Jason Mitow

Trademark Trial and Appeal Board

Sep 1, 2016

No. 86399621 (T.T.A.B. Sep. 1, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: September 1, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Jason Mitow
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Serial No. 86399621

Zachary D. Messa, of Johnson Pope Bokor Ruppel & Burns, LLP
for Jason Mitow.
Mark Sparacino, Trademark Examining Attorney, Law Office 103,
Michael Hamilton, Managing Attorney.
_____

Before Wellington, Greenbaum and Gorowitz,
Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Jason Mitow (“Applicant”) seeks registration on the Principal Register of the
mark BLITZ for
“Restaurant and bar services,” in International Class 43.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that

1 Application Serial No.86399621 was filed on September 19, 2014, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
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Applicant mark so resembles following registered marks, which are owned by
different entities, as to be likely to cause confusion, mistake or deception:
BLITZED (in standard characters) for “bar services;
catering services; cocktail lounge services; and restaurant
services” in International Class 43;2and
PASTA BLITZ (in standard characters, PASTA disclaimed)
for “restaurant services featuring Italian cuisine” in
International Class 43.3
When the refusal was made final, Applicant appealed. We affirm the refusal based
on both registrations.
I. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are 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., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976). See also, In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997).
Applicant contends that his application should be approved since the two
registrations cited against the grant of his application are co-existing. Applicant’s

2 Registration No. 4118728 issued on March 27, 2012.
3 Registration No. 4487813 issued on February 25, 2014.
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contention presumes that the prior registration of a particular mark should be of
some persuasive authority in handling later applications involving similar marks.
However, we are not privy to the record of the prior registration and are bound to
make a decision based on the record before us. See AMF Inc. v. American Leisure
Products, Inc., 177 USPQ 268, 269 (CCPA 1973); In re International Taste, Inc., 53
USPQ2d 1604 (TTAB 2000); and In re Sunmarks Inc., 32 USPQ2d 1470 (TTAB 1994).
Moreover, unlike the facts in Juice Generation, Inc. v. GS Enters. LLC, 740 F.3d 1334,
115 USPQ 2d 1671, 1673 (Fed Cir. 2015), where the record included examples of 25
registered or unregistered marks that included the phrase “PEACE LOVE,” the only
evidence of record is the two cited marks. We do not find two references to BLITZ
sufficient to establish that the mark is weak. As such, we do not find Applicant’s
argument persuasive.
Moreover, BLITZ is an arbitrary term as used in connection with restaurants.
BLITZED, on the other hand, is an adjective defined as “very drunk,”4 and therefore
may take on a suggestive meaning in connection with “bar services.”
We will discuss each of the cited registrations separately, starting with
Registration No. 4487813 for the mark PASTA BLITZ for “restaurant services
featuring Italian cuisine.” With respect to this citation, the Examining Attorney
clarified that this registration served as a basis for refusal solely to Applicant’s
“restaurant services,” specifically stating that it does not apply to Applicant’s “bar

