National Presto Industries, Inc.

Trademark Trial and Appeal Board

Dec 16, 2020

88238536 (T.T.A.B. Dec. 16, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: December 16, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re National Presto Industries, Inc.
_____
Serial No. 88238536
_____
Tye Biasco of Patterson Thuente Pedersen, P.A.,
for National Presto Industries, Inc.

Sagar Vengurlekar, Trademark Examining Attorney, Law Office 117,
Hellen Bryan Johnson, Managing Attorney.
_____
Before Bergsman, Lynch, and Coggins,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
I. Background and Evidentiary Matters
National Presto Industries, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark COOK CONFIDENTLY in standard characters, with a
disclaimer of COOK, for “power-operated machines for food and beverage production,
namely, electric canning machines” in International Class 7 and “electric cooking
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appliances, namely, electric pressure cookers, electric skillets, electric griddles, and
electric multi-cookers” in International Class 11.1 The Examining Attorney has
partially refused registration under Trademark Act Section 2(d), 15 U.S.C. § 1052(d),
as to the goods in International Class 11 only, based on a likelihood of confusion with
the previously registered mark on the Principal Register, COOK WITH
CONFIDENCE in standard characters, for “Pots; pans; cooking utensils, namely,
sieves, spatulas, strainers, graters, and ladles; cutting boards; dishware” in
International Class 21.2 After the Examining Attorney made a full refusal of both
classes of goods final, Applicant requested reconsideration and appealed. At that
point, the Examining Attorney withdrew the refusal as to Applicant’s Class 7 goods,
but maintained the refusal and denied the request for reconsideration as to the Class
11 goods. The appeal of the partial refusal then proceeded, with Applicant and the
Examining Attorney submitting briefs. For the reasons set forth below, we affirm the
Class 11 refusal to register.
We note that Applicant attached exhibits to its Appeal Brief,3 which is neither a
convenience, nor a courtesy. The entire record from prosecution of the application is
readily available to the Board. Because we must determine whether the attached
exhibits are properly of record, citation to an exhibit rather than to the record
requires examination of the exhibit and then an attempt to locate the same evidence

1 Application Serial No. 88238536 was filed December 21, 2018, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an alleged bona fide intent to use the mark in
commerce.
2 Registration No. 5365557 issued on December 26, 2017.
3 7 TTABVUE 17-211 (Applicant’s Brief, Exhibits).
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in the record. Life Zone Inc. v. Middleman Grp. Inc., 87 USPQ2d 1953, 1955 (TTAB
2008) (evidence attached to briefs will almost always be either untimely or
duplicative, and in either event should not be filed); see also 37 C.F.R. § 2.142(b)(3)
(“Citation to evidence in briefs should be to the documents in the electronic
application record by date, the name of the paper under which the evidence was
submitted, and the page number in the electronic record”).
Exhibit A of Applicant’s Brief, a copy of the USPTO TESS registration record for
a third-party registration of the mark COOK WITH CONFIDENCE for “edible
cooking oils,”4 was not submitted during prosecution. Trademark Rule 2.142(d)
provides that the record should be complete before an appeal is filed. 37 C.F.R.
§ 2.142(d). However, the Examining Attorney did not object to Exhibit A, treated it
as evidence of record, and addressed it on the merits. Therefore, we have considered
the exhibit.
II. Likelihood of Confusion
Our determination under Section 2(d) involves 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) (setting forth factors to be
considered, referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). The Board considers only those
DuPont factors for which there is evidence and argument. In re Guild Mortg. Co., 912
F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); see also Stratus Networks,

