Hartmoor Restaurant Group, LLC

Trademark Trial and Appeal Board

May 29, 2012

No. 85015573 (T.T.A.B. May. 29, 2012)

Mailed:
May 29, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re Hartmoor Restaurant Group, LLC.
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Serial No. 85015573
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William P. Matthews and Alicia E. Bodecker of Foulston Siefkin
LLP, for Hartmoor Restaurant Group, LLC.

Alex Seong Keam, Trademark Examining Attorney, Law Office 114
(K. Margaret Le, Managing Attorney).
_______

Before Grendel, Wellington, and Ritchie, Administrative
Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Hartmoor Restaurant Group, LLC (“applicant”) filed an
application to register the mark CHESTER’S CHOPHOUSE & WINE BAR
and design, shown below, for services recited as “restaurant and
bar services featuring fine dining and table service; wine bar
services,” 1 in International Class 43:

1 Serial No. 85015573, filed April 16, 2010, pursuant to Section 1(a)
of the Trademark Act, 15 U.S.C. § 1052(a), alleging dates of first use
and first use in commerce on May 16, 2005, and disclaiming exclusive
rights to use the terms “CHOPHOUSE & WINE BAR.”
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 85015573
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The Trademark Examining Attorney refused registration of
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s mark so
resembles the following three registered marks, the first two of
which are owned by the same registrant, that when used on or in
connection with applicant’s identified services, it is likely to
cause confusion or mistake or to deceive:
1. CHESTER’S,2 in standard character format, for, as
relevant, “restaurant services, food preparation
services, take-out food services, and operating
free-standing food preparation and vending stands,
all of which are provided in connection with
serving cooked chicken and entrees for which the
main course is cooked chicken,” in International
Class 43.

2 Registration No. 3206105, issued February 6, 2007. This registration
also includes goods in International Classes 16 and 30.
Serial No. 85015573
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2. ,3 for, as
relevant, “restaurant services, food preparation
services, take-out food services; and operating
free-standing food preparation and vending stands,”
in International Class 43.
3. ,4 for
“restaurant services,” in International Class 43.

Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney filed
briefs and applicant filed a reply brief. For the reasons
discussed herein, the Board affirms the refusal to register.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
likelihood of confusion. In re E. I. du Pont de Nemours & Co.,

3 Registration No. 3011320, issued November 1, 2005. Sections 8 and 15
affidavits accepted and acknowledged. This registration also includes
goods in International Classes 30 and 35.
Serial No. 85015573
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476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between
the marks and the similarities between the goods or 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 and differences in
the marks”). For purposes of our likelihood of confusion
analysis, we focus on the Registration No. 3289557 which has the
most similar mark and the most similar services. If we do find
a likelihood of confusion as to this mark, then we would not
find it with the others either. Similarly, if we do find a
likelihood of confusion, then our analysis regarding the others
is moot.
The Services and Channels of Trade

The services in Registration No. 3289557, International
Class 43 are “restaurant services.” The services for which
applicant seeks registration specify “restaurant and bar
services featuring fine dining and table service; wine bar

4 Registration No. 3289557, issued September 11, 2007, and disclaiming
the exclusive right to use the term “HAMBURGERS” and “Est. 1984” apart
from the mark as shown.
Serial No. 85015573
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services.” Hence the services in the application overlap with,
and are a subset of, the services in the cited registration.
Applicant argues that since the mark in Registration No.
3289557 includes the term “HAMBURGERS,” those services must be
construed as referring to fast-food restaurant services only.
However, the recitation of services contains no limitation to
any particular type of “restaurant services” and therefore is
broad enough to be construed to include “fine dining and table
service” as specified in the application. Octocom Systems, Inc.
v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990) (“[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 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.” [citations omitted]). Moreover,
hamburgers and fine dining are not mutually exclusive. To show
that hamburgers are not offered solely at fast food restaurants,
but may be served at fine dining facilities, the examining
attorney submitted into the record the following evidence:

The Hamburger Goes High-End: Suddenly, le hamburger is
among the appetizers and entrees offered at the finest
restaurants across the country.
www.foxnews.com/story. Attached to February 18, 2011
Office Action, p25-26.

High-end burger joint 5 star seeks regional
domination: With locations in Taos and Albuquerque, 5
Star has connected the first two links in what the
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company hopes will become a major chain of high-end
burger restaurants. . . Gontram, who locates his
restaurants in high-income areas, has found that
customers are willing to pay for quality and knowledge
about the source of their food.
www.bizjournals.com/albuquerque. Attached to February
18, 2011 Office Action, p29-30.

