88411812 (T.T.A.B. Dec. 11, 2020)

IHOP Restaurants LLC

Trademark Trial and Appeal BoardDec 11, 2020

88411812 (T.T.A.B. Dec. 11, 2020)

Mailed: December 11, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ IHOP Restaurants LLC _____ Application Serial No. 88411812 Application Serial No. 88411874 _____ Michael G. Kelber, Jessica Rissman Cohen, and Kara C. Smith of Neal, Gerber & Eisenberg LLP for IHOP Restaurants LLC. Kaelie E. Kung, Trademark Examining Attorney, Law Office 103, Stacy Wahlberg, Managing Attorney. _____ Before Cataldo, Bergsman and Wellington, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: IHOP Restaurants LLC (Applicant) seeks registration on the Principal Register for the marks FLIP’D and FLIP’D BY IHOP, both in standard character form, and both for “Restaurant Services; Carry out food services; none of the foregoing services offered in casinos,” in International Class 43.1 1 Serial No. 88411812 for the mark FLIP’D and Serial No. 88411874 for the mark FLIP’D BY IHOP were filed May 1, 2019, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use the marks in commerce. This Opinion Is Not a Precedent of the TTAB Precedent of the TTAB PrePrecedent of the TTAB Serial No. 88411812 Serial No. 88411874 - 2 - The Examining Attorney refused to the 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 so resemble the registered mark FLIPT and design, reproduced below, for “Restaurant services, namely, casual restaurant services with moderately-priced food in a casual atmosphere having table service in a casino,” in International Class 43, as to be likely to cause confusion.2 The description of the mark reads as follows: Color is not claimed as a feature of the mark. The mark consists of the letters “FLIPT” with a stylized “I”. Because the appeals involve common questions of fact and law, we consolidate the appeals. See, e.g., In re S. Malhotra & Co., 128 USPQ2d 1100, 1102 (TTAB 2018) (Board sua sponte consolidated two appeals); In re Anderson, 101 USPQ2d 1912, 1915 (TTAB2012) (Board sua sponte consolidated two appeals); In re Bacardi & Co. Ltd., 48 USPQ2d1031, 1033 (TTAB 1997); (Board sua sponte considered appeals in five applications together and rendered single opinion). We refer to the record in Serial No. 88411812 unless otherwise indicated.3 2 Registration No. 4529921 registered May 13, 2014; Sections 8 and 15 declarations accepted and acknowledged. 3 Citations to the examination record refer the Trademark Status and Document Retrieval system (TSDR) by page number in the downloadable .pdf format. Serial No. 88411812 Serial No. 88411874 - 3 - 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 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) and 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); Serial No. 88411812 Serial No. 88411874 - 4 - 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.”). 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 similarity of the marks and relatedness of the goods [or services].’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). I. The similarity or dissimilarity and nature of the services. As noted above, Applicant is seeking to register its marks for “Restaurant Services; Carry out food services; none of the foregoing services offered in casinos.” The description of services in the cited registration is “Restaurant services, namely, casual restaurant services with moderately-priced food in a casual atmosphere having table service in a casino.” Applicant contends that Applicant’s restaurant and carry out services are different from Registrant’s restaurant services because Applicant’s description of services does not include restaurant and carry out services in casinos while Registrant’s description of services is for restaurant services in casinos. Thus, restaurant and carry out services rendered outside of a casino and restaurant services rendered in a casino are mutually exclusive: that is, “restaurant services that are only offered in a casino cannot also be offered outside a casino; and casino restaurant Serial No. 88411812 Serial No. 88411874 - 5 - services that are only offered outside of a casino cannot also be offered inside a casino.”4 Applicant’s contention is incorrect. First, Registrant’s description of services restricting Registrant’s restaurant services to a casino location does not mean that Registrant may not render restaurant services under the same mark outside of a casino. It simply means that the description of services is restricted to restaurant services in a casino. In fact, Applicant uses its IHOP mark for restaurant and carry out services both in and out of casinos.5 In addition, nothing precludes an entity from restricting its description of services to a specific location even if it renders those services outside of that location. Moreover, the entity could file a second application encompassing services outside of the previously identified location. Finally, the entity could file a third application for those same services without any restriction to a specific location. Cf. In re G.B.I. Tile and Stone, Inc., 92 USPQ2d 1366, 1370 (TTAB 2009) (“[T]he mere fact that some goods are not included in a registration's identification of goods does not establish that the owner of the mark has not registered the mark for those goods in another registration since, for example, the registrant may have begun using the mark on those goods at a later date … It is, therefore, to be expected that many registrations for marks would not cover all of a party’s goods and services.”). 