4 Registration No. 3889649.
Serial No. 88238536
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Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 2020 USPQ2d 10341, **3 (Fed.
Cir. 2020) (“Not all DuPont factors are relevant in each case . . . .”). Two key
considerations are the similarities between the marks and the relatedness of the
goods. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir.
2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24,
29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”).
A. Similarity of the Marks
We compare the marks “in their entireties as to appearance, sound, connotation
and commercial impression.” Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting
DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient
to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d
1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)).
We assess not whether the marks can be distinguished in a side-by-side comparison,
but rather whether their overall commercial impressions are so similar that confusion
as to the source of the goods offered under the respective marks is likely to result.
Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); see also Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012).
We compare Applicant’s mark COOK CONFIDENTLY to the cited mark COOK
WITH CONFIDENCE. We find that the marks look and sound alike. The marks share
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the same first word, COOK, and its placement at the beginning of both marks makes
it prominent. In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir.
2018) (finding “[t]he identity of the marks’ two initial words is particularly significant
because consumers typically notice those words first”).
The remainder of both marks, while not identical, also look and sound similar
because of the words CONFIDENTLY and CONFIDENCE, which are variations of
the same root word and differ only in the last few letters. The inclusion of the
preposition WITH in the registered mark, and the noun form CONFIDENCE (rather
than Applicant’s adverb CONFIDENTLY), creates some difference in appearance and
sound, but the difference is relatively minimal overall. The marks in their entireties
have a strong visual and phonetic similarity.
As to the marks’ connotations and commercial impressions, we find them to be
essentially the same. Consumers would derive the same impression from the shared
word COOK in Applicant’s mark as they would in the cited mark, and the additional
wording in each mark modifies COOK and has the same meaning. CONFIDENTLY
is defined as the adverb form of “confident,” which is “feeling or showing certainty, as
of success” and “feeling or showing confidence in oneself; self-assured.”
CONFIDENCE is defined as “a belief or conviction that an outcome will be favorable,”
“belief in the certainty of something,” and “belief in the effectiveness of one’s own
abilities or in one’s favorable acceptance by others; self confidence.”5 Thus, both

5 We take judicial notice of the entries for “confidently,” “confident” and “confidence” in the
online American Heritage Dictionary, ahdictionary.com, accessed December 15, 2020. See In
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COOK CONFIDENTLY and COOK WITH CONFIDENCE have the connotation of
cooking with a feeling of certainty or a sense of self-assuredness. Their meanings and
commercial impressions are fundamentally the same.
Applicant argues that COOK is weak, such that the shared identical term should
not weigh in favor of likely confusion. Applicant relies on its own disclaimer of COOK,
required by the Examining Attorney, and Applicant makes an unproven assertion
that there are “157 active registrations in International Class 021 using the term
‘COOK’.”6 The Examining Attorney asks the Board to disregard “this reference as it
is unsupported since applicant did not make any of those registrations a part of the
record.”7 We agree that Applicant’s statement about the registrations lacks any
evidentiary support and therefore has no probative value. “Attorney argument is no
substitute for evidence.” 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, 1284 (Fed. Cir. 2005)). Nonetheless, we acknowledge that in both the cited
registered mark and Applicant’s mark, COOK has some conceptual weakness because
the relevant goods are used for cooking.
To the extent that Applicant argues that the registered mark is weak due to the
existence of “several active registrations that use ‘CONFIDENCE’ or

re Jimmy Moore LLC, 119 USPQ2d 1764, 1767-1768 (TTAB 2016) (Board may take judicial
notice of online dictionary definitions also available in printed form).
6 6 TTABVUE 7 (Applicant’s Brief).
7 8 TTABVUE 10 (Examining Attorney’s Brief).
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‘CONFIDENTLY’ with cookware,”8 we disagree. Of the registered marks, consisting
of , (same owner),
COPPER CONFIDENCE CORE, THE CONFIDENT CUP, and CONFIDENCE IN
HAND,9 none includes both COOK along with a variation of CONFIDENT, and none
creates a connotation or commercial impression similar to the cited registered mark.
Given these differences in the marks, the relatively small quantity of evidence, and
lack of any third-party evidence of actual use of similar marks for similar goods, we
do not find Applicant’s showing sufficient to demonstrate the weakness of the cited
mark.
The only third-party registration that includes both terms is for the mark COOK
WITH CONFIDENCE, but it is not for any of the goods in the cited registration, or
even the application, but rather is for “edible cooking oils.”10 Because of the
significant difference in the goods, without some evidence of their relatedness to the
relevant goods in this case, this third-party registration has no bearing on the
weakness of the cited mark. See Omaha Steaks Int’l v. Greater Omaha Packing Co.,
908 F.3d 1315, 128 USPQ2d 1686 (Fed. Cir. 2018) (error to rely on third-party
evidence of similar marks for dissimilar goods, as Board must focus “on goods shown
to be similar”); In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed.
Cir. 2017) (disregarding third-party registrations for goods in other classes where the