America’s Most Expensive Hamburgers: On May 26,
millions of Americans celebrated Memorial Day with
backyard barbecues. While most of our grills were
filled with the usual Grade-A meat from local butchers
and supermarkets, dozens of restaurants across the
country served Kobe-beef burgers topped not with
ketchup and mustard, but truffles and foie gras. The
price tags on these wallet-busting burgers can reach
$175. www.forbestraveler.com/story. Attached to
February 18, 2011 Office Action, p43.

Burger meets really high end: Recession shmession. At
Mandalay Bay’s Fleur restaurant, “Top Chef” star
Hubert Keller is selling a $5,000 burger – and he
calls it a bargain. What’s the beef? Years ago,
Keller started selling a $60 burger (such a quaint
price in retrospect) at Burger Bar at Mandalay Bay.
www.lvrj.com/news. Attached to February 18, 2011
Office Action, p47.

The back-to-burgers culinary movement might be most
evident in New York City, where fine-dining stalwart
Laurent Touronel recently extended his BLT line of
high-end restaurants with the opening of BLT Burger.
. . . “I didn’t think I could improve the classic
hamburger,” said Boulud, whose $69 DB Burger Royale
generates as much as 40 percent of menu items sold –
and, insiders say, a far higher percentage of the
restaurant’s profits. www.nrn.com. Attached to
February 18, 2011 Office Action, p53.

Because the services recited in the application overlap
with those in cited registration, we must presume that the
channels of trade and classes of purchasers are the same. See
Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) (“Given
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the in-part identical and in-part related nature of the parties’
goods, and the lack of any restrictions in the identifications
thereof as to trade channels and purchasers, these clothing
items could be offered and sold to the same classes of
purchasers through the same channels of trade”); In re Smith and
Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods
are legally identical, they must be presumed to travel in the
same channels of trade, and be sold to the same class of
purchasers”). Additionally, there is nothing in the recital of
services in either the cited registration or the application
that limits either registrant’s or applicant’s channels of
trade. Squirtco v. Tomy Corporation, 697 F.2d 1038, 216 USPQ
937, 939 (Fed. Cir. 1983). See In re Linkvest S.A., 24 USPQ2d
1716, 1716 (TTAB 1992) (because there are no limitations as to
channels of trade or classes of purchasers in either the
application or the cited registration, it is presumed that the
registration and the application move in all channels of trade
normal for those services, and that the services are available
to all classes of purchasers for the listed services).
Accordingly, we find that these du Pont factors weigh strongly
in favor of finding a likelihood of consumer confusion.

