Hot Stuff Foods, LLC

Trademark Trial and Appeal Board

Mar 8, 2013

No. 77392514 (T.T.A.B. Mar. 8, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
March 8, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Hot Stuff Foods, LLC
_____

Serial No. 77392514
_____

Gregory Golla of Merchant & Gould PC for Hot Stuff Foods, LLC.

Bridgett G. Smith, Trademark Examining Attorney, Law Office 115 (John Lincoski,
Managing Attorney).
_____

Before Seeherman, Bergsman and Kuczma, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Hot Stuff Foods, LLC (“applicant”) filed an intent-to-use application for the
mark HOT STUFF PIZZA and design, shown below,

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Serial No. 77392514

3

original drawing depicts a much more stylized version of
the slice of pizza.1
Subsequently, the Trademark Examining Attorney expounded on why she
thought the marks created different commercial impressions.
[T]he proposed amendment would materially alter the
mark in the initial application because it depicts a vastly
different looking slice of pizza. The original mark is a
much more stylized version of the slice of pizza whereas
the proposed amendment is a very plain and basic
depiction of a pizza slice which would require
republication. … The original drawing included several
lines and circular designs [sic] elements which have all
now been deleted from the proposed mark. In fact, there
is no shading in the original drawing. Furthermore, the
proposed amendment depicts a pretty thick crusted pizza
whereas the original drawing shows a thinner crusted
pizza with various toppings on it.2
Finally, in her appeal brief, the Trademark Examining Attorney contends
that the amended drawing “attempts to delete design elements on the slice of pizza”
thereby “creating the impression of a slice of pizza with toppings versus a plain
piece of pizza.” The Trademark Examining Attorney explained that “[a]n analysis
of the mark as a plain slice of pizza is very different from the analysis of the mark
with various elements, [sic]appearing to be toppings.”
Trademark Rule 2.72(a)(2) provides that an applicant may amend the
drawing of the mark if “[t]he proposed amendment does not materially alter the
mark. The Office will determine whether a proposed amendment materially alters
a mark by comparing the proposed amendment with the description or drawing of

1 February 23, 2011 Office action.
2 September 19, 2011 Office action.
Serial No. 77392514

4

the mark filed with the original application.” As we noted in Visa International
Service Association v. Life-Code Systems, Inc., 220 USPQ 740, 743-44 (TTAB 1983):
The general test of whether an alteration is material is
whether the mark would have to be republished after the
alteration in order to fairly present the mark for purposes
of opposition. If one mark is sufficiently different from
another mark as to require republication, it would be
tantamount to a new mark appropriate for a new
application.
Applicant’s amended drawing is not a material alteration to the original
drawing. The amended drawing which includes a simple representation of a slice of
pizza does not represent a substantial and, thus, material change to the original
drawing. The two marks create the same commercial impression: the words HOT
STUFF PIZZA superimposed on a pizza slice. Although the slices of pizza in the
original and amended drawings have specific differences, it must be remembered
that the mark is not solely the design portion. The words HOT STUFF PIZZA are
clearly the dominant part of the mark, and the nature of the mark is not changed by
the proposed amendment. The modified mark contains the essence of the original
mark, and the new form of the mark creates the impression of being essentially the
same mark as the mark in the original drawing.
We find that the amendment to the drawing is not a material alteration of
the mark.
Decision: The refusal to register is reversed.