87823978 (T.T.A.B. Aug. 24, 2020)

Gruma, S.A.B. de C.V.

Trademark Trial and Appeal BoardAug 24, 2020

87823978 (T.T.A.B. Aug. 24, 2020)

Mailed: August 24, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Gruma, S.A.B. DE C.V. _____ Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 _____ John M. Cone of Ferguson Braswell Fraser Kubasta PC for Gruma, S.A.B. DE C.V. Matthew Tully, Trademark Examining Attorney, Law Office 105, Jennifer Williston, Managing Attorney. _____ Before Bergsman, Goodman and Larkin, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Gruma S.A.B. DE C.V. (Applicant) seeks registration on the Principal Register for marks in the three applications listed below consisting, in whole or in part, o f the word DEL BARRIO, filed under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), for “tortillas; tostados,” in International Class 30: •Serial No. 87823748 for the mark DEL BARRIO in standard character form; •Serial No. 87823760 for the mark DEL BARRIO and design, reproduced below: This Opinion Is Not a Precedent of the TTAB Precedent of the TTAB PrePrecedent of the TTAB Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 2 - The description of the mark reads as follows: The mark consists of the wording “DEL BARRIO” in stylized font, with “DEL” stacked over “BARRIO”, and an ear of corn protruding from the top of the leftmost “R” in “BARRIO”, which is located below and to the left of the “D” in “DEL” and above and to the right of the “B” in “BARRIO”. To the right and below the wording is a stylized woman holding a tortilla who is sitting down next to a basket of tortillas. All of the foregoing is inside an incomplete circle, with a break in the top left portion, which is completed with the “B” in “BARRIO” and the aforementioned ear of corn. This circle is surrounded by another circle with a border of several overlapping oval or amorphous shaped designs, with an ear of corn superimposed on the middle left hand portion of the outer circle and an ear of corn superimposed on the lower right hand potion of the outer circle. Color is not claimed as a feature of the mark. •Serial No. 87823978 for the mark DEL BARRIO and design reproduced below: Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 3 - The description of the mark reads as follows: The mark consists of the wording “DEL BARRIO” in stylized font, with “DEL” stacked over “BARRIO” and spikes of wheat placed above and to the left of the “RR” in “BARRIO” and below and to the left of the “D” in “DEL”. To the right and below the wording is a stylized woman holding a tortilla who is sitting down next to a basket of tortillas. All of the foregoing is inside a circle with a break in the top left portion, which is completed with the “B” in “BARRIO” and the aforementioned spikes of wheat. This circle is surrounded by another circle with a border of several overlapping oval designs, with symmetrically oriented spikes of wheat on the lower left and lower right hand potions of the outer circle. Color is not claimed as a feature of the mark. The English translation of DEL BARRIO is “From the Neighborhood.” The Examining Attorney refused to register Applicant’s marks under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s marks for tortillas and tostados so resemble the registered mark COCINA DEL BARIO, in standard character form, for “restaurant and bar services,” in International Class 43, Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 4 - as to be likely to cause confusion.1 The English translation of “Cocina Del Barrio” is “kitchen of the neighborhood.” The Board consolidated the appeals in its March 7, 2018 order.2 References to the prosecution history are to the record in Application Serial No. 87823748 unless otherwise indicated. Citations to the prosecution record are to the USPTO’s Trademark Status and Document Retrieval system (TSDR) in the downloadable .pdf format. I. Applicant’s request for remand. Applicant, in its Reply Brief, submitted the declaration of its attorney with evidence purportedly to corroborate the arguments in Applicant’s Reply Brief.3 In addition, Applicant filed a “Request To Accept Evidence In Support Of Applicant’s Reply Brief.”4 Applicant, Gruma, S.A.B de C.V., requests the Board to accept the Declaration of its Attorney John M. Cone filed herewith to corroborate statements made in its Reply Brief to rebut arguments made by the Trademark Examining Attorney in his Brief, 16 TTABVUE 4, including with respect to the probative effect of the disclaimers of the word KITCHEN in certain existing registration[s] and to authenticate Applicant’s citation to the disclaimer of the word NEIGHBORHOOD in other registrations. 1 Registration No. 3946181 registered April 12, 2011; Sections 8 and15 declarations accepted and acknowledged. 