Mango’s Tropical Café, LLCv.Tango Mango, Inc.

Trademark Trial and Appeal Board

May 1, 2015

No. 92055269 (T.T.A.B. May. 1, 2015)

This Opinion is Not a
Precedent of the TTAB

Hearing Date: March 24, 2015
Mailed: May 1, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Mango’s Tropical Cafe, LLC1
v.
Tango Mango, Inc.
_____

Cancellation No. 92055269
_____

Richard S. Ross, Esq.
for Mango’s Tropical Cafe, LLC.

Rebecca J. Stempien Coyle of Levy & Gradinetti
for Tango Mango, Inc.
_____

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

Opinion by Wellington, Administrative Trademark Judge:
Mango’s Tropical Cafe, LLC (“Petitioner”) petitions to cancel Registration
No. 3328822 for the standard character mark TANGO MANGO for “carry-out
restaurants; restaurant services; restaurants; [and] take-out restaurant services” in

1 Pursuant to a stipulation, Petitioner’s name has been changed from Mango’s Tropical
Cafe, Inc. Accordingly, the caption for this proceeding has been amended. TBMP § 512.02
(2014). We note that assignments of all Petitioner’s pleaded registrations are recorded with
the USPTO’s Assignment Branch at Reel/Frame 5112/0088.
Cancellation No. 92055269
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International Class 43. The registration is owned by Tango Mango, Inc.
(“Respondent”) and was issued on November 6, 2007.2
Petitioner claims likelihood of confusion with several “Mango” formative marks,
as set forth with particularity, infra, which Petitioner asserts it has used in
commerce in association with restaurant and bar services since 1991. Petitioner
also pleads a claim of “abandonment” that is based on various assignments of the
subject registration, including an assignment to an entity that “does not exist as a
legal entity and therefore cannot possibly be using the mark for which registration
has been obtained.”3
An oral hearing was held on March 24, 2015, at the request of Respondent, and
only Respondent’s counsel, Ms. Coyle, appeared before the Board.4
I. The Parties’ Cross-Motions for Summary Judgment and Alternative Case
Resolution (ACR) Agreement
In the course of this cancellation proceeding, the parties filed cross-motions for
summary judgment. The Board denied these motions finding, inter alia, that
genuine disputes of material fact exist which precluded decision by summary
judgment.5 Petitioner and Respondent shortly thereafter entered into an ACR

2 The registration alleges first use anywhere and in commerce on July 25, 2005, and is
based on an application filed on February 23, 2007.
3 Petition to Cancel, as amended, at paragraph 19. 18 TTABVUE 10.
4 Prior to the hearing, Petitioner informed the Board that it waived its right to attend the
oral hearing. 48 TTABVUE.
5 34 TTABVUE.
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agreement and filed a copy with the Board which, in turn, was noted and approved.6
The agreement contains, inter alia, the following stipulations:
1. The Board, in lieu of a full trial, may employ its ACR procedure to resolve
this proceeding based on the parties’ cross-motions for summary
judgment, responses and reply briefs filed in support thereof, and evidence
and testimony submitted therewith, including the supplementation to
their respective motions for summary judgment, as provided below, the
subject Registration No. 3328822, and Petitioner’s pleaded registrations
submitted with its motion for summary judgment.
2. The Board may consider the parties’ cross-motions for summary judgment
and reply briefs, and supplementation thereto, as the parties’ final briefs
on the merits.
3. The parties may not submit and the Board will not consider any
additional briefs or evidence for purposes of the ACR trial and decision,
except for the permitted supplementation limited to the issues of (a) the
commercial impressions of the parties' marks, (b) the scope of protection
that should be afforded petitioner’s marks in light of the extent of the
fame, if any, of petitioner’s marks contending with the strength or
weakness of petitioner’s marks in view of the evidence of third-party
usage of the term MANGO in relation to restaurant and bar services, and
(c) Petitioner's abandonment claim, namely whether the original
assignment of respondent’s underlying application from Tango Mango,
LLC to Knightspin, LLC was an invalid assignment or whether
identifying Tango Mango, LLC as the assignor in the original assignment
is also a curable mistake.
4. The evidence submitted in connection with the parties’ respective cross-
motions for summary judgment and reply briefs and permitted
supplementation is authentic for purposes of admission into the evidence
and deemed properly of record for purposes of the ACR trial and the
Board’s ACR final decision. The parties have agreed that the Declarations
of Joshua Wallack and Shirley Spinetta submitted in support of their
respective summary judgment motions shall be deemed testimony and
subject to the parties' rights to cross-examine testimonial witnesses, as set
forth in the below schedule.