4 Definition from Merriam-Webster.com attached as exhibit to Response dated July 7, 2015,
TSDR at p. 5.

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services.” Examining Attorney’s Brief, 6 TTABVUE 5. See TMEP § 1205.02 (April
2016).
A. Cited Registration No. 4487813 – PASTA BLITZ.
1. Similarity or dissimilarity of the marks.
We start our analysis with a determination of the similarity of the marks. The
marks at issue are BLITZ and PASTA BLITZ. In comparing the marks we must
consider the appearance, sound, connotation and commercial impression of the marks
at issue. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772,
396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). 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.” Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir.
2012) (citation omitted). Moreover, the emphasis must be on the recollection of the
average purchaser who normally retains a general, rather than specific, impression
of trademarks. In re Cynosure, Inc., 90 USPQ2d 1644, 1645 (TTAB 2009), citing
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
While “the similarity or dissimilarity of the marks is determined based on the
marks in their entireties … there 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 a consideration of the marks in their entireties.” In
re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
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Although there is no mechanical test to select a "dominant" element of a
compound word mark, consumers would be more likely to perceive a fanciful or
arbitrary term, rather than a descriptive or generic term, as the source-indicating
feature of the mark. See, In re Dixie Rests., Inc., 41 USPQ2d at 1533-34 (affirming
TTAB’s finding that "DELTA," not the disclaimed generic term "CAFE," is the
dominant portion of the mark THE DELTA CAFE).
The services in the cited registration are “restaurants featuring Italian cuisine.”
“Pasta” is “Italy’s most famous staple.”5 As such, the word “PASTA” in the cited mark
is descriptive and weak.6 The word “BLITZ” is arbitrary and the dominant portion of
the mark, and as such should be afforded the most weight in evaluating the mark.
See Stone Lion Capital Partners, LP v. Lion Capital LLP, 110 USPQ2d 1157, 1161
(Fed. Cir. 2014) (In considering the similarity of the marks STONE LION CAPITAL
and LION CAPTAL, the Board “reasoned that ‘LION’ was ‘dominant’ in both parties’
marks … [and the Board correctly accorded] little weight to the adjective ‘STONE’ on
the ground that it did not ‘distinguish the marks in the context of the parties’
services.’”).

5 We take judicial notice of the article in Grolier Multimedia Encyclopedia on Italian
cuisine, which states “(f)oods based on grains, particularly wheat, form the foundation of
Italian cuisine. Italy's most famous staple, pasta, is made from hard, durum wheat.”
Armentrout, Jennifer. "Italian Cuisine." Grolier Multimedia Encyclopedia. Grolier Online
http://gme.grolier.com/ article?assetid=0150885-0.

The Board may take judicial notice of information from encyclopedias. Productos Lacteos
Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1934 n.6 (TTAB
2011).

6 As noted above, the term “PASTA” was disclaimed in the registration.
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Applicant has adopted the dominant portion of the cited mark. Applicant cannot
avoid likelihood of confusion by adopting Registrant’s entire mark and adding
subordinate matter thereto. See Giant Food, Inc. v. Nation's Foodservice, Inc., 218
USPQ 390, 395 (Fed. Cir. 1983); see also: Hewlett-Packard Co. v. Packard Press Inc.,
62 USPQ2d 1001, 1003 (Fed. Circ. 2002); In re Jump Designs LLC, 80 USPQ2d 1370,
1375 (TTAB 2006). As such, we find the two marks to be similar and that the first du
Pont factor favors a likelihood of confusion.
2. Similarity of the services, the channels of trade and the class of
customers.
We continue our analysis with the second and third du Pont factors, the similarity
of the services, the channels of trade, and the class of customers. When determining
the relationship between the services,
[i]t is well settled that the issue of likelihood of confusion
between applied-for and registered marks must be
determined on the basis of the goods [and services] as they
are identified in the involved application and cited
registration, rather than on what any evidence may show
as to the actual nature of the goods, their channels of trade
and/or classes of purchasers.
In re Total Quality Group Inc., 51 USPQ2d 1474, 1476 (TTAB 1999). See also Stone
Lion Capital Partners, 110 USPQ2d at 1161-1162.
We note that as identified, Applicant’s restaurant services are not limited to any
specific type of restaurant or cuisine and therefore encompass a restaurant featuring
Italian cuisine. Accordingly, the services are in-part legally identical to the services
in the cited registration.
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It is well established that absent restrictions in the application and registration,
legally identical services are presumed to travel in the same channels of trade to the
same class of purchasers. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d, 1905, 1908
(Fed. Cir. 2012). Here, because the services are in-part identical, they are presumed
to travel in the same channels of trade to the same classes of purchasers.
Further, it is of note that Applicant did not contest the relationship between the
services in either his brief or his reply brief.
3. Conclusion.
After considering all the evidence and argument on the relevant du Pont factors
regarding likelihood of confusion between Applicant’s mark BLITZ (in standard
characters) for “restaurant services” and the cited mark PASTA BLITZ (in standard
characters) for “restaurant services featuring Italian cuisine,” we find that there is a
likelihood of confusion.
B. Cited Registration No. 4118728 – BLITZED.
Next, we look at cited Registration No. 4118728.
1. Similarity of the services, the channels of trade and the class of
customers.
We start our analysis with the second and third du Pont factors, the similarity of
the services, the channels of trade, and the class of customers. As discussed above,
we determine the similarity between the services based on the recitation of services.
In re Total Quality Group Inc., 51 USPQ2d at 1476 and Stone Lion Capital, 110
USPQ2d at 1161-1162.
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In this case, the services identified in the application (restaurant and bar services)
are identical to services identified in the cited registration (bar services and
restaurant services), and therefore are presumed to travel in the same channels of
trade to the same classes of purchasers. Viterra, 101 USPQ2d at 1908. Further, as
with the cited registration for PASTA BLITZ, Applicant does not address these
factors in his brief or reply brief.
Accordingly, we find that the second and third du Pont factors favor a finding of
likelihood of confusion.
2. Similarity of the marks.
We next determine the similarity or dissimilarity of the marks in their entireties,
keeping in mind that “[w]hen marks appear on virtually identical services, the degree
of similarity necessary to support a conclusion of likelihood of confusion declines.”
Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d
1698, 1700 (Fed. Cir. 1992).
The marks at issue are “BLITZ” and “BLITZED.” Applicant argues that
“Applicant’s mark has a different visual appearance … than the Registered Mark.”
Brief, 4 TTABVUE 5. Applicant also argues that the marks have different meanings.
Applicant defines “blitz” as “a military attack in which many bombs are dropped from
airplanes, a fast and powerful effort, or a sudden attack or effort to stop or end
something”7 and as mentioned above, defines “blitzed” as “very drunk.”8

