent and impact of
third-party use, the “fact that a considerable number of third parties use similar
marks was shown in uncontradicted testimony.” Id. See also Rocket Trademarks Pty
Ltd. v. Phard S.p.A., 98 USPQ2d 1066, 1072 (TTAB 2011) (stating internet printouts
“on their face, show that the public may have been exposed to those internet websites
and therefore may be aware of the advertisements contained therein”). Thus, the
evidence regarding third-party use of FORAGE-formative marks is relevant
regardless of whether registration was sought.
The Examining Attorney also discounts Applicant’s use and registration evidence
on the ground that much of the evidence relates to food products and other food-
related services rather than restaurant services. As noted above, the evidence
includes third-party use of and registrations for FORAGE-formative marks for
products such as dried fruits and vegetables, jellies and jams, eggs, and the like. In

13 Examining Attorney’s Br., 8 TTABVUE 6.
Serial No. 87561681
- 12 -
the absence of evidence demonstrating how consumers would encounter these
FORMATIVE-branded goods in the restaurant context, we have not considered them.
See In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017)
(disregarding third-party registrations for other types of goods where the proffering
party had neither proven nor explained that they were related to the goods in the
cited registration).
Nevertheless, because the majority of the evidence shows that consumers have
been exposed to numerous FORAGE-formative marks used in association with
restaurants, we find that the minute differences between these marks are sufficient
to distinguish them. See Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005). (“The
purpose of [an applicant] introducing third-party uses is to show that customers have
become so conditioned by a plethora of such similar marks that customers have been
educated to distinguish between different such marks on the bases of minute
distinctions.”). Accordingly, the sixth du Pont factor concerning the strength (or in
this case, the weakness of the term FORAGE) supports a finding that confusion is
unlikely with regard to the cited registration for the mark PHORAGE for restaurant
services.
C. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.
Next, we consider the similarity or dissimilarity of the marks. In comparing the
marks we must consider their appearance, sound, connotation and commercial
impression. Palm Bay, 73 USPQ2d at 1692. The emphasis of our analysis must be on
Serial No. 87561681
- 13 -
the recollection of the average purchaser who normally retains a general, rather than
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). Moreover, “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)).
To recap, Applicant’s mark is FORAGE KITCHEN and the cited mark is
PHORAGE. Both marks are in standard character form. Applicant argues that
“PHORAGE is a coined term that is a play on the trendiness of the Vietnamese soup,
PHO. As established in the evidence of record, PHO is ‘all the rage.’”14 Applicant
argues that this difference in meaning is sufficient to distinguish the marks:
“PHO” is the distinct name of a well-known Vietnamese
soup, which is not disputed. In view of the PHO element,
consumers will see, pronounce and understand PHORAGE
to mean something different than simply “forage.” This
material difference, combined with the presence of
KITCHEN in the FORAGE KITCHEN mark, are sufficient
to distinguish the marks, especially when properly viewed
in the context of the relevant landscape of uses and
registrations of FORAGE.15

14 Applicant’s Br., p. 14, 6 TTABVUE 15; Applicant’s response to Office Action dated
September 25, 2018, TSDR pp. 5-8, 13-19.
15 Applicant’s Reply Br., p. 4, 9 TTABVUE 5.
Serial No. 87561681
- 14 -
The Examining Attorney argues that “consumers are more likely to focus on the
dominant portion in applicant’s mark, FORAGE, and because this dominant portion
is the phonetic equivalent of the entirety of registrant’s mark, the marks create a
similar commercial impression and are therefore confusingly similar.”16
We agree with the Examining Attorney that FORAGE and PHORAGE will likely
be pronounced the same. Such similarity in sound alone may be sufficient to support
a finding that the compared wording is confusingly similar. However, as we found
above, FORAGE is weak for restaurant services and consumers are able to
distinguish among numerous FORAGE restaurants based solely on the presence of
additional wording such as “lounge,” “public house,” “brewery” and “market.” Thus,
the fact that FORAGE in FORAGE KITCHEN and PHORAGE may be pronounced
the same is not enough to find that the mark are sufficiently similar to support a
finding of likely confusion. Rather, given that FORAGE KITCHEN and PHORAGE
have different meanings—PHO is the name of a well-known Vietnamese soup and
FORAGE means to search for food—we think it likely that consumers would be able
to distinguish the marks based on these significantly differing meanings.
Accordingly, we find that the similarity of the marks is a factor that does not weigh
in favor of a finding of likelihood of confusion.
D. Registrant’s statements regarding likelihood of confusion
Applicant claims that Registrant has admitted that confusion is unlikely between
PHORAGE and FORAGE marks based on statements made during the prosecution

