Kahiki Foods, Inc.

Trademark Trial and Appeal Board

Oct 31, 2019

87648828 (T.T.A.B. Oct. 31, 2019)

This Opinion is Not a
Precedent of the TTAB

Hearing: September 4, 2019 Mailed: October 31, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Kahiki Foods, Inc.
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Serial No. 87648828
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Roger A. Gilcrest of Ice Miller LLP,
for Kahiki Foods, Inc.
Corinne Kleinman, Trademark Examining Attorney, Law Office 122,
John Lincoski, Managing Attorney.
_____

Before Coggins, English and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Kahiki Foods, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark BOWL & STIX (in standard characters) for:
Oriental and Pacific rim cuisine prepared foods, namely, frozen and
chilled entrees consisting primarily of meat, fish, poultry or vegetables;
frozen tempura kits consisting primarily of meat, fish poultry or
vegetables; prepared stir-fry meals comprised primarily of meat and
vegetables; prepared oriental and pacific rim cuisine meals comprised
primarily of meat and containing some rice, and frozen and chilled
spring rolls
Serial No. 87648828
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in International Class 29.1 The Application contains the following Mark Statement:
“The mark consists of standard characters, without claim to any particular font style,
size, or color.”
The Examining Attorney refused registration on the ground that Applicant’s
specimen of use does not show use in commerce of a substantially exact
representation of the applied-for mark in the drawing within the meaning of
Trademark Act Sections 1 and 45, 15 U.S.C. §§ 1051 and 1127, and Trademark Rules
2.34(a)(1)(iv) and 2.56(a), 37 C.F.R. §§ 2.34(a)(1)(iv), 2.56(a).
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. Applicant and the Examining Attorney
filed briefs and participated in an oral hearing before the Board. We affirm the refusal
to register.
Below and to the left is Applicant’s mark as shown in the drawing of the
Application. Below and to the right is the specimen of use filed in support of the
Application.2

1 Application Serial No. 87648828 filed on October 17, 2017, under the Trademark Act Section
1(a), 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and first use in
commerce since at least as early as August 14, 2017.
2 Application, TSDR 6-7. Page references herein to the application record refer to the online
database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system. All
citations to documents contained in the TSDR database are to the downloadable .pdf versions
of the documents. References to the briefs on appeal refer to the Board’s TTABVUE docket
system. Coming before the designation TTABVUE is the docket entry number; and coming
after this designation are the page references, if applicable.

Serial No. 87648828
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(Drawing)

(Specimen)
I. Evidentiary Record
With the first Office Action, the Examining Attorney made the following items of
record:
• Internet page capture from the online ENGLISH OXFORD LIVING DICTIONARIES
of the definition of “Bowl.”3
• Internet page capture from Applicant’s website promoting Applicant’s food
products in connection with the mark BOWL & STIX.4
• Internet page capture from the LUVO website promoting the company’s
prepared food products “in our convenient paperboard bowl.”5
• Internet page capture from the HEALTHY CHOICE website promoting the
company’s prepared food products offered in a bowl.6

3 Office Action of January 18, 2018, TSDR 7-10.
4 Id., TSDR 11-14.
5 Id., TSDR 15-18.
6 Id., TSDR 19-21.
Serial No. 87648828
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• Internet page capture from the KASHI website promoting the company’s
prepared food products offered in a bowl.7
• Internet page capture from the PRINGLES website promoting the company’s
prepared food products described as “stix.”8
• Internet page capture from the SRIRACHA website promoting the company’s
seasoning product as “Seasoning Stix.”9
• Internet page capture from the online ENGLISH OXFORD LIVING DICTIONARIES
of the definition of “Stick.”10
• Internet page capture from the FOOD NETWORK website, providing a recipe for
“Seafood Spring Rolls ‘Sticks’ with a Citrus Dipping Sauce.”11
• Internet page capture from the EPICURIOUS website, providing a recipe for
“Shrimp and Sesame Sticks with Apricot Dipping Sauce.”12
With its Response to the first Office Action, Applicant made the following items of
record:
• USPTO TESS page captures of third party registrations for the marks MEIN
BOWL, POLO BOWL, HOT-TO-GO BOWLS, NISSIN BOWL NOODLES,
BEEF BOWL, BOWL NOODLE SOUP, CANTINA BOWL, MIXING BOWL
and KOMAWAY BEST BOWL (Cancelled).13
• Applicant’s prior registrations for the marks BOWL AND ROLL and BOWL &
ROLL.14
• USPTO TESS page captures of third party applications and registrations for
marks in which portions have been crossed out and other letters or words are
shown above, below or to the side in the nature of visually substituted text. A
number of the cited applications have been abandoned and registrations have
been cancelled. The following are representative:15