2 15 TTABVUE. 3 Applicant’s Reply Brief, p. 2 (17 TTABVUE 3) (“Applicant relies on the Declaration of its Attorney, John M. Cone, attached as Exhibit A to this Brief (‘Cone Decln.’), to provide proof of the factual allegations made here to rebut statements made in the Examining Attorney’s brief.”). 4 18 TTABVUE. Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 5 - Acceptance of this evidence will not require remand or other delay in this proceeding.5 Trademark Rule 2.142(d) provides, The record in the application should be complete prior to the filing of an appeal. Evidence should not be filed with the Board after the filing of a notice of appeal. If the appellant or the examining attorney desires to introduce additional evidence after an appeal is filed, the appellant or the examining attorney should submit a request to the Board to suspend the appeal and to remand the application for further examination. (Emphasis added). We construe Applicant’s “Request To Accept Evidence In Support Of Applicant’s Reply Brief” as a request to remand because that it is the appropriate and only vehicle for an applicant to submit evidence after an appeal has been filed despite Applicant’s contention that its evidence will not require remand. See In re Zanova Inc., 59 USPQ2d 1300, 1302 (TTAB 2001) (“By attempting to introduce evidence with its reply brief, applicant has effectively shielded this material from review and response by the Examining Attorney.”). Applicant must support its request to remand with a showing of good cause. Requests for remand are generally filed by applicants because they wish to make additional evidence of record, or because they wish to amend the application. Applicants may also request remand so that the examining attorney can consider a refusal in light of a recently decided case or amended Trademark Rule. No matter what the purpose, the request for remand must include a showing of good cause. In determining whether good cause has been shown, the Board will consider both the reason given and the point in the appeal at which the 5 18 TTABVUE 2. Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 6 - request for remand is made. For examples of circumstances that have been found to constitute good cause for a remand for the purpose of submitting additional evidence, see TBMP § 1207.02. (Emphasis added). TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1209.04 (2020). Examples of circumstances that have been found to constitute good cause for a remand for additional evidence include the following: (1) The evidence was not previously available. Even if the evidence was not previously available, good cause may not be found if the newly available evidence is merely cumulative in nature. Thus, if the examining attorney requests remand in order to submit an article which was published subsequent to the filing of the appeal, but which is of substantially the same nature as articles previously made of record, the request may be denied. Nor can the examining attorney use the subsequent publication of a single article to make of record articles which were previously available. Similarly, if the applicant requests remand to make of record its most recent monthly sales or advertising figures in support of a Trademark Act § 2(f),15 U.S.C. § 1052(f), claim, the request may be denied. There is a point at which prosecution or examination must come to an end. (2) A new attorney for the applicant, or a new examining attorney, has taken over the case and wishes to supplement the evidence of record. The transfer of a case from one firm member to another is not considered by the Board to constitute good cause for a remand under the “new attorney” rationale. However, the transfer of the case from in-house counsel to an outside firm is treated as a new attorney taking over the case. Similarly, a different examining attorney being assigned the application is treated as a new attorney taking over the case. (3) The applicant and examining attorney have agreed to the remand. Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 7 - TBMP § 1207.02. A summary of the prosecution history of the application and appeal is necessary to determine whether Applicant has established good cause. In his first Office Action, the Examining Attorney asserted, “the dominant portion of both marks [DEL BARRIO and COCINA DEL BARRIO] is ‘DEL BARRIO’, making the marks confusingly similar.”6 In its response to the Office Action, Applicant did not challenge the Examining Attorney’s assertion that “Del Barrio” is the dominant part of all the marks.7 In his March 25, 2019 Office Action, the Examining Attorney expounded on the reasoning behind his assertion that “Del Barrio” is the dominant part of the marks by explaining that “Cocina,” the Spanish word for “Kitchen,” “is less significant for purposes of likelihood of confusion because it is descriptive of registrant’s [restaurant] services.”8 To support his contention, the Examining Attorney submitted the definition of the word “kitchen” from the AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2019),9 arguing, “[m]atter that is descriptive of or generic for a party’s goods and/or services is typically less significant or less dominant in relation to other wording in a mark.”10 Thus, because this wording describes registrant’s restaurant services, it is less significant in terms of 6 June 22, 2018 Office Action (TSDR 4). 