6 35 and 36 TTABVUE, respectively.
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5. The parties maintain all evidentiary, relevance, and other objections and
arguments made in their respective briefs and reply briefs on the cross-
motions for summary judgment and any objections which may be
interjected in their supplementation of their respective motions for
summary judgment.
6. The Board may resolve any genuine disputes of material fact, including
the drawing of reasonable inferences from any such fact(s), presented by
the parties’ cross-motions and related filings noted above.
7. The parties reserve the right to request an oral hearing on the merits by
no later than their respective final supplementation submissions to the
Board;
8. The Board will not entertain any further extensions of time for deadlines
set forth in this order absent a showing of extraordinary circumstances.
9. Any party to this proceeding who is dissatisfied with the ACR decision of
the Board retains the right to appeal to the United States Court of
Appeals for the Federal Circuit or to appeal by civil action in a United
States District Court in accordance with Trademark Rule 2.145 and
TBMP §§ 900 and 901 (3d ed. rev. 2 2013).
Pursuant to the Agreement, the parties filed a stipulation of facts.7 In particular
the parties stipulated that Petitioner is the owner of the following registrations:

7 39 TTABVUE and 40 TTAVUE, respectively.
8 Issued August 14, 2012, based on an application filed on January 11, 2012.
9 Issued October 16, 2012, based on an application filed on December 22, 2011.
Mark Reg. No. Goods and Services
MANGO’S
(standard characters)
41907318 Nightclub services, in Class 41
Restaurant and bar services, in Class 43
MANGO’S TROPICAL
CAFE
(standard characters)
42246439 Nightclub services, in Class 41
Restaurant and bar services, in Class 43
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10 Issued June 27, 2006; §§ 8 and 15 declaration accepted and acknowledged.
11 Issued Aug. 28, 2007; §§ 8 and 15 declaration accepted and acknowledged, and based on
an application filed on November 1, 2000.
12 Issued Oct. 7, 2008; §§ 8 and 15 declaration accepted and acknowledged, and based on an
application filed on October 25, 2000.
13 Issued Oct. 27, 2009, and based on an application filed on November 1, 2000.

(“Mambo Bar” disclaimed)
310890610 Restaurant and bar services, in Class 43

(“Tropical Cafe”
disclaimed)
328405711 Restaurant and bar services, in Class 42
351298412 Prepackaged foods, namely, entrees
consisting primarily of poultry, in Class 29
Computer services, namely, providing a
website featuring entertainment information
via a global computer network, namely,
concert information, nightlife information,
and entertainment information about music,
singing, dancing, music videos, in Class 41
370064813 Clothing, namely, infant’s and children’s
underwear and bodysuits, t-shirts,
sweatshirts, pants, sweatpants, shorts, tank-
tops, halter tops, hats, jackets, shirts and
sleepwear, in Class 25
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The parties also stipulated to the following:
• The underlying applications for the first two of the aforementioned
registrations owned by Petitioner were filed after Respondent’s involved
registration issued and neither application “received a refusal to register due
to Registrant’s mark.”
(¶ 2 of the Stipulation of Facts)

• “Prior to the issuance of the subject registration, an entity identified as
Tango Mango, LLC assigned all rights, title, and interest in the underlying
application to Knightspin, LLC. The assignment was executed on September
24, 2007 and was recorded with the USPTO’s Assignment Branch on
November 8, 2007 (two days after the subject registration issued).”
(¶ 6 of the Stipulation of Facts)

• “The subject registration was then assigned back to Tango Mango, LLC by
Knightspin LLC via a nunc pro tunc assignment effective September 20,
2010. This nunc pro tunc assignment was executed on April 30, 2012 and
recorded with the USPTO’s Assignment Branch on May 3, 2012.”
(¶ 7 of the Stipulation of Facts)

• “A corrective assignment was executed on April 30, 2012 and recorded on
November 6, 2013 confirming that the previous nunc pro tunc assignment
from Knightspin LLC to Tango Mango, LLC was in error and that the
receiving party should have been identified as Tango Mango, Inc. and not
Tango Mango, LLC.”
(¶ 8 of the Stipulation of Facts)

14 Issued July 7, 2009, based on an application filed on November 1, 2000.
364919214 Metal key chains, in Class 6
Postcards, greeting cards, calendars and
pens, in Class 16
Towels, in Class 24
Bottled drinking water, in Class 32
Smoker’s articles, namely, cigars, cigar
cutters, cigarette lighters not of precious
metal, and cigar boxes of non-precious metal,
in Class 34
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• A corrective assignment was executed on June 2, 2014, and recorded on June
2, 2014, confirming that the previous assignment of September 24, 2007, from
Tango Mango, LLC to Knightspin, LLC was in error and the conveying party
should have been identified as Tango Mango, Inc. and not Tango Mango,
LLC.
(¶ 9 of the Stipulation of Facts)