7 Id., TSDR 22-23.
8 Id., TSDR 24.
9 Id., TSDR 25-26.
10 Id., TSDR 27-36.
11 Id., TSDR 37-40.
12 Id., TSDR 41-47.
13 Response to Office Action of May 21, 2018, TSDR 29-49.
14 Id., TSDR 50-53.
15 Id., TSDR 54-91.
Serial No. 87648828
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o LONDON GROUP EMBRACING PEOPLE WITH DISABILITIES “with
a red overstrike through ‘dis’ in ‘disabilities’”
o THE BASICS SEX WITH DR. MO “the sics of Basics is crossed out with
a fuchsia x. Sex is written above the crossed out text, with Dr. Mo …
written below the crossed out text.”
o EASY DOES DID IT. “the word ‘DOES’ … is crossed out with a stylized
half circle line that is followed by the words ‘DID’ and ‘IT.’”
o PROUDLY MADE GROWN IN AMERICA “with the term ‘Made’
crossed out and the term ‘Grown’ above.” (Application Abandoned)
o NOT US P “with a crossed out P” (Application Abandoned)
o DREAMER DOER “the word ‘Dreamer’ [is] crossed out above the word
‘Doer’.” (Application Abandoned)
o WAIT 'TIL NEXT. .. 2016 THIS YEAR! “The word next is crossed out.”
(Application Abandoned)
o WAIT 'TIL NEXT THIS YEAR “with the word NEXT crossed out”
(Application Abandoned)
o NOLA HOLLYWOOD “the term ‘HOLLYWOOD’ [is shown] with
‘HOLLY’ crossed out, and the stylized term ‘NOLA’ featured above the
crossed-out ‘HOLLY’.”
o CARPE JUVENIS DIEM DON'T JUST SEIZE THE DAY. SEIZE YOUR
YOUTH. “with the word ‘DIEM’ crossed out and the word ‘JUVENIS’
positioned above it in a stylized script.”
o YOU ARE WHAT YOU EAT APPLY “with the word ‘EAT’ crossed out”
(Application Abandoned)
o HEART FAILURE SUCCESS PROGRAM “[t]he word ‘Failure’ is
crossed out with a red diagonal line from the upper left of the corner to
the lower right corner of the word. Above the word ‘Failure,’ starting
above the letter ‘I’ is the word ‘Success’ written in red and angled slightly
upward.”
• USPTO TESS page captures of third party intent-to-use applications for marks
in which portions have been crossed out and other letters or words are shown
above, below or to the side in the nature of visually substituted text:16
o NOLA HOLLYWOOD “the term ‘HOLLYWOOD’ [is shown] with
‘HOLLY’ crossed out, and the stylized term ‘NOLA’ featured above the
crossed-out ‘HOLLY’.” [As noted above, this application matured to
registration]

16 Id., TSDR 92-120.
Serial No. 87648828
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o $TREET DREAM$ WHAT WOULD YOU TRADE FOR ONE TEN
MILLION? “with the word ‘ONE’ crossed out with a red ‘X’ and replaced
with the … word ‘TEN’.” (Application Abandoned)
o ALL THINGS WINGS CONSIDERED with “the word ‘THINGS’ crossed
out” [This application matured to registration]
o HEAVEN HELL YEAH! “with … the word hell … crossed out with an
x”. (Application Abandoned)
The Examining Attorney did not make any evidence of record with the final Office
Action; and Applicant did not make any evidence of record with its Request for
Reconsideration.
With the denial of Applicant’s Request for Reconsideration, the Examining
Attorney made the following items of record:
• Internet page capture from the THOUGHTCO website, showing an article
entitled “When and How to Use Strikethrough”17
• WIKIPEDIA definition of “Strikethrough”18
• Internet page capture from the GRAMMARLY blog, showing an article entitled
“Strikethrough and Why It’s so Popular”19
• Internet page capture from the NEW YORK TIMES website, showing an article
entitled “Crossing Out, for Emphasis”20
• Internet page capture from THE BRANDING JOURNAL website, showing an
article entitled “From ‘Brian’s Wish’ to ‘Shatterproof’: a brilliant rebrand
strategy for an American NGO”21
• Internet page capture from THESEMPOST website, showing an article entitled
“Using Strikethrough Text on Google AdWords Ads”22