7 Definition from Merriam-Webster.com attached as exhibit to Response dated July 7, 2015,
TSDR at p. 5.
8 See fn 4.
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In response, the Examining Attorney notes that “it is not clear that consumers
would recognize these separate meanings as BLITZED is just a different form of
BLITZ.” Examining Attorney’s Brief, 6 TTABVUE 4. In support of this position, the
Examining Attorney submitted the following definitions from THE AMERICAN
HERITAGE DICTIONARY:
“Blitz”
1. a. A blitzkrieg
b. A heavy aerial bombardment.
2. An intense campaign: a media blitz focuses on young
voters.
3. Football. A sudden charge upon the quarterback by one
or more of the linebackers or defensive backs when the
ball is snapped. Also call red-dog.
“Blitzed, blitzing, blitzes.
1. To subject to a blitz
2. Football. To rush (the quarterback) in a blitz.
Football – To carry out a blitz.
Id. at 10.9
The meaning of the term “blitzed” depends on the actual services offered. For
example, if Applicant and Registrant’s restaurants and bars are sports themed

9 The Examining Attorney requested that we take judicial notice of the definitions of “blitz”
and “blitzed” from THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE,
5th Edition © 2015 Houghton Mifflin (www.ahdictionary.com/word/search.html?g=blitz).
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). Accordingly, we grant the Examining Attorney’s request.

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restaurants and bars, “blitzed” will likely connote football maneuvers. On the other
hand, in the context of a bar that is not sports-themed, “blitzed” may simply connote
a heavy drinking atmosphere. Since the identifications of services do not restrict the
types of restaurant and bars offered by Applicant and Registrant under the marks
BLITZ and BLITZED, we must assume that they cover all types, including sports-
themed restaurants and bars.
As such, we find that the marks are similar in appearance, sound and meaning
when applied to the relevant services, and that the first du Pont factor supports a
holding of likelihood of confusion.
3. Conclusion
Having considered all the evidence and argument on the relevant du Pont factors,
regarding likelihood of confusion between Applicant’s mark BLITZ (in standard
characters) for “restaurant and bar services” and the cited mark BLITZED (in
standard characters) for the same services, we find that there is a likelihood of
confusion.
Decision: The refusal to register Applicant’s mark BLITZ is affirmed with respect
to “restaurant services” on the basis of cited Registration No. 4487813. We also affirm
the refusal to register Applicant’s mark, with respect to all of the recited services in
the Application, on the basis of cited Registration No. 4118728.