II. Evidentiary Objections
Petitioner has objected to certain materials, submitted by Respondent for the
first time with its ACR brief, because they purportedly contain “hearsay and [are]
without foundation.” Reply Brief, p. 1, fn. 1. The objected-to exhibits comprise
dictionary definitions of the word “tango”; “Caribbean Sea”; and “South America,”
all taken from the Merriam-Webster online dictionary and encyclopedia website.
Authoritative reference materials, including online versions that exist in printed
format or have regular fixed editions, have long been accepted and the Board
frequently takes judicial notice of such materials. Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB
2006). Accordingly, we have considered these definitions.
Petitioner has also objected to Respondent’s evidence of purported third-party
use of marks containing the term MANGO (or a derivative) as “inadmissible” and
“hearsay.” See Petitioner’s Brief at pp. 6-8 and Reply Brief at p. 3. Petitioner does
not specifically request that these materials be stricken from the record and we
decline to do so; rather, as addressed more fully later in this decision, we consider
the materials for what probative value they possess.
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III. Record
The record in this case consists of the pleadings and, by rule, the file of
Respondent’s involved registration. Trademark Rule 2.122(b)(1). In addition, and
pursuant to the parties’ ACR agreement, the record includes the materials
submitted in support of the parties’ cross motions for summary judgment as well as
materials with their ACR briefs. The additional materials, submitted with ACR
briefs, include definitions and supplemental declarations from the parties’ principal
witnesses. In particular, Petitioner submitted the definitions referenced above and
the supplemental declaration of Joshua Wallack, Petitioner’s chief operating officer,
with exhibits.15 Respondent, likewise, submitted a supplemental declaration of
Shirley Spinetta, Respondent’s president, with additional exhibits.
We have considered the entire record, and without providing an exhaustive list
of all materials filed, note that it includes the following:
• Screenshots of pages from Petitioner’s website mangostropicalcafe.com;16
• Printouts of USPTO records for Petitioner’s registrations;17
• Various articles and website printouts submitted for purposes of
demonstrating Petitioner’s purported fame;18

15 42 TTABVUE at 36. Exhibit 2 to the supplemental Wallack declaration was designated
as “confidential” and submitted separately at 41 TTABVUE (not viewable on USPTO public
website). In general, this exhibit consists of a summary described as Petitioner’s
“Advertising Initiatives – television, print and Internet.”
16 Exhibit 1 to Wallack Decl. and Wallack Supp. Decl. at 29 and 42 TTABVUE, respectively.
17 Exhibit B at 29 TTABVUE and Exhibit A at 42 TTABVUE.
18 Exhibits 1-3 to Wallack Decl. and Exhibit C, all at 29 TTABVUE; Exhibits 3 and 5 to
Wallack Supp. Decl. at 42 TTABVUE.
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• Printouts from third-party websites, including review sites such as Yelp
and TripAdvisor as well as websites for restaurants, discussing or
referencing restaurants with MANGO (or a derivative) in the name;19
• Copies of third-party registrations and applications obtained from PTO
records for marks containing the term MANGO (or a derivative);20 and
• Online telephone directory business listings (www.yellowpages.com) for
various states, including Arizona, California, Colorado, Connecticut,
Delaware, Florida, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine,
Maryland, Michigan, Nevada, New Jersey, New York, North Carolina,
Rhode Island, South Carolina, Texas, Virginia, Washington and
Wisconsin, for establishments with the term “Mango” (or a derivative) in
the name.21
IV. Petitioner’s Standing
Petitioner must have standing in order to prevail on either of its grounds for
cancellation. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-26 (Fed.
Cir. 1999); and Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185 (CCPA 1982). Here, there is no dispute and the record clearly establishes
Petitioner’s standing. In particular, the parties have stipulated to Petitioner’s
ownership of several registrations for marks including the term “Mango’s” used in
connection with restaurant services and Petitioner made of record evidence showing
these registrations are valid and subsisting. These demonstrated facts show that
Petitioner is more than a mere intermeddler and has a personal interest in bringing
this cancellation proceeding.

19 Exhibit 3 at 30 TTABVUE and Exhibits T through FF to Spinetta Supp. Declaration, 43
TTABVUE.
20 Exhibit 2 at 30 TTABVUE and Exhibits GG-HH to Spinetta Supp. Declaration and 43
TTABVUE.
21 Exhibit 3 at 30 TTABVUE.
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V. Claim of “Abandonment” Based on Invalid Assignment(s)
Petitioner has alleged and argued on summary judgment that Respondent has
abandoned its registered mark through non-use because of purported invalid
assignments of the underlying application for the registered mark. Specifically, on
summary judgment, petitioner relied on the following factual circumstances:
• The underlying application was filed by Respondent (“Tango Mango, Inc.”);

• Prior to the issuance of the subject registration, the underlying application,
which was filed by Respondent was assigned by an entity identified as Tango
Mango, LLC to Knightspin LLC;22

• The registration was then assigned back to Tango Mango, LLC via a nunc pro
tunc assignment;23 and

• A corrective assignment was filed confirming that the previous nunc pro tunc
assignment from Knightspin LLC to Tango Mango, LLC was in error and
that the receiving party should have been identified as Tango Mango, Inc.
and not Tango Mango, LLC.24

Petitioner argued on summary judgment that Tango Mango, LLC is a
nonexistent entity and, therefore, could not use or assign the Respondent’s
underlying application to Knightspin, LLC nor could Knightspin, LLC assign back
the mark to a nonexistent entity. Petitioner further argued that this was not a