17 Denial of Request for Reconsideration of December 31, 2018, TSDR 5-11.
18 Id., TSDR 12-15.
19 Id., TSDR 16-19.
20 Id., TSDR 20-25.
21 Id., TSDR 26-32.
22 Id., TSDR 33-38.
Serial No. 87648828
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• Internet page capture from the FRITINANCY blog, showing an article entitled
“Stricken”23
• Internet page capture from the UXMOVEMENT website, showing an article
entitled “7 Design Strategies for a Successful Pricing Table”24
• Internet page capture from the SEER website, showing an article entitled “10
Quick Ways to Increase your Site’s Conversion Rate”25
II. Applicable Law
A use-based trademark application must include one specimen for each class,
showing use of the mark in commerce on or in connection with the goods. Trademark
Act Section 1(a), 15 U.S.C. § 1051(a)(1); Trademark Rules 2.34(a)(1)(iv), 2.56(a),
37 C.F.R. §§ 2.34(a)(1)(iv), 2.56(a). If the specimen submitted does not show the
applied-for mark, the Examining Attorney will refuse registration because the
applicant has not provided evidence of use of the applied-for mark in commerce
pursuant to Trademark Act Sections 1 and 45, 15 U.S.C. §§ 1051 and 1127. In other
words, “the mark must be a substantially exact representation of the mark as used
on or in connection with the goods.” Trademark Rule 2.51(a), 37 C.F.R. § 2.51(a).
The drawing of an application shows the mark sought to be registered. Trademark
Rule 2.52, 37 C.F.R. § 2.52. The main purpose of the drawing is to provide notice of
the nature of the mark sought to be registered. The mark in the drawing must agree
with the mark as used on the specimen in a use-based application. See TRADEMARK
MANUAL OF EXAMINING PROCEDURE (TMEP) (Oct. 2018) § 807.