16 Examining Attorney’s Br., 8 TTABVUE 9.
Serial No. 87561681
- 15 -
of the application underlying the cited registration. We consider this argument under
the thirteenth DuPont factor which encompasses “[a]ny other established fact
probative of the effect of use.” DuPont, 177 USPQ at 567. Applicant notes that
In response to a Section 2(d) refusal citing a prior
registration for FORAGE for restaurant services in IC 43
(which has since been cancelled), Registrant admitted that
PHORAGE is not likely to be confused with FORAGE,
because “the appearance, sound connotation and
commercial impression of [PHORAGE and FORAGE]
render confusion unlikely.17
In addition, Applicant points to a letter of consent between Registrant and the
owner of a different pending application for the mark FORAGE, also for restaurant
services. The letter of consent states that Registrant “do[es] not believe that there is
any confusion between [PHORAGE and FORAGE], and their respective [restaurant]
services” due to “the significant differences in the marks themselves” and that
“FORAGE and PHORAGE are different and connote different commercial
impressions.”18
The Examining Attorney maintains that Registrant’s statements are “not
relevant, as no such assertions have been made by the registrant with respect to
applicant’s mark in the present proceeding.”19

17 Applicant’s Br., p. 16, 6 TTABVUE 17 (quoting Registrant’s response to an office action
refusing registration in application Serial No 87062283), Applicant’s Request for
Reconsideration of November 30, 2020, TSDR pp. 144-55.
18 Applicant’s Br., pp. 16-17, 6 TTABVUE 17-18; Applicant’s Request for Reconsideration of
November 30, 2020, TSDR pp. 156-64.
19 Examining Attorney’s Br., 8 TTABVUE 10.
Serial No. 87561681
- 16 -
Clearly, Registrant is not a party to this proceeding and has not admitted that
there is no likelihood of confusion between its mark and Applicant’s mark. Rather,
Registrant’s statements are illuminative of shade and tone in the total picture before
us. Calypso Tech. Inc. v. Calypso Capital Mgmt. LP, 100 USPQ2d 1213, 1223 (TTAB
2011) (recognizing that a party’s position in a prior proceeding “is not an admission,
but may be considered only as illuminative of shade and tone in the total picture”);
Anthony’s Pizza & Pasta Int’l Inc. v. Anthony’s Pizza Holding Co., 95 USPQ2d 1271,
1281 (TTAB 2009) (finding a party’s position in a prior proceeding does not “rise to
the level of an admission against interest”). Given our findings on the strength of
FORAGE-formative marks and on the differences in commercial impression, we need
not consider Registrant’s statements. Nevertheless, we note that Registrant’s
statements are consistent with our findings.
E. Conclusion
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play more or less
weighty roles in any particular determination”). Here, although the services are
identical and travel in the same trade channels to the same classes of consumers, the
term FORAGE is weak when used in connection with restaurant services. The
ubiquity of FORAGE in the restaurant industry and the significantly differing
commercial impressions, thus outweighs the identity of the services. Accordingly, we
Serial No. 87561681
- 17 -
find there is no likelihood of confusion between Applicant’s mark, FORAGE
KITCHEN, and the mark, PHORAGE, in the cited registration.

Decision: The refusal to register Applicant’s mark, FORAGE KITCHEN, under
Section 2(d) of the Trademark Act is reversed.