22 Assignment recorded with the USPTO on November 8, 2007 at reel/frame 3657/0409.
Although the assignment was recorded one day after issuance of the registration, the
execution date of the assignment was September 24, 2007 according to the USPTO
assignment records.
23 Assignment recorded with the USPTO on May 3, 2012 at reel/frame 4772/0194.
24 Assignment was executed on April 30, 2012 and recorded with the USPTO on November
6, 2013, recorded at reel/frame 5150/0073.
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curable defect and that Respondent has abandoned the mark because of this alleged
invalid assignment.
In the order denying the cross-motions for summary judgment, the Board held
that the corrective assignment was “a permissible cure to the misidentification of
Tango Mango, LLC as the assignee in the nunc pro tunc assignment from
Knightspin, LLC,” citing to TMEP § 503.06(b) (October 2013); In re Abacab Int’l
Computers Ltd., 21 USPQ2d 1078 (Comm’r Pats. 1987).25 However, the Board
further noted that there was no corrective assignment on file with the USPTO as to
the original assignment of Respondent’s underlying application from “Tango Mango,
LLC” to “Knightspin, LLC.” Thus, there was no decision as to whether this original
assignment was also a curable mistake that has since been corrected.26
Subsequent to the Board’s summary judgment order, a second corrective
assignment was filed by Respondent confirming that the original assignment from
“Tango Mango, LLC” to Knightspin LLC was in error and that the assigning party
should have been identified as “Tango Mango, Inc.” The parties stipulated to the
existence of this second corrective assignment. (See bulleted point listed above
referencing ¶ 9 of the Stipulation of Facts, infra.).
To the extent that Petitioner’s abandonment claim, or any invalid assignment
claim, is based on the original assignment, we note that all defects in the subject

25 34 TTABVUE 15.
26 Assignment was recorded with the PTO on June 2, 2014, recorded at reel/frame
5293/0731.
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registration’s assignment history have now been cured. Accordingly, the claim of
abandonment based on an invalid assignment history is dismissed.
VI. Priority and Likelihood of Confusion
We now turn our attention to the ground of priority and likelihood of confusion.
Our determination under Trademark Act Section 2(d) is based on an analysis of all
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 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).
A. Priority
In a cancellation proceeding in which both parties own registrations, the
petitioner must prove priority of use. See Brewski Beer Co. v. Brewski Bros., Inc., 47
USPQ2d 1281 (TTAB 1998).
The parties may rely on the filing dates of the underlying applications for the
involved registration and the pleaded registrations as constructive use dates for
purposes of priority. M.C.I. Foods, Inc. v. Bunte, 96 USPQ2d 1544, 1550 (TTAB
2010); see also, J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 144 USPQ 435,
437 (CCPA 1965). Accordingly, Respondent may rely on its February 23, 2007 filing
date of the underlying application for the involved registration.27 A review of

27 Respondent’s registration contains allegations of first use of its mark anywhere and in
commerce as of July 25, 2005. However, these allegations are not evidence that the mark
was actually first used on this date. Had Respondent sought to rely on this earlier date for
purposes of priority, and it did not, it would have had to prove this earlier use.
Cancellation No. 92055269
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Petitioner’s pleaded registrations reveals that all but the first two (listed above, see
footnote nos. 8-14) are based on applications filed before February 23, 2007.
Accordingly, Petitioner can establish priority with respect to its pleaded
Registrations Nos. 3284057, 3108906, 3700648, 3512984, and 3649192.
However, with respect to Registrations Nos. 4190731 (MANGO’S) and 4224643
(MANGO’S TROPICAL CAFE), that is, the two pleaded registered marks without
stylization or design elements, Petitioner cannot rely on the underlying application
filing dates to establish its priority. Rather, it must establish by a preponderance of
the evidence that it acquired rights in these marks prior to February 20, 2007.
On summary judgment, Petitioner asserted priority with respect to all of its
pleaded marks on the basis that its “first use date (and trademark application filing
dates) precede [Respondent’s] alleged first use date (and trademark application
filing date).”28 Petitioner also submitted the declaration of its principal, Mr.
Wallack, who averred:
5. Mango’s displays the MANGO'S Marks29 prominently on all business signage,
menus, clothing items, pre-packaged food products, music and other
memorabilia products, a practice Mango's has followed since commencing
operation of MANGO'S TROPICAL CAFE in 1991.

Respondent challenged Petitioner’s priority on summary judgment by arguing
that “[t]he priority at issue is when the Petitioner began use of each of its Marks,

28 29 TTABVUE 12.
29 “MANGO’S Marks” was defined in Mr. Wallack’s declaration as all of the registered
marks that the parties stipulated that Petitioner was the owner of, including Registrations
Nos. 4190731 (MANGO’S) and 4224643 (MANGO’S TROPICAL CAFE).
Cancellation No. 92055269
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not when it opened its establishment.” (bold in original).30 Respondent reiterated
this argument in its ACR brief, with emphasis on the MANGO’S registration (No.
4190731), noting that Petitioner “offers no evidence of the dates of its first use of the
MANGO’S mark for restaurant, bar or nightclub services.”31 Respondent, citing to
the Board’s decision in Calypso Tech., Inc. v. Calypso Capital Mgmt., LP, 100
USPQ2d 1213 (TTAB 2011), argues that Mr. Wallack’s statements in his
declaration are “at best … similar to those by the plaintiff in Calypso, [and] are
directed only to when the Petitioner commenced operations and its continuing
operation of its establishment.”32
In its ACR reply brief, Petitioner reiterates its reliance on the “unrebutted,
sworn testimony of Mr. Wallack … that proves commencement of the services in
question under the MANGO’S Marks.”33 Petitioner, again, placed emphasis on
paragraph 5 of the Wallack declaration, and argues that the Calypso proceeding is
“factually inapposite to the record evidence here.”34
In proving priority, the oral testimony of a single witness may be conclusive so
long as it is not tainted by contradiction, inconsistency or indefiniteness, but rather
carries a conviction of accuracy and applicability. B.R. Baker Co. v. Lebow Bros., 150