4 Applicant’s Brief, p. 10 (6 TTABVUE 15). 5 May 19, 2020 Request for Reconsideration Denial (TSDR 4-7 and 21-22); October 23, 2019 Office Action (TSDR 28). Serial No. 88411812 Serial No. 88411874 - 6 - When analyzing the similarity of the services, “it is not necessary that the products [or services] of the parties be similar or even competitive to support a finding of likelihood of confusion.” Coach Services, Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007). Instead, we may find a likelihood of confusion “if the respective [services] are related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source.” Coach Services, 101 USPQ2d at 1722. To show that consumers may believe restaurant services rendered in a casino and restaurant services rendered outside of a casino may emanate from a single source, the Examining Attorney submitted Internet evidence from 10 entities that render their restaurant services both in a casino and outside of a casino under the same mark.6 The Examining Attorney submitted evidence showing the use of the same mark for restaurant services in and out of casinos for the entities listed below: ● NOBU;7 ● Carnegie Delicatessen;8 6 October 23, 2019 Office Action (TSDR 10-27). 7 Id. at TSDR 10-11. 8 Id. at 12-13. The webpage purportedly showing CARNEGIE DELICATESSEN restaurant services outside of a casino does not provide an address or any other location information. There is no information as to where the services are located. Therefore, the Examining Attorney has not shown that CARNEGIE DELICATESSEN renders restaurant services outside a casino. However, because the CARNEGIE DELICATESSEN is well known, we consider the evidence. Serial No. 88411812 Serial No. 88411874 - 7 - ● Gallagher’s Steakhouse;9 ● Hard Rock Cafe;10 ● Jimmy Buffett’s Margaritaville Restaurant;11 ● McCormick & Schmick’s;12 ● Claim Jumper;13 ● Vic & Anthony’s;14 ● Morimoto;15 and ● Buca di Beppo.16 Applicant argues that the third-party use evidence is “improper extrinsic evidence” showing that third parties offer services inside and outside of a casino because “the relatedness inquiry must be conducted based on the services as identified in the application and registration.”17 Applicant conflates improperly using extrinsic evidence to define the services at issue with properly using extrinsic evidence to show that disparate services are related. 9 Id. at TSDR 13. 10 Id. at TSDR 14-15. 11 Id. at TSDR 16-17. 12 Id. at TSDR 18-19. 13 Id. at 20-21. 14 Id. at 22-23. 15 Id. at 24-25. 16 Id. at 26-27. 17 Applicant’s Brief, pp. 10-11 (6 TTABVUE 15-16). Serial No. 88411812 Serial No. 88411874 - 8 - Applicant is correct that when considering the scope of the services, we must consider the services as Applicant and Registrant described them in the application and registration. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys, Inc. v. Houston Comput. Servs. 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.”); Canadian Imperial Bank of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987) (quoting CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983)); Paula Payne Prods. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of likelihood of confusion must be decided on the basis of the respective descriptions of goods). However, excerpts from websites showing the same mark used for both sets of services are probative to demonstrate that the services are related. See e.g., On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000) (holding ON-LINE TODAY for Internet connection services and ONLINE TODAY for an electronic publication likely to cause confusion in part because Internet connection services and Internet content publications have been shown to be available from a single source); In re Iolo Tech., LLC, 95 USPQ2d 1498, 1500-01 (TTAB 2010) (“The examining attorney also submitted evidence from several websites Serial No. 88411812 Serial No. 88411874 - 9 - to show that various types of optimization software such as identified by applicant and technical support services such as identified by the cited registration are advertised to consumers under the same mark.”); G.B.I. Tile and Stone, 92 USPQ2d at 1371 (holding the goods, while different and not interchangeable, are related because the evidence, including Internet excerpts showing third parties using the same marks for both sets of products, clearly demonstrates that there are entities that are the source of both sets of products). See also, Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (testimony that several large companies produce and sell both pet and human food is “extremely pertinent” in determining whether a consumer would believe FIDO LAY dog treats originate from the same source as FRITO-LAY human snacks); Tuxedo Monopoly, Inc. v. General Mills Fun Grp., Inc., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (finding extensive licensing of mark MONOPOLY for real estate game relevant evidence of relatedness of goods); Sterling Drug Inc. v. Sebring, 515 F.2d 1128, 185 USDPQ 649, 652 (CCPA 1975) (evidence that pharmaceutical houses distribute both ethical drug products and grooming aids such as shampoo “has a definite bearing on the likelihood that the public will think, when they do appear under the same mark, that they have the same source.”). Applicant also argues, in essence, that Registrant implicitly consents to or acquiesces to the registration of Applicant’s mark because Registrant agrees the Serial No. 88411812 Serial No. 88411874 - 10 - restriction limiting Registrant’s restaurant services to “in a casino” is significant.18 Applicant contends that in prosecuting its application for registration, Registrant restricted its description of services to “in a casino” to avoid the Section 2(d) refusal to register FLIPT because of Registration No. 3974953 for the mark FLIP FLIP BURGER BOUTIQUE.19 There are three problems with Applicant’s argument. First, Applicant did not submit the relevant documents from Registrant’s prosecution history. All we have in the record is attorney argument. “Attorney argument is no substitute for evidence.” Cai, 127 USPQ2d at 1799 (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005)). See also Martahus v. Video Duplication Services Inc., 3 F.3d 417, 27 USPQ2d 1846, 1849 (Fed. Cir. 1993) (“mere attorney arguments unsubstantiated by record evidence are suspect at best”). Second, Applicant overstates the effect of Registrant’s arguments in its application for registration. Applicant is essentially asserting that Registrant’s statements in its application for registration is file wrapper estoppel. File wrapper estoppel is not applicable in trademark cases, nor is it an admission against interest. See Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 198 USPQ 151, 153-54 (CCPA 1978) (finding that a likelihood of confusion argument made in support of an application for registration is a legal conclusion, and therefore, cannot constitute an admission because only facts may be admitted); Calypso Tech. Inc. v. 18 In this case, we have neither a consent, nor an agreement between Applicant and Registrant, where Registrant consents to Applicant’s use and registration of Applicant’s marks FLIP’D and FLIP’D BY IHOP. 19 April 7, 2020 Request for Reconsideration (TSDR 7-8). Serial No. 88411812 Serial No. 88411874 - 11 - Calypso Capital Mgmt. LP, 100 USPQ2d 1213, 1233 (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 USPQ 1271, 1281 (TTAB 2009), aff’d, 415 Fed. Appx. 222 (Fed. Cir. 2010) (“The doctrine of ‘file wrapper estoppel’ does not apply in trademark cases” nor does a party’s position in a prior proceeding “rise to the level of an admission against interest.”); Taffy’s of Cleveland, Inc. v. Taffy’s, Inc., 189 USPQ 154, 156 (TTAB 1975) (fact that petitioner argued before examining attorney that its mark and that of respondent were not confusingly similar does not preclude petitioner from asserting likelihood of confusion as ground for cancellation). In any event, Registrant’s asserted position in prosecuting the underlying application for the cited registration has limited probative value. See Specialty Brands, Inc. v. Coffee Bean Distrib., Inc., 748 F.2d 669, 223 USPQ 1281, 1283 (TTAB 1984) (“[W]e place only limited weight on these statements in the application file.”). [T]hat a party earlier indicated a contrary opinion respecting the conclusion in a similar proceeding involving similar marks and goods is a fact, and that fact may be received in evidence as merely illuminative of shade and tone in the total picture confronting the decision maker. To that limited extent, a party’s earlier contrary opinion may be considered relevant and competent. Specialty Brands, 223 USPQ at 1283 (quoting Interstate Brands, 198 USPQ at 154). Finally, Registrant’s restriction to “in a casino” in its description of services does not rebut the Examining Attorney’s evidence (i.e., that at least 10 entities use the Serial No. 88411812 Serial No. 88411874 - 12 - same mark to identify restaurant services rendered in a casino and outside of a casino). We find the services are closely related and this DuPont factor favors finding a likelihood of confusion. II. Established, likely-to-continue channels of trade and classes of consumers. It is self-evident that restaurant services rendered in casinos and restaurant services rendered outside of a casino are in different channels of trade. However, casino restaurants and restaurants