Mariann and Gerard C. Senape

Trademark Trial and Appeal Board

May 22, 2017

No. 86449065 (T.T.A.B. May. 22, 2017)

Mailed: May 22, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Senape
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Serial No. 86449065
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Richard L. Bigelow of Bigelow Patent Law,
for Mariann and Gerard C. Senape.

Florentina Blandu Trademark Examining Attorney, Law Office 117,
Hellen Bryan Johnson, Managing Attorney.
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Before Taylor, Mermelstein, and Ritchie,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
Mariann and Gerard C. Senape (“Applicant”) filed an application to register the
mark PITZA, in standard character format, on the Principal Register, for goods
ultimately identified as “Italian thin crust pizza; Italian pizza with scamutz; Italian
pizza with Romano cheese,” in International Class 30.1
The Trademark Examining Attorney refused registration of the mark under
Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the ground that

1 Application Serial No. 86449065, filed on November 9, 2014 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on dates of first use and first use in commerce on
December 31, 1933.
This Opinion Is Not A
Precedent Of The TTAB
Serial No. 86449065
2
Applicant’s mark so resembles the previously-registered mark PITZA, registered on
the Principal Register in in typed format,2 for “frozen pita bread covered with various
food toppings,” in International Class 30,3 that when used on or in connection with
Applicant’s mark, it is likely to cause confusion or mistake or to deceive.
The Examining Attorney further refused registration of the application under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that it is
merely descriptive of the identified goods.
Upon final refusal of registration, Applicant filed a timely appeal.4 The appeal is
fully briefed. We affirm both refusals.
Likelihood of Confusion
We base our determination under Section 2(d) on an analysis of all of the probative
evidence of record bearing on a 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). In
any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods or services. See Federated
Foods, Inc. v. Fort Howard Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The

2 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
A typed mark is the legal equivalent of a standard character mark. TMEP § 807.03(i) (April
2017).

3 Registration No. 2995900, issued September 13, 2005. Sections 8 and 15 affidavits accepted
and acknowledged. Renewed.
4 The Final Office Action also included a third ground for refusal regarding the definiteness
of the identification of goods. However, this refusal was withdrawn on appeal, and the
latest amendment accepted, as reflected herein.
Serial No. 86449065
3
fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks”). We
consider each of the factors as to which Applicant or the Examining Attorney
presented arguments or evidence.

The Marks
We consider and compare the appearance, sound, connotation and commercial
impression of the marks in their entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). Applicant does not dispute that the marks are identical. They are the same in
sight, sound, and commercial impression. Thus, this du Pont factor weighs heavily in
favor of finding a likelihood of confusion.
The Goods and Channels of Trade
Preliminarily, we note that when, as here, the marks are identical, the goods or
services need not be identical or even competitive in order to support a finding of
likelihood of confusion. Rather, it is enough that the goods are related in some manner
or that the circumstances surrounding their marketing are such that they would be
likely to be seen by the same persons under circumstances which could give rise,
because of the marks used or intended to be used therewith, to a mistaken belief that
they originate from or are in some way associated with the same producer. In re Opus
One Inc., 60 USPQ2d 1812, 1814 (TTAB 2001); In re Melville Corp., 18 USPQ2d 1386,
1388 (TTAB 1991).
Serial No. 86449065
4
Applicant’s identification of goods is “Italian thin crust pizza; Italian pizza with
scamutz; Italian pizza with Romano cheese,” and the identification of goods in the
cited registration is “frozen pita bread covered with various food toppings.” Based on
the identifications themselves, we find that Registrant’s identification is broad
enough to encompass the Italian-style pizzas identified in Applicant’s application.
Applicant argues that “to the typical consumer of pizza, there is a significant
difference between Registrant’s Middle Eastern pitza made on pita bread and
Appellants’ Italian pitza made with proprietary Italian pizza dough with proprietary
pizza sauce and Romano and scamutz cheeses.”5 The problem with this argument is
that registrant does not limit the “various food toppings” identified in the cited
registration. These could reasonably include tomatoes and cheese, or perhaps a
similar tomato sauce. In this regard, as the Examining Attorney points out, we must
undertake our analysis based on the wording of the application and the cited
registration. See Octocom Systems, Inc. v. Houston Computers Services 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.”) (citations
omitted).

5 4 TTABVUE 11.
Serial No. 86449065
5
With regard to the channels of trade, Applicant argues that the “Registrant’s mark
appears on products in Southern California” while Applicant’s mark “travels in
Eastern Pennsylvania, New York and New Jersey.”6 We note, however, that
Applicant is seeking a national trademark registration and that the cited registered
mark is not geographically limited. In the absence of specific geographic or other
limitations in Applicant’s application and the cited registration, we must presume
that both Applicant’s goods and Registrant’s goods will travel in all usual channels of
trade and methods of distribution throughout the United States, for goods of the type
identified. Squirtco v. Tomy Corporation, 697 F.2d 1038, 216 USPQ 937, 939 (Fed.
Cir. 1983); see also In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992) (because
there are no limitations as to channels of trade or classes of purchasers in either the
application or the cited registration, it is presumed that the services in the
registration and the application move in all channels of trade normal for those
services, and that the services are available to all classes of purchasers for the listed
services). In other words, there is nothing that prevents the Registrant’s frozen pita
bread covered with various food toppings from being sold in some of the same
channels of trade and to the same classes of ordinary consumers as Applicant’s Italian
thin crust pizza; Italian pizza with scamutz; and Italian pizza with Romano cheese,
and vice versa.
Accordingly, these du Pont factors, too, favor finding a likelihood of confusion.