30 33 TTABVUE 3.
31 43 TTABVUE 8.
32 Id.
33 45 TTABVUE 3.
34 Id.
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F.2d 580, 66 USPQ 232 (CCPA 1945). Oral testimony may be buttressed by
documentary evidence corroborating the dates of use. Elder Manufacturing Co. v.
International Shoe Co., 194 F.2d 114, 92 USPQ 330 (CCPA 1952). Finally, when
considering evidence of first use, we must “look at the evidence as a whole, as if
each piece of evidence were part of a puzzle which, when fitted together, establishes
prior use.” West Florida Seafood Inc. v. Jet Restaurants Inc., 31 F.3d 1122, 31
USPQ2d 1660, 1663 (Fed. Cir. 1994). In the Calypso decision, whose significance to
this proceeding the parties dispute, the Board contemplated the importance of an
interrogatory response in the context of priority. The Board ultimately found the
response was too vague, notably lacking “any information as to when plaintiff began
use” of its mark, to support any finding of an earlier date of first use. Calypso Tech.,
Inc, 100 USPQ2d at 1220. While Calypso has some bearing to our proceeding, we do
note that Mr. Wallack’s declaration contains references to Petitioner’s use of its
marks.
Nevertheless, upon review of the record, and with particular attention to the
Wallack declaration, we do not find that Petitioner has established prior rights in
the standard character MANGO’S and MANGO’S TROPICAL CAFE marks. Simply
put, the Wallack declaration not only lacks sufficient detail with respect to when
Petitioner first used these two marks in connection with restaurant and bar
services, but appears to be inconsistent with the record. Specifically, Mr. Wallack,
in his declaration, lumps these two registered word marks with the other pleaded
registered marks containing design elements and the additional words MAMBO
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BAR or TROPICAL CAFE and references all of the marks collectively as the
“MANGO’S Marks.” Mr. Wallack then avers, in addition to his statement in
paragraph 5, that Petitioner has “20 years of uninterrupted use of the MANGO’S
Marks” (paragraph 14);35 and that “[f]rom the outset of MANGO’S TROPICAL
CAFE, Mango’s has … [been] promoting its services under the MANGO’S Marks”
(paragraph 8).36 These statements leave ambiguity as to when Petitioner began use
of each of its individual pleaded marks, including the standard character MANGO’S
and MANGO’S TROPICAL CAFE marks. To the extent that Petitioner relies on the
Wallack declaration for the proposition that it began use of all of its “MANGO’S
Marks” in the same year (1991), this would contradict Petitioner’s own allegations
of first use in four of the seven pleaded registrations. For example, Registration No.
3108906 (MANGO’S MAMBO BAR stylized with design) provides “December 1,
1997” as the date Petitioner first used the mark anywhere and in commerce.
Moreover, although the Wallack declaration exhibits consist in part of website
printouts or advertisements depicting Petitioner’s use of its marks, with an
emphasis on the MANGO’S or MANGO’S TROPICAL CAFE marks without
accompanying designs, they are not dated prior to Respondent’s priority date of
February 20, 2007, nor does Mr. Wallack attest to when any of the specific
advertisements were placed.

35 42 TTABVUE 39.
36 42 TTABVUE 38.
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Because Petitioner has not established priority with respect to the two standard
character marks, MANGO’S and MANGO’S TROPICAL CAFE, it cannot rely on
these marks for purposes of its likelihood of confusion claim. Accordingly, we
continue our analysis with the pleaded marks for which Petitioner has established
priority, MANGO’S TROPICAL CAFE and MANGO’S MAMBO BAR (both marks in
stylized lettering with a parrot, and the latter also having bongo drums), and
whether there is a likelihood of confusion between either of these two marks and
Respondent’s TANGO MANGO mark.
B. Similarity of the Services and Channels of Trade
As recited in the respective recitations of services, the parties’ services include
“restaurant services” and thus the services are, at least, partially identical. We
must therefore presume that these identical restaurant services will move in the
same channels of trade and are available to the same potential classes of ordinary
consumers for restaurant services. See Citigroup Inc. v. Capital City Bank Group
Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011). See also, American
Lebanese Syrian Assoc. Charities Inc. v. Child Health Research Inst., 101 USPQ2d
1022, 1028 (TTAB 2011); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d
1905, 1908 (Fed. Cir. 2012) (finding Board entitled to rely on this presumption). The
second and third du Pont factors thus strongly support a finding of likely confusion.
C. Similarity of the Marks
We now consider the similarity or dissimilarity of the marks at issue in terms of
appearance, sound, meaning, and overall commercial impression. Palm Bay Imports
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Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1692 (Fed. Cir. 2005). We keep in mind that in circumstances where
the parties use their marks in connection with services that are legally identical, as
we have present here, the similarity between the marks necessary to support a
determination that confusion is likely declines. See Bridgestone Americas Tire
Operations LLC v. Federal Corp., 673 F.3d 1330, 102 USPQ2d 1061, 1064 (Fed. Cir.
2012).
Again, Respondent’s mark is TANGO MANGO, in standard characters, and it
has not been demonstrated that either word has any significance with respect to
restaurant services. While “mango” is a fruit and thus may be suggestive of a menu
item ingredient,37 it has not been shown to be descriptive nor has it been
disclaimed. Another significant feature of Respondent’s mark is that the initial term
“tango” rhymes with the second term, “mango.” Moreover, given the meanings of the
two terms, one a type of dance38 and the other a fruit, the combination of terms is
seemingly incongruous or appears to be nothing more than a combination creating a
playful rhyme. We do not find that one term is dominant over the other in
Respondent’s mark; however, the fact that “Tango” appears first may make it more