Serial No. 85015573
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The Marks
Preliminarily, we note that the more similar the goods or
services at issue, the less similar the marks need to be for the
Board to find a likelihood of confusion. Century 21 Real Estate
Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698
(Fed. Cir. 1992). We consider and compare the appearance,
sound, connotation and commercial impression of the marks in
their entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689,
1692 (Fed. Cir. 2005).
In comparing the marks, we are mindful that the test is not
whether the marks can be distinguished when subjected to a side-
by-side comparison, but rather whether the marks are
sufficiently similar in terms of their overall commercial
impression so that confusion as to the source of the goods
and/or services offered under the respective marks is likely to
result. San Fernando Electric Mfg. Co. v. JFD Electronics
Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff'd unpublished, No. 92-1086 (Fed. Cir. June 5,
1992). The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression
of the marks. Winnebago Industries, Inc. v. Oliver & Winston,
Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Serial No. 85015573
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Applicant’s mark consists of a design as well as the words
CHESTER’S CHOPHOUSE & WINE BAR. The term “CHOPHOUSE & WINE BAR”
is descriptive of the services for which applicant seeks
registration. It is also written in smaller print at the bottom
of the design. We find too that although the design portion of
the mark is not insignificant, as has often been stated, it is
the words which will be used by consumers to call for or refer
to the services. CBS Inc. v. Morrow, 708 F.2d 1579, 1581-82
(Fed. Cir. 1983); In re Dakin’s Miniatures Inc., 59 UPSQ2d 1593,
1596 (TTAB 2001); In re Appetito Provisions Co., Inc., 3 USPQ2d
1553, 1554 (TTAB 1987). Accordingly, we find the word CHESTER’S
to be dominant in this mark. In re National Data Corp., 224
USPQ 749, 751 (Fed. Cir. 1985) (“[T]here is nothing improper in
stating that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their
entireties.”)
The mark in the cited registration consists of a design as
well as the words CHESTER’S HAMBURGERS (and in very small print
the words “Est. 1984” on the side). The term “HAMBURGERS” is
descriptive of the services in the cited registration. It is
also written in slightly smaller print at the bottom. For the
mark in the cited registration, we find the design portion of
the mark to be dominated by the literal portion, as it merely
adds to the commercial impression of the configuration of a
restaurant sign. Accordingly, for the cited registration also,
we find CHESTER’S to be the dominant term in the mark.
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Both marks give similar commercial impressions of being
restaurants with the same arbitrary name “CHESTER’S.” Since
this is the first word in both marks, it is the word consumers
are most likely to use and to remember each mark by. Indeed it
is likely that consumers of each would shorten the names of both
to simply “CHESTER’S.” See In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 219 (CCPA 1978) (Rich, J., concurring:
“the users of language have a universal habit of shortening full
names – from haste or laziness or just economy of words”). This
could be highly confusing, since their services overlap.
Finally, applicant argues that the cited registration is
weak. In particular, applicant submitted evidence of four third
party registrations comprised of the term “CHESTER’S” for
“puffed corn snacks,” and “popped popcorn,” as well as CHESTER
CHEETAH for “cheese-flavored corn-based snack food” and
“crackers.” First, we note that this is a rather sparse
showing, hardly indicating that the term “CHESTER” or
“CHESTER’S” is suggestive of anything regarding food or food
services. Second, we note that all four of these registrations
are registered to the same registrant, Frito-Lay North America,
Inc., further dispelling any indication of wide-spread use of
the term. Third, we note that none of the registrations are for
restaurant services, as are the two at issue in this case.
Finally, we note that the other registrations cited by applicant
for terms incorporating the word “chester” inside another word
(such as DORCHESTER COLLECTION; WINCHESTER CAFÉ; WINCHESTER BAY
SALMON SAUCE are quite off point since they are integrated words
Serial No. 85015573
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apart from, and unrelated to, the word, “chester.”).
Accordingly, we find this line of argument quite unconvincing.
To be complete, we note that, as our precedent dictates, even
the owner of a weak mark is entitled to protection from
likelihood of confusion by competing marks. See Giant Food Inc.
v. Roos and Mastacco, Inc., 218 USPQ 521 (TTAB 1982).
In sum, we find this du Pont factor to also favor finding a
likelihood of confusion.
Consumer Sophistication
Applicant urges us to consider consumer sophistication. In
this regard, as with the other du Pont factors, we are bound by
the parties’ respective identifications of goods. See Octocom
Systems, Inc. v. Houston Computers Services Inc., 16 USPQ2d
supra at 1787. Applicant submitted the declaration of Robert
Lane, its Executive Chef and Manager, who testified that
applicant provides an “upscale atmosphere” with “one-of-a-kind
furniture,” “mahogany walls” and “oak flooring,” “leather
booths,” “and stone fireplaces.” (Lane Decl. at Para. 4). Mr.
Lane also stated that in applicant’s restaurant “[c]ustomers may
also enjoy water views of an adjacent lake while dining.” Id.
He added that entrees range in price from $18 to $56, and that
wine prices range from $32 to $560 a bottle. Id. at Paras. 5-6.
All of the statements made by Mr. Lane are consistent with
the recital of services in the application, i.e., that applicant
provides “fine dining.” From this, we may indeed presume that
Serial No. 85015573
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the customer base will exercise some degree of care in reviewing
the marks of those providing such services. Nevertheless, we
note that with overlapping services and similar marks that share
the same first term, even a careful, sophisticated consumer of
these services is not likely to note the differences in the
marks. Cunningham v. Laser Golf Corp., 222 F.3d 943, 948-949
(Fed. Cir. 2000). Furthermore, careful purchasers who do notice
the difference in the marks will not ascribe it to differences
in the source of the services, but will see the marks as
variations of each other, pointing to a single source.
Accordingly, we deem this du Pont factor to at best weigh
slightly against finding a likelihood of confusion.

Conclusion
In summary, we have carefully considered all of the
evidence and arguments of record relevant to the du Pont
likelihood of confusion factors. We conclude that with
overlapping services and similar marks, even with somewhat
sophisticated consumers, there is a likelihood of confusion
between applicant’s mark CHESTER’S CHOPHOUSE & WINE BAR and
design for “restaurant and bar services featuring fine dining
and table service; wine bar services,” and the registered mark
CHESTER’S HAMBURGERS and design for “restaurant services.”
Decision: The refusal to register is affirmed.