outside of casinos offer their services to the same classes of consumers. For example, Applicant’s advertisement for IHOP EXPRESS at Winstar World Casino & Resort explains to consumers familiar with IHOP restaurants outside of casinos that “your IHOP favorites can now be enjoyed all day, every day at the world’s largest casino.”20 We find that Applicant and Registrant offer their services to the same classes of consumers. III. Strength of Opposer’s mark FLIPT and design. Applicant submitted copies of 13 third-party registrations for marks including a variation of the word “Flip” for restaurant services to prove the word “Flip” and variations thereof when used in connection with restaurant services is weak and, therefore, entitled to a narrow scope of protection.21 Specifically, Applicant’s evidence demonstrates that FLIP “has a highly suggestive meaning in the field” such that the inclusion of minute, differentiating elements in the mark 20 October 23, 2019 Office Action (TSDR 28). 21 September 19, 2019 Response to an Office Action (TSDR 15-36). Serial No. 88411812 Serial No. 88411874 - 13 - or the respective services are sufficient to distinguish the marks at issue. As a result, the Examining Attorney clearly erred in failing to consider this evidence and in failing to give the Cited Registration its proper, limited scope of protection. The final refusal should therefore be reversed on this basis alone.22 We list below five representative registrations incorporating the word “Flip”: ● Registration No. 3170179 for the mark FLIP’S;23 ● Registration No. 5761656 for the mark FLIP NIGHT;24 ● Registration No. 5662395 for the mark FLIP-A-LO’S;25 ● Registration No. 5647613 for the mark FLIP ‘N TOSS;26 and ● Registration No. 5589582 for the mark FLIP FLOP PANCAKE SHOP.27 The “real evidentiary value of third party registrations per se is to show the sense in which . . . a mark is used in ordinary parlance.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1676 (Fed. Cir. 2015) (quoting 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:90 (4th ed. 2015)). “Third party registrations are relevant to prove that some segment of the composite marks which both contesting parties use has a normally understood and well-recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.” Id. See also Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 22 Applicant’s Brief, p. 7 (6 TTABVUE 12). 23 September 19, 2019 Response to an Office Action (TSDR 15). 24 Id. at TSDR 17. 25 Id. at TSDR 18. 26 Id. at TSDR 19. 27 Id. at TSDR 20. Serial No. 88411812 Serial No. 88411874 - 14 - 189 USPQ 693, 694-95 (CCPA 1976) (even if “there is no evidence of actual use” of “third-party registrations,” such registrations “may be given some weight to show the meaning of a mark in the same way that dictionaries are used.”). Marks that are descriptive or highly suggestive are entitled to a narrower scope of protection, i.e., are less likely to generate confusion over source identification, than their more fanciful counterparts. Id.; Drackett Co. v. H. Kohnstamm & Co., 404 F.2d 1399, 160 USPQ 407, 408 (CCPA 1969) (“The scope of protection afforded such highly suggestive marks is necessarily narrow and confusion is not likely to result from the use of two marks carrying the same suggestion as to the use of closely similar goods.”). The third-party registration evidence shows that the word FLIP or variations thereof used in connection with restaurant services have a suggestive significance. In other words, Registrant’s mark FLIPT and design is not entitled to such a broad scope of protection that it is a bar to the registration of every mark comprising, in whole or in part, a variation of the word “Flip.” Registrant’s mark FLIPT and design only will bar the registration of marks “as to which the resemblance to [FLIPT and design] is striking enough to cause one seeing it to assume that there is some connection, association or sponsorship between the two.” Anthony’s Pizza & Pasta Int’l, 95 USPQ2d at 1278 (quoting Pizza Inn, Inc. v. Russo, 221 USPQ 281, 283 (TTAB 1983)). However, the registrations demonstrate that the word “Flip” and variations thereof registered in connection with restaurant services is suggestive rather than “highly suggestive.” Serial No. 88411812 Serial No. 88411874 - 15 - In addition, Applicant’s marks FLIP’D and FLIP’D BY IHOP are closer to Registrant’s mark FLIPT and design than any of the third-party registrations Applicant submitted.28 IV. The similarity or dissimilarity of the marks. We now turn 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. 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). “The 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., 101 USPQ2d at 1721). See also Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012); San Fernando Elec. Mfg. Co. v. JFD Elec. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons 28 The closest third-party registration mark is FRIED FLIPPED FAKE (Supplemental Registration No. 4792168) (September 19, 2019 Response to an Office Action (TSDR 36)). Serial No. 88411812 Serial No. 88411874 - 16 - Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. 