7 August 6, 2018 Response to Office Action. 8 TSDR 6. 9 TSDR 135. 10 TSDR 6. Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 8 - affecting the mark’s commercial impression, and renders the wording “DEL BARRIO” the more dominant element of the mark.11 In response, Applicant argued that the term “Del Barrio,” meaning “of the neighborhood,” is entitled to only a narrow scope of protection because the term “Del Barrio” is “equally, if not more descriptive of” restaurant services and, therefore, it is frequently used and has a well-understood meaning citing a Google search summary for “neighborhood restaurant.”12 Applicant did not include any other evidence regarding third-party use or registration of the word “Kitchen” or “Neighborhood” to support its position. In his denial of Applicant’s Request for Reconsideration, the Examining Attorney repeated his contention that “Cocina” is descriptive and entitled to little weight in the analysis of the similarity or dissimilarity of the marks. In addition, the Examining Attorney submitted evidence from the USPTO electronic database showing that because the only relevant marks belong to Applicant and Registrant, “Del Barrio” is entitled to a broad scope of protection,13 citing copies of registrations consisting of the term “Del Barrio”14 and the word “Neighborhood.”15 11 Id. 12 September 25, 2019 Request for Reconsideration (4 TTABVUE 1, 4, and 8-9). 13 October 29, 2019 Denial of Request for Reconsideration (TSDR 5 and 7-35). 14 Id. at TSDR 36-55 and 71-78. 15 Id. at TSDR 56-70. Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 9 - In its Appeal Brief, Applicant acknowledges the Examining Attorney’s position and recites that the above-noted evidence.16 Throughout the prosecution of the application, the Examining Attorney made clear that the term “Del Barrio” is the dominant part of all the marks and that Registrant’s use of “Cocina,” defined as “kitchen,” is descriptive and entitled to little, if any, consideration in the analysis of the similarity or dissimilarity of the marks. Nevertheless, Applicant waited until its Reply Brief to submit evidence to counter the argument and evidence submitted by the Examining Attorney. See In re Luxuria s.r.o., 100 USPQ2d 1146, 1147 (TTAB 2011) (“the later in the appeal proceeding that the request for remand is filed, the stronger the reason that must be given for good cause to be found.”). We find that Applicant failed to show good cause because despite the Examining Attorney’s early and consistent position regarding the analysis of the similarity or dissimilarity of the marks, Applicant has not explained why the additional evidence it seeks to submit was not previously available. As noted above, Applicant waited until its Reply Brief to submit evidence to support its position when Applicant knew or should have known that it needed to respond to the Examining Attorney’s evidence and arguments, and what evidence it needed for that response. Applicant could have filed a request for reconsideration with its Notice of Appeal, or at any time within six months of the date of the issuance of the final refusal of registration. 16 Applicant’s Brief, pp. 5-7 (12 TTABVUE 6-8). Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 10 - Even assuming arguendo that the Examining Attorney did not submit the evidence to which Applicant needed to reply until the October 19, 2019 Denial of the Request for Reconsideration, as noted above, Applicant could have, and should have, filed a request for reconsideration. Assuming for some reason that Applicant could not file a request for reconsideration, Applicant should have filed a Request for Remand pursuant to Trademark Rule 2.142(d) prior to filing its main brief. See In re Adlon Brand Gmbh & Co., 120 USPQ2d 1717, 1725 (TTAB 2016) (applicant’s request for remand, included in applicant’s brief, denied, with the Board explaining that the proper procedure “was to file with the Board, after the filing of the appeal but before briefing, a request for remand with a showing of good cause.”). Once again, we note that the evidence for Applicant’s response was available during prosecution and there is no reason for Applicant’s delay. We deny Applicant’s “Request To Accept Evidence In Support Of Applicant’s Reply Brief.” II. Likelihood of Confusion We base our determination under Section 2(d) on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “In discharging this duty, the thirteen DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg. Co., 912 Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 11 - F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019), quoting In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997), quoting DuPont, 177 USPQ at 567. “Not all of the DuPont factors are relevant to every case, and only factors of significance to the particular mark need be considered.