23 Id., TSDR 39-55.
24 Id., TSDR 56-70.
25 Id., TSDR 71-84.
Serial No. 87648828
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There are two types of trademark application drawings, “standard character
(typed) drawings” and “special form drawings.” See Trademark Rules 2.52(a)-(b); 37
C.F.R. §§ 2.52(a)-(b). A standard character (typed) drawing of the mark is one
comprising “words, letters, numbers, or any combination thereof without claim to any
particular font style, size, or color” Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a).
An applicant may submit a standard character drawing if:
(1) The application includes a statement that the mark is in standard
characters and no claim is made to any particular font style, size, or
color;
(2) The mark does not include a design element;
(3) All letters and words in the mark are depicted in Latin characters;
(4) All numerals in the mark are depicted in Roman or Arabic numerals;
and
(5) The mark includes only common punctuation or diacritical marks.”
Trademark Rules 2.52(a)(1)-(5), 37 C.F.R. §§ 2.52(a)(1)-(5).
“Applicants who seek to register a mark that includes a two or three-dimensional
design; color; and/or words, letters, or numbers or the combination thereof in a
particular font style or size must submit a special form drawing.” Trademark Rule
2.52(b), 37 C.F.R. § 2.52(b). A special form drawing “presents a mark comprised, in
whole or in part, of special characteristics such as elements of design or color, style(s)
of lettering, or unusual form(s) of punctuation.” TMEP § 807.04(a). “A special form
drawing is required if words, letters, or numerals are presented in a distinctive form
that engenders an uncommon or ‘special’ commercial impression that would be
altered or lost were registration to issue based on a standard character drawing.”
TMEP § 807.04(b).
Serial No. 87648828
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For example, where punctuation marks on the submitted specimen result in a
mark with a different commercial impression than the mark shown on the standard
character (typed) drawing, the drawing cannot be amended to add the punctuation
because it would result in a material alteration. Therefore, the applicant would be
required to submit a new specimen showing the mark without the punctuation (if it
is able to do so). See In re Guitar Straps Online LLC, 103 USPQ2d 1745, 1751-52
(TTAB 2012) (finding the mark GOT STRAPS on the drawing not a substantially
exact representation of the mark GOT STRAPS? on the specimen).
“The commercial impression of a mark is engendered by the mark as a whole and,
more often than not, by the particular display or arrangement of the components
thereof.” In re United Servs. Life Ins. Co., 181 USPQ 655, 656 (TTAB 1973) (holding
FOR LIFE INSURANCE SEE US not registrable without a special form drawing
because the specimen showed the “US” portion of the mark in significantly larger
lettering and underlined, suggesting a double entendre because “US” could stand for
applicant’s name “United Services” or for the pronoun “us”). Therefore:
the proper test as to the suitability of a typed drawing is whether the
mark that is stylized or has a design element engenders an uncommon
or “special” commercial impression that would be altered or lost were
registration to issue based on a typed drawing. … Each case requires a
careful factual analysis of whether the stylized features evidenced by
the specimens of use of a mark sought to be registered in typed form are
sufficiently ancillary to the mark’s natural commercial impression that
representation in typed form may be accepted as appropriate.
In re Morton Norwich Prods., Inc., 221 USPQ 1023, 1023 (TTAB 1983) (holding
LABID not registrable without a special form drawing because the specimen showed
the letter “a” in smaller lettering with a diacritical accent that set off the “BID”
Serial No. 87648828
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portion of the mark, when the word “BID” had an accepted meaning as applied to
drug prescriptions, i.e., “twice a day”).
In short, “the mark as actually used must not be so entwined (physically or
conceptually) with other material that it is not separable from it in the mind of the
consumer.” In re Yale Sportswear Corp., 88 USPQ2d 1121, 1123 (TTAB 2008)
(affirming refusal to register because applicant’s drawing of the mark presented as
UPPER 90 was not a substantially exact representation of the mark as used in
commerce in the form UPPER 90°) (citing In re Chem. Dynamics Inc., 839 F.2d 1569,
5 USPQ2d 1828, 1830 (Fed. Cir. 1988)). See also In re AFG Indus. Inc., 17 USPQ2d
1162, 1164 (TTAB 1990) (special form drawing is required for marks that contain
superscripts, subscripts, exponents, or other characters that are not in the USPTO’s
standard character set.)
III. Arguments and Analysis
Applicant does not disagree with the requirements of the above-cited provisions of
the Trademark Act, the Trademark Rules of Practice, the TMEP or the holdings of
our decisions discussed above. Applicant argues that the factual underpinnings of the
cited decisions are inapplicable here, because the marks involved in those cases did
not involve overstricken letters that eliminated words.26
The core of Applicant’s argument is that:
The subject mark [in Applicant’s specimen] simply uses an overstricken
word as would be done in normal text editing practice (and that would
immediately be perceived as such), and leaves the viewer with the
singular impression that the product is called “BOWL & STIX” (rather

26 Applicant’s Brief, 14 TTABVUE 7, 9-10, 15, and 18.
Serial No. 87648828
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than BOWL & ROLL). … That is, the specimen, even though it
eliminates the word ROLL, is substantively identical to the drawn mark
BOWL & STIX, and thus the drawing indeed substantially exactly
represents the mark as used in commerce … as demonstrated by the
specimen.27
In support of its argument that the mark BOWL & STIX should be registered
based upon the specimen made of record, Applicant cites to and made of record a
number of third party applications and registrations for marks in which portions have
been crossed out and other letters or words are shown above, below or to the side in
the nature of visually substituted text. A number of the cited applications have been
abandoned and registrations have been cancelled.28
Third-party applications are evidence only of the fact that they have been filed, In
re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1270 n.8 (TTAB 2009), and have no
probative value. Abandoned applications have “‘no probative value other than as
evidence that the applications [were] filed.’” Edwards Lifesciences Corp. v. VigiLanz
Corp., 94 USPQ2d 1399, 1403 n.4 (TTAB 2010). An expired or cancelled registration
is evidence of nothing but the fact that it once issued. Sunnen Prods. Co. v. Sunex
Int'l Inc., 1 USPQ2d 1744, 1747 (TTAB 1987).
As to the active third party registrations cited and made of record by Applicant,
“[i]t has been said many times that each case must be decided on its own facts.” In re
Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB 2010) (internal citation omitted). See
also, In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)