1992). 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); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Because the services at issue are restaurant services provided in a casino and outside of a casino, the average customer is an ordinary consumer. Registrant’s mark is FLIPT and design reproduced below: In the case of marks consisting of words and a design, such as Registrant’s mark FLIPT and design, consumers normally accord the words greater weight because the words are likely to make an impression upon purchasers, consumers will remember them, and use them to request the services. 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 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.”). Serial No. 88411812 Serial No. 88411874 - 17 - There is nothing improper in stating that, for rational reasons, we have 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 1908; In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). In addition, the spatula design that Registrant substituted for the letter “I” in the word “Flip” reinforces the word “Flip” because a spatula is “a flat thin implement used especially for spreading or mixing soft substances, scooping, or lifting.”29 As pointed out by Applicant, the commercial impression engendered by the word “Flip” when applied to restaurant services is “to cause to turn over or around, especially with a light quick motion; e.g., flip a pancake.”30 Applicant’s mark FLIP’D is similar, albeit not identical, to Registrant’s mark FLIPT and design in appearance and sound. Both marks begin with the letters F-L- I-P and are contractions of the word “Flipped.” The marks also have the same meaning and convey the same commercial impression (i.e., to turnover). For the same reasons, Applicant’s mark FLIP’D BY IHOP is similar, albeit not identical to Registrant’s mark FLIPT and design. However, FLIP’D BY IHOP has the additional source modifier BY IHOP for us to consider. Because Registrant’s FLIPT 29 Merriam-Webster.com (accessed December 10, 2020). The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). 30 Applicant’s Brief, p. 4 n.1 (6 TTABVUE 9). Serial No. 88411812 Serial No. 88411874 - 18 - only is suggestive, not highly suggestive, Applicant’s addition of the source modifier BY IHOP does not decrease the similarity of the marks because it suggests that Applicant is the source of Registrant’s restaurant services. See In re Chica, Inc., 84 USPQ2d 1845 (TTAB 2007) (CORAZON BY CHICA and design is similar to CORAZON both for jewelry where Corazon means heart); Saks & Co. v. TFM Indus. Inc., 5 USPQ2d 1762, 1764 (TTAB 1987) (FOLIO BY FIRE ISLAND is similar to FOLIO); In re Christian Dior, 225 USPQ 533, 535 (TTAB 1985) (LE CACHET DE DIOR is similar to CACHET where cachet connotes prestige); In re Riddle, 225 USPQ 630 (TTAB 1985) (RICHARD PETTY’S ACCUTUNE (and design) for automotive service centers is similar to ACCUTUNE for automotive testing equipment); In re C.F. Hathaway Co., 190 USPQ 343 (TTAB 1976) (HATHAWAY GOLF CLASSIC for knitted sports shirts is similar to GOLF CLASSIC for men’s hats). In addition, it is likely that some consumers will shorten Applicant’s FLIP’D BY IHOP to FLIP’D. Consumers have a penchant for shortening marks. In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010)) (affirming Board decision that ML is likely to be perceived as a shortened version of ML MARK LEES, and noting that “the presence of an additional term in the mark does not necessarily eliminate the likelihood of confusion if some terms are identical”); Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1819 (TTAB 2015) (“While Opposer’s beer was originally sold under the BUDWEISER brand, customers soon began to abbreviate the mark, calling for BUDWEISER beer just by the name ‘BUD.’”); Big M Inc. v. The United States Shoe Co., 228 USPQ 614, 616 (TTAB 1985) Serial No. 88411812 Serial No. 88411874 - 19 - (“[W]e cannot ignore the propensity of consumers to often shorten trademarks and, in the present case, this would be accomplished by dropping the ‘T.H.’ in referring to registrant’s stores [T.H. MANDY].”). We find that Applicant’s marks FLIP’D and FLIP’D BY IHOP are similar to Registrant’s mark FLIPT and design in appearance, sound, connotation and commercial impression. V. Conclusion Because the marks are similar, the services are related and are offered to the same consumers, we find that Applicant’s marks FLIP’D and FLIP’D BY IHOP both for “Restaurant Services; Carry out food services; none of the foregoing services offered in casinos” are likely to cause confusion with the registered mark FLIPT and design for “Restaurant services, namely, casual restaurant services with moderately-priced food in a casual atmosphere having table service in a casino.” Decision: The refusals to register Applicant’s marks FLIP’D and FLIP’D BY IHOP are affirmed.