37 The Board takes judicial notice that “Mango” is defined as “a tropical usually large ovoid
or oblong fruit with a firm yellowish-red skin, hard central stone, and juicy aromatic pulp.”
Merriam-Webster.com. 2011. http://www.merriam-webster.com (retrieved on 8 May 2011).
Univ. of Notre Dame du Lac, 213 USPQ 594, aff'd, 703 F.2d 1372 (Board may take judicial
notice of dictionary definitions.)
38 “Tango” is defined as “a Latin-American dance in which couples make long pauses in
difficult positions.” Merriam-Webster.com. 2011. http://www.merriam-webster.com
(retrieved on 8 May 2011).
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likely to be impressed in a customer’s memory. See Presto Products Inc. v. Nice-Pak
Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a
mark which is most likely to be impressed upon the mind of a purchaser and
remembered”); see also Palm Bay Imports, supra, (“Veuve” is the most prominent
part of the mark VEUVE CLICQUOT because “veuve” is the first word in the mark
and the first word to appear on the label); Century 21 Real Estate Corp. v. Century
Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon
encountering the marks, consumers must first notice the identical lead word).
As for Petitioner’s two marks with which we base our comparison, they are:
and .
In each of Petitioner’s marks, the term MANGO’S clearly plays an important
role. It appears in larger letters at the apex of each mark and is the only non-
descriptive literal term. Again, it has not been demonstrated that MANGO’S will
necessarily be understood as having any special meaning in the context of
restaurant services; however, the term is being used in a possessive manner and
thus may be understood as referencing a person. The descriptive and generic
wording, “Mambo Bar” and “Tropical Cafe,” have been disclaimed in Petitioner’s
registrations for restaurant services and, accordingly, have less significance in
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creating the marks’ commercial impressions and carry little weight in our likelihood
of confusion determination. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has
noted that the ‘descriptive component of a mark may be given little weight in
reaching a conclusion on likelihood of confusion.’”) (quoting In re Nat’l Data Corp.,
224 USPQ at 752). As to the parrot and drum design elements, it is also generally
held that with word and design composite marks, the design portions are accorded
less weight in the likelihood of confusion analysis because consumers are more
likely to rely on wording to request the goods or services. See Productos Lacteos
Tocumbo S.A. de C.V. v. Paleteria La Michoacana Inc., 98 USPQ2d 1921, 1934
(TTAB 2011); M.C.I. Foods Inc. v. Bunte, 96 USPQ2d 1544, 1551 (TTAB 2010).
However, the parrot design figures prominently in the middle of each mark and
cannot be ignored; when considering the marks’ overall commercial impressions, we
find the parrot and bongo drums help create or reinforce a tropical theme brought to
mind by the wording in Petitioner’s marks.
Although the parties’ marks are similar to the extent that they include a
variation of the term MANGO, Respondent’s mark begins with an arbitrary term,
TANGO coupled with the rhyming word MANGO. It is the word placement, rhyme
scheme and absence of a design element in Respondent’s mark that distinguishes
the marks in sight, sound and commercial impression. With particular respect to
the commercial impressions, Petitioner’s mark connotes a tropical themed
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restaurant belonging to “mango” whereas Respondent’s mark connotes a more
arbitrary and playful rhyming name.
Moreover, the degree of similarity between the marks revolves greatly around
the strength of the common element, MANGO(‘S), as well as that the overall
strength of Petitioner’s marks. We discuss these two factors in the following
sections.
D. Number and Nature of Similar Marks in Use for Similar Services
Respondent focuses much of its evidence and arguments on the sixth du Pont
factor, the number and nature of similar marks in use on similar goods or services.
Respondent contends that the term MANGO is widely used and therefore weak for
restaurants, relying on evidence of third-party trademark registrations and
websites, including online phone listings. Relying on the third-party websites and
online phone listings, Respondent asserts there “at least 155 different restaurants
[who] use the term MANGO or its variant in their names.”39 Respondent notably
omitted the following in arriving at this number: multiple listings for the same
name in multiple states, third-party websites and online listings that were
presumably for the same establishment, or listings for establishments that
Petitioner has brought an action against.
Petitioner objects to Respondent’s evidence as “inadmissible hearsay” or that, “at
most, [the evidence] is admissible only to prove that web site existed at a point in