27 Id., 14 TTABVUE 11.
28 Response to Office Action of May 21, 2018, TSDR 54-120; Applicant’s Brief, 14 TTABVUE
10-12.
Serial No. 87648828
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(“Even if some prior registrations had some characteristics similar to [Applicant’s]
application, the PTO’s allowance of such prior registrations does not bind the Board
or this court.”). See also In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632,
1635 (Fed. Cir. 2016) (the USPTO must “examine all trademark applications for
compliance with each and every eligibility requirement” regardless of the prior
treatment of applications involving similar marks). “Neither the Board nor any
Trademark Examining Attorney is bound by decisions of Examining Attorneys to
register prior marks.” In re USA Warriors Ice Hockey Program, Inc., 122 USPQ2d
1790, 1793 n.10 (TTAB 2017). See also In re Merrill Lynch, Pierce, Fenner & Smith
Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir. 1987) (“Each application for
registration must be considered on its own merits.”). These prior decisions are
particularly apt here, given that Applicant did not make of record the specimens
submitted during prosecution of the underlying applications to these third-party
registered marks.
Applicant further argues, without factual support, that (1) a normal reading of the
mark on the specimen of record is BOWL & STIX, with everything else on the
specimen being merely extraneous and given no textual pronunciation or meaning,
and (2) if a consumer were asked to recommend Applicant’s goods to someone else,
having seen the specimen of record, he or she would identify the product as BOWL &
STIX.29 There is nothing in the record to justify these conclusions, and “[a]ttorney

29 Applicant’s Brief, 14 TTABVUE 15, 20.

Serial No. 87648828
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argument is no substitute for evidence.” Zheng Cai v. Diamond Hong, Inc., 901 F.3d
1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-
Probe, Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)).
The Examining Attorney argues that the marks in the drawing and specimen are
not substantially exact, as required by Trademark Rule 2.51(a), because “the mark
on the specimen includes stylization and/or a design element (the crossed out wording
‘ROLL’ and substitute term ‘STIX’) that creates an uncommon or ‘special’ commercial
impression.”30 In other words, says the Examining Attorney, “when the mark on the
specimen is displayed in such a way that it conveys something more than what the
standard character drawing is conveying or can convey with standard characters,
then the drawing is not a substantially exact representation of the mark as it appears
on the specimen.”31
In support of the Office’s position, the Examining Attorney cites to articles from
the THOUGHTCO, GRAMMARLY, NEW YORK TIMES, THE BRANDING JOURNAL,
THESEMPOST, FRITINANCY, UXMOVEMENT and SEER websites reporting that crossed-
out words accompanied by replacement wording can demonstrate: textual irony, the
history of document changes, the deliberate change of thought, a way of saying
something without really saying it, ironic commentary, rebranding by the change of
commercial impression, an eye-catching form of advertising, a dual meaning, and an

30 Examining Attorney’s Brief, 16 TTABVUE 4-5, 11.
31 Id., 16 TTABVUE 6.
Serial No. 87648828
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indication of differences or the value of a new offer from a prior one.32 We find that
none of these vehicles of intended meaning can be conveyed by a standard character
(typed) drawing.
In fact, Applicant concedes that the crossed-out word “Bowl” accompanied by the
replacement wording “Stix” in Applicant’s specimen is intended to show that BOWL
& STIX is a follow-on product to Applicant’s prior product, BOWL & ROLL.33
Applicant’s intended commercial impression conveyed by the specimen is not, and
cannot be, captured by the standard character (typed) drawing BOWL & STIX
submitted as part of the Application. We therefore find that the drawing of
Applicant’s mark is not a substantially exact representation of the mark as it appears
on the specimen made of record.
IV. Decision
The refusal to register Applicant’s mark BOWL & STIX on the ground that
Applicant’s specimen of use does not show a substantially exact representation of the
applied-for mark in the drawing is affirmed.

32 Denial of Request for Reconsideration of December 31, 2018, TSDR 5-84; Examining
Attorney’s Brief, 16 TTABVUE 6-8.
33 Applicant’s Request for Reconsideration of December 12, 2018, TSDR 7.