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018), quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010). See also M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which we have evidence, we focus our analysis on those factors we find to be relevant.”). “Each case must be decided on its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004) ; 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.”). See also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 12 - similarity of the marks and relatedness of the goods.’”), quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002). A. The similarity or dissimilarity of the marks. We turn first to the DuPont factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. 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) (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014), aff’d mem., 777 F. App’x 516 (Fed. Cir. Sept. 13, 2019); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). In comparing the marks, we are mindful that “[t]he proper test is not a side-by- side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai, 127 USPQ2d at 1801 (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)). The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 13 - Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Because the goods and services at issue are tortillas, tostadas and restaurant services, the average customer is an ordinary consumer. Applicant is seeking to register DEL BARRIO in standard character form and two DEL BARRIO and design marks reproduced below: The mark in the cited registration is COCINA DEL BARRIO in standard character form. With respect to Applicant’s composite DEL BARRIO word-and-design marks, we find that the term “Del Barrio” is the dominant part of Applicant’s marks because those words are likely to make an impression upon purchasers, consumers will remember the words, and consumers will use the words to request Applicant’s tortillas and tostadas. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908, 1911 (Fed. Cir. 2012) (citing CBS Inc. v. Morrow, 708 F. 2d 1579, 218 USPQ 198, 200 (Fed. Cir 1983)); Herbko Int’l, 64 USPQ2d at 1380 (“Because the impact of the design Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 14 - in the overall commercial impression is minor when compared with the words, a consumer viewing Herbko’s mark would attach greater significance to the words CROSSWORD COMPANION than to the crossword puzzle design.”). There is nothing improper in stating that, for rational reasons, the Board has given more or less weight to a particular feature of a mark, such as a common dominant element, provided the ultimate conclusion rests on a consideration of the marks in their entireties. Viterra, 101 USPQ2d at 908; In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). While Applicant’s DEL BARRIO marks and Registrant’s mark COCINA DEL BARRIO mark are not identical, they are similar because they share the term DEL BARRIO. Applicant and Registrant agree “Del Barrio” means “of the neighborhood” inasmuch as the translation of Applicant’s mark is “of the neighborhood” and the translation of Registrant’s mark COCINA DEL BARRIO is “kitchen of the neighborhood.” Thus, the marks are similar in appearance, sound, connotation and commercial impression. Applicant contends that the inclusion of the word “Cocina” in Registrant’s mark COCINA DEL BARRIO differentiates the marks because “[t]he first word of a multi- word mark is particularly important in the impression caused by the appearance of the mark when viewed by a typical consumer.”17 While the first term in a mark generally is considered the feature which will be called for, and so remembered, by 17 Applicant’s Brief, p. 4 (12 TTABVUE 5). Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 15 - consumers, this is not invariably the case. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (“the Board did not err in finding that ‘STONE LION CAPITAL’ is ‘similar in sight, sound, meaning, and overall commercial impression’ to ‘LION CAPITAL’ and ‘LION.’”); Chatam Int’l, 71 USPQ2d at 1946 (“Viewed in their entireties with non-dominant features appropriately discounted, the marks [GASPAR’S ALE for beer and ale and JOSE GASPAR GOLD for tequila] become nearly identical.”). The proposition Applicant sets forth does not apply in this case because COCINA DEL BARRIO is a unitary mark engendering the commercial impression of a neighborhood kitchen and no portion of Registrant’s mark dominates over another. Under these circumstances, consumers may perceive COCINA DEL BARRIO as being the restaurant division of the business that sells the DEL BARRIO line of tortillas and tostadas. See the discussion regarding the similarity or dissimilarity and nature of the goods and services below. Applicant also argues, [U]nless the customer is familiar with Spanish, the marks have no meaning. In those circumstances, to a non-Spanish speaker, the word COCINA, which is the first word in the registered mark and is the longest word in both marks, is likely to be most significant in the commercial impression created by the registered mark. The mark applied for has no equivalent to COCINA and on that basis, the non- Spanish speaking customer would clearly distinguish the two marks.18 18 Applicant’s Brief, p. 5 (12 TTABVUE 6). Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 16 - To the contrary, to the extent a consumer has no familiarity with the Spanish language, the marks would appear even more similar in appearance, sound, connotation and commercial impression because they include the term “Del Barrio.” The addition, of the “arbitrary” term “Cocina,” as noted above, would lead non- Spanish speakers to conclude that COCINA DEL BARRIO is a service division of the DEL BARRIO product line. Although we have pointed to the identical DEL BARRIO portions of the marks, we acknowledge the fundamental rule that we must consider the marks in their entireties. See Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1134 (Fed. Cir. 2015); Massey Junior Coll., Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 1402, 181 USPQ 272, 273-74 (CCPA 1974). We note the specific differences pointed out by Applicant. Even if consumers note those differences, the similarities between the marks are strong enough to outweigh the differences. See In re Denisi, 225 USPQ 624, 624 (TTAB 1985). Thus, when comparing the marks overall, they are similar in sound, connotation and commercial impression. This DuPont factor weighs in favor of finding a likelihood of confusion. B. The similarity or dissimilarity and nature of the goods and services. Applicant is seeking to register its DEL BARRIO marks for tortillas and tostados while the description of services in Registrant’s registration is restaurant and bar Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 17 - services. Applicant concedes that the goods and services are related.19 The Examining Attorney’s evidence corroborates the conceded relatedness of the goods to the services.20 C. Established, likely-to-continue channels of trade and classes of consumers. The excerpts from third-party websites showing third parties using the same marks to identify tortillas or tostadas and restaurant services serve to prove that the same consumers will purchase tortillas or tostadas and patronize restaurants through the same channels of trade. D. Conclusion Because the marks are similar, the goods and services are related, and the same classes of consumers purchase tortillas or tostadas and patronize restaurants, we find that Applicant’s mark DEL BARRIO, in standard character form, and Applicant’s two DEL BARRIO and design marks, all for tortillas and tostadas, are likely to cause confusion with the registered mark COCINA DEL BARRIO for “restaurant and bar services.” 19 Applicant’s Brief, p. 3 (12 TTABVUE 4) (“The determination [sic] factor in the appeal is, therefore, the similarity of the marks COCINA DEL BARRIO and DEL BARRIO.”); Applicant’s Reply Brief, p. 3 (17 TTABVUE 4) (Applicant’s goods are not the same as the services of the cited registration, but Applicant accepts that they are sufficiently related to satisfy the ‘something more’ requirement.”). 20 The Examining Attorney submitted third-party registrations based on use in commerce covering tortillas or tostadas and restaurant services (June 22, 2018 Office Action (TSDR 37- 68); March 25, 2018 Office Action (TSDR 11-134)) and excerpts from third-party websites showing third parties using the same marks to identify tortillas or tostadas and restaurant services (June 22, 2018 Office Action (TSDR 29-36); March 25, 2018 Office Action (TSDR 141- 160)). Serial No. 87823748 Serial No. 87823760 Serial No. 87823978 - 18 - Decision: The refusals to register Applicant’s marks DEL BARRIO and the two DEL BARRIO and design marks are affirmed.