39 43 TTABVUE 18 (bold in original omitted).
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time, and does not prove the truth of any matter asserted therein, including actual
usage of any mark.”40 Petitioner essentially concludes that the record does not
include “credible, admissible evidence of substantial or meaningful third party use
of” marks with the term MANGO or a variation thereof.”41
With respect to the third-party registrations, Petitioner is correct and the Board
has long held that they have limited probative value and are not evidence that the
registered marks have been actually used in commerce or that consumers have even
been exposed to these marks. See, e.g., Olde Tyme Foods Inc. v. Roundy’s Inc., 961
F.2d 200, 22 USPQ2d 1542, 1545 (Fed. Cir. 1992) (“As to strength of a mark,
however, registration evidence may not be given any weight.”); Weider Publ’ns, LLC
v. D&D Beauty Care Co., 109 USPQ2d 1347, 1351 n.10 (TTAB 2014) (“As we have
often stated, because third-party registrations of marks are not evidence that the
registered marks are in use, they are of limited probative value for demonstrating
weakness of the marks.”). As a result, the third-party registrations, by themselves,
offer little to no insight into whether consumers may be accustomed to restaurants
with the term “Mango” (or a variation thereof) in the name.
However, listings from the online yellow pages website for numerous different
restaurants with the term “Mango” (or a variation) in the name have probative
value because they, at least, “carry a presumption that the name … is being used by

40 42 TTABVUE 8.
41 Id.
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third parties in connection with their … services.” Anthony’s Pizza & Pasta Int’l Inc.
v. Anthony’s Pizza Holding Co., 95 USPQ2d 1271 (TTAB 2009), aff’d, 415 Fed. Appx.
222 (Fed. Cir. 2010). In Anthony’s Pizza, the Board relied on our primary reviewing
court’s decision in Lloyd's Food Products Inc. v. Eli's Inc., 987 F.2d 766, 25 USPQ2d
2027, 2029 (Fed. Cir. 1993), where the Federal Circuit stated that service mark use
“includes listing the name of the business, including the mark, in telephone
directories and placing listings and advertisements in the yellow pages.”
In Anthony’s Pizza, the record not only included online yellow pages telephone
listings for restaurants with the name “Anthony’s,” but also testimony that many of
the listed businesses contacted by telephone to verify their existence. Ultimately
and based on the entirety of the evidence, it was found that a mark comprising the
name “Anthony’s” in connection with restaurant services should be given a
restricted scope of protection because this name had been extensively adopted,
registered, and used in marks for restaurant services. Id. at 1278.
Respondent in this proceeding did not introduce testimony verifying the
existence of any of the listed restaurants with “Mango” in their name. However,
Respondent did submit evidence in the form of printouts of online restaurant
consumer reviews, printouts of third-party restaurant websites (many of which
contain photographs of the establishment) and Google search results to help
corroborate and buttress the existence of the listed restaurants and others. This
includes:
“Mango’s Taqueria and Cantina”
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Yelp website (www.yelp.com) reflects 89 consumer reviews (dating from 2012 to
2013) for a restaurant with this name located at Pier 39 in San Francisco,
California;42

“Mango Mexican Restaurant”
Yelp website (www.yelp.com) reflects 22 consumer reviews (dating from 2010 to
2013) for a restaurant with this name located in Niles, Illinois;43

“Mango Caribbean Restaurant & Bar”
Yelp website (www.yelp.com) reflects 286 consumer reviews (dating from 2006 to
2013) for restaurant with this name located in Palo Alto, California;44

“Under the Mango Tree”
Yelp website (www.yelp.com) reflects 16 consumer reviews (dating from 2011 to
2013) for a juice and smoothie bar with this name located in Miami Beach,
Florida;45

“Mango’s Noodle House”
Yelp website (www.yelp.com) reflects 137 consumer reviews (dating from 2010 to
2013) for a restaurant with this name located in North Dallas, Texas;46

“Sweet Mango Cafe”
Yelp website (www.yelp.com) reflects 142 consumer reviews (dating from 2007 to
2013) for a restaurant with this name located in Washington, D.C.;47

“Mango Mike’s”
Yelp website (www.yelp.com) reflects 92 consumer reviews (dating from 2007 to
2013) for a restaurant with this name located in Alexandria, Virginia;48

42 30 TTABVUE at pp. 251-262, excerpts of reviews provided and website printout for
restaurant (www.pier39.com) submitted (at p. 250).
43 30 TTABVUE at pp. 264-270, excerpts of reviews provided.
44 30 TTABVUE at pp. 271-287, excerpts of reviews provided. The Yelp website indicates
that this restaurant is now “closed.”
45 30 TTABVUE at pp. 337-346, excerpts of reviews provided.
46 30 TTABVUE at pp. 347-364, excerpts of reviews provided.
47 30 TTABVUE at pp. 373-388, excerpts of reviews provided.
48 30 TTABVUE at pp. 389-408, excerpts of reviews provided. We note that a TripAdvisor
printout (located at 43 TTABVUE 190) indicates this restaurant has since “Closed.”
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“Mango Mexican Restaurant”
Yelp website (www.yelp.com) reflects 140 consumer reviews (dating from 2012 to
2013) for a restaurant with this name located in Seattle, Washington.49