6 4 TTABVUE 12.
Serial No. 86449065
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Actual Confusion
Applicant argues that there have been no instances of actual confusion despite
overlap in the marketplace. We note, however, that while the presence of confusion
may be very useful to our analysis, the lack of evidence of actual confusion carries
little weight, especially in an ex parte proceeding. In re Majestic Distilling Co, Inc.,
65 USPQ2d at 1205.
Accordingly, we find these factors to be neutral.
Conclusion
Considering all of the evidence and arguments of record as it pertains to the
du Pont factors, including those not discussed in this decision, we find the marks to
be identical in sight, sound, and commercial impression with related goods travelling
through similar channels of trade to the same classes of purchasers. Accordingly, we
find a likelihood of confusion between Applicant’s mark PITZA for “Italian thin crust
pizza; Italian pizza with scamutz; Italian pizza with Romano cheese,” and the mark
in the cited registration, PITZA, for “frozen pita bread covered with various food
toppings.”
Section 2(e)(1)
A term is merely descriptive if it immediately conveys knowledge of a quality,
feature, function, or characteristic of the goods or services with which it is used. See
In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012), citing In re Gyulay, 820 F.2d 1216, 1217, 3 USPQ2d 1009 (Fed. Cir. 1987).
Whether a term is merely descriptive is determined not in the abstract, but in relation
Serial No. 86449065
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to the goods or services for which registration is sought, the context in which it is
being used on or in connection with those goods or services, and the possible
significance that the term would have to the average purchaser of the goods or
services because of the manner of its use. That a term may have other meanings in
different contexts is not controlling. In re Bright-Crest, Ltd., 204 USPQ 591, 593
(TTAB 1979). Moreover, it is settled that “[t]he question is not whether someone
presented with only the mark could guess what the goods or services are. Rather, the
question is whether someone who knows what the goods or services are will
understand the mark to convey information about them.” In re Tower Tech Inc., 64
USPQ2d 1314, 1316-17 (TTAB 2002). See also In re Patent & Trademark Services
Inc., 49 USPQ2d 1537 (TTAB 1998); In re Home Builders Association of Greenville,
18 USPQ2d 1313 (TTAB 1990); and In re American Greetings Corp., 226 USPQ 365
(TTAB 1985).
The Examining Attorney argues that the applied-for mark PITZA is merely a
phonetic spelling of pizza, which is a feature or ingredient in Applicant’s identified
"Italian thin crust pizza; Italian pizza with scamutz; and Italian pizza with Romano
cheese.” It is well-settled that a term is merely descriptive if consumers would
perceive it as the phonetic equivalent of another term that is also merely descriptive.
See In re Hercules Fasteners, Inc., 203 F.2d 753, 97 USPQ 355 (CCPA 1953) (holding
“FASTIE” phonetic equivalent of “fast tie,” merely descriptive of tube sealing
machines); In re Carlson, 91 USPQ2d 1198 (TTAB 2009) (holding
Serial No. 86449065
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“URBANHOUZING” phonetic spelling of “urban” and “housing,” merely descriptive
of real estate services).
The Examining Attorney submitted evidence of third-party web sites that refer to
“pitza” to describe various types of pizza. One site in particular clearly discusses the
origin of the term “pitza” as including and referring to “pizza”:
Pita+pizza=Pitza; Half pizza, half pita, this quick and easy dinner is a
crowd pleaser.
Sheknows.com7
Other third party websites mention “PITZA” as referring to various forms of pizza-
type foods, including fare offered by Applicant:
When I went to college at Emory 3,000 years ago, there used to be a
spot in Emory Village called Cedar Tree that sold “pitzas.” It was
basically a piece of toasted pita bread topped with pizza-like toppings
and the surprising things was that it was really, really good.
amateurgourmet.com.8

Senape’s Pitza, Halzeton (PA) style, with pics: . . . First and foremost,
this is true ROADFOOD. You do not order this pitza and wait for it to
bake and then sit down and eat it. You get it cold (room temperature)
at the cash register of a gas station or convenience store, take it out to
your car, start driving again, and eat it while you drive. It is not a hot,
sloppy cheesy melting pizza; it is cold, moist, soft pizza.
Roadfood.com.9
Finally, the Examining Attorney also submitted an article stating that Applicant
originally began using the term “pitza” as a misspelling of “pizza,” to which it
referred. Although not admissible for the truth of the matter, this is indicative of
consumer perceptions:

77 Attached to March 8, 2015 Office Action, at 41.
8 Attached to March 8, 2015 Office Action, at 4.
9 Attached to March 8, 2015 Office Action, at 8.
Serial No. 86449065
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Charlie Senape stands tall behind a landmark: . . . Charlie told a young
boy who worked for him to make a sign to advertise the pizza. When he
made the sign, however, he spelled the word pizza wrong. “Pizza”
became “pitza,” and “pitza” became the trademark of both the restaurant
and the bakery.
Pitza.com.10
Overall it is clear that consumers would perceive the term “PITZA” as a
misspelling of its phonetic equivalent, pizza, and as referring to a feature or
ingredient of Applicant’s various pizza products. In particular, the term “PITZA,”
when viewed in relation to Applicant’s applied-for goods, conveys information about
them, namely that Applicant offers a type of pizza. Therefore, we find that the mark
is merely descriptive of the identified goods, and we affirm the refusal to register.
Decision: The refusal to register is affirmed on both grounds.

10 Attached to June 15, 2015 Office Action, at 2.