“Mango’s on the Bayou”
Facebook website page (www.facebook.com) reflects 390 consumer ratings for a
restaurant with this name located in Ft. Walton Beach, Florida;50 and

“Mango’s”
TripAdvisor website (www.tripadvisor.com) reflects 102 consumer reviews
(dating from 2005 to 2014) for a restaurant with this name located in Bethany
Beach, Delaware.51

We are mindful, however, that Respondent did not submit restaurant review
evidence for a great majority of the establishments listed in the online yellow pages
website printouts. Also, aside from the number of reviews identified and the dates
for these reviews, there is no evidence indicating how long the marks for these
restaurants have been in use or their level of exposure to the purchasing public. See
e.g., Coach/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1476
(TTAB 2014).
In weighing the entirety of the evidence and keeping in mind its shortcomings,
we cannot find that consumers have grown so accustomed to seeing the term
“Mango(‘s)” in association with restaurant services that Petitioner’s marks should

49 30 TTABVUE at pp. 409-422, excerpts of reviews provided.
50 43 TTABVUE at pp. 204-272, excerpts of reviews and Facebook posts provided discussing
the restaurant. A website printout for the same restaurant was submitted (43 TTABVUE
200-204). A TripAdvisor website page for the same restaurant indicates “28 reviews” (43
TTABVUE 273-286).
51 43 TTABVUE at pp. 264-270, excerpts of reviews provided.
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be accorded a very narrow scope of protection. Nonetheless, the evidence does show
that the term has been adopted, registered, and used in various marks for
restaurant services throughout the United States. And while the record before us is
not exactly on par with that in Anthony’s Pizza, there is sufficient evidence before
us to conclude that use of the term “Mango” or “Mango’s” in restaurant names is not
unusual or unique and the significance of any similarity between the involved
marks, based on their sharing this term, is lessened. Accordingly, we find that the
sixth du Pont favor weighs in Respondent’s favor.
E. Strength or Fame of Petitioner’s Marks
Fame, if it exists, plays a dominant role in the likelihood of confusion analysis.
Kenner Parker Toys Inc. v. Rose Art Indus. Inc., 963 F.2d 350, 22 USPQ2d 1453,
1456 (Fed. Cir. 1992). In the likelihood of confusion context, fame “varies along a
spectrum from very strong to very weak.” Midwestern Pet Foods Inc. v. Societe des
Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012)
(quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772,
396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005)). In view of the extreme deference
that is accorded to a famous mark in terms of the wide latitude of legal protection it
receives, and the dominant role fame plays in the likelihood of confusion analysis, it
is the duty of the party asserting that its mark is famous to clearly prove it. Leading
Jeweler Guild Inc. v. Ljow Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007). In
reviewing the evidence of fame, we are mindful that fame is not a “yes or no”
decision but usually involves placing a mark’s strength in the spectrum of very
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weak to famous. Carefirst of Maryland Inc. v. FirstHealth of the Carolinas Inc., 77
USPQ2d 1492, 1507 (TTAB 2005) (stating that “[f]ame is relative . . . not absolute”),
aff’d, 479 F.3d 825, 81 USPQ2d 1919 (Fed. Cir. 2007).
At the outset, we note the evidence submitted by Petitioner to prove fame almost
exclusively involves the MANGO’S TROPICAL CAFE (stylized with design). There
is no evidence to suggest that MANGO’S MAMBO BAR (stylized with design) has
acquired any fame.
We do find that Petitioner has established that its MANGO’S TROPICAL CAFE
(stylized with a parrot design) mark has been exposed to a wide audience for
restaurant services and the mark is likely to have acquired some renown; however,
this level of recognition falls short of justifying the heightened scope of protection
afforded truly famous marks. While Petitioner has been in business since 1991, is
listed by a single publication as No. 10 on a list of 100 top-grossing U.S. nightclubs
and bars,52 and has received some unsolicited coverage in local and national
newspapers, we cannot conclude on this record that its MANGO’S TROPICAL
CAFE (stylized with a parrot design) mark enjoys widespread recognition among
consumers. Rather, we assess this mark as being a strong mark in connection with
restaurant services.
We make the above assessment in light of the evidence of the number and
nature of similar marks that have been adopted by third-parties as well as

52 Exhibit 5, 42 TTABVUE at 246.
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Petitioner’s attempts to enforce its rights against others who attempt to use what
Petitioner regards as confusingly similar marks.
To the extent that we find the MANGO’S TROPICAL CAFE (stylized with a
parrot design) mark as a strong one, the fifth du Pont factor weighs slightly more in
Petitioner’s favor.
VII. Conclusion
On this record, we find no likelihood of confusion between either of Petitioner’s
marks, MANGO’S TROPICAL CAFE (stylized with the parrot design) or MANGO’S
MAMBO BAR (stylized with parrot and drum design) with Respondent’s TANGO
MANGO mark. Despite all three marks being used in connection with restaurant
services and Petitioner’s MANGO’S TROPICAL CAFE and design mark having
some degree of renown, the marks themselves are sufficiently different such that
consumers will distinguish the sources of the restaurant services, given that the
shared use of “Mango(‘s)” has decreased significance in view of the evidence of third-
parties who have also adopted this term in names for restaurants.
Decision: The petition to cancel is dismissed.