8 6 TTABVUE 7 (Applicant’s Brief).
9 TSDR September 17, 2019 Response to Office Action at 3-10, 13-14.
10 6 TTABVUE 10 (Applicant’s Brief, Exhibit A, Registration No. 3889649).
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proffering party “has neither introduced evidence, nor provided adequate explanation
to support a determination that the existence of I AM marks for goods in other classes,
… support a finding that registrants’ marks are weak with respect to the goods
identified in their registrations”).
Overall, Applicant’s evidence of purported weakness “falls short of the ‘ubiquitous’
or ‘considerable’ use of the mark components present in [Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015) and Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797
F.3d 1363, 116 USPQ2d 1129 (Fed. Cir. 2015)].” In re i.am.symbolic, llc, 123 USPQ2d
at 1751; contrast Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122
USPQ2d 1030 (TTAB 2016) (weakness found based on at least 85 actual uses of
ROSE-formative marks for similar services, eight similar third-party registrations,
expert testimony and other evidence regarding the common nature of ROSE-
formative marks in the industry, and testimony by opposer that it did not vigorously
enforce its mark). We accord the cited mark a normal scope of protection.
Ultimately, in comparing the marks, we remain mindful that “marks must be
considered in light of the fallibility of memory and not on the basis of side-by-side
comparison.” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir.
2014). Inasmuch as the goods at issue include electric skillets, electric griddles,
electric multi-cookers, pots, pans, sieves, spatulas, strainers, graters, and ladles, the
average purchaser is an ordinary consumer. Given the resemblance in sound,
appearance, connotation and commercial impression when the relevant ordinary
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consumers view the marks in their entireties, we find COOK CONFIDENTLY similar
to COOK WITH CONFIDENCE. The first DuPont factor weighs in favor of likely
confusion.
B. The Relatedness of the Goods
In analyzing the second DuPont factor, we look to the identifications in the
application and cited registration. See Detroit Ath. Co., 128 USPQ2d at 1051; Stone
Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162
(Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990). “[L]ikelihood of confusion can be found ‘if the
respective goods are related in some manner and/or if the circumstances surrounding
their marketing are such that they could give rise to the mistaken belief that they
emanate from the same source.’” Coach Servs., 101 USPQ2d at 1722 (internal
citations omitted). It is sufficient for a finding of likelihood of confusion as to a
particular class if relatedness is established for any item of identified goods within
that class in the application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d
1335, 209 USPQ 986, 988 (CCPA 1981).
To show the relatedness of goods such as Applicant’s to those in the cited
registration, the Examining Attorney introduced numerous examples of third parties
that offer both types of goods under the same mark, including:
 The All-Clad website offers pots, pans, ladles, spatulas, electric grills, electric
skillets, and electric multi-cookers under the same ALL-CLAD mark.11

11 TSDR October 9, 2019 Office Action at 4-12 (all-clad.com).
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 The Bella website features electric griddles, electric multi-cookers, electric
skillets, pots, pans, ladles, and spatulas all under the BELLA mark.12
 The Cuisinart website offers graters, spatulas, and electric skillets under the
CUISINART mark.13
 Under the PRESTO mark, the Presto website features electric griddles, electric
pressure cookers, as well as pots and strainers.14
This evidence supports the relatedness of the goods in the application and cited
registration by showing that consumers are accustomed to encountering such goods
offered under the same mark. See Detroit Ath. Co., 128 USPQ2d at 1050 (crediting
relatedness evidence that third parties use the same mark for the goods and services
at issue because “[t]his evidence suggests that consumers are accustomed to seeing a
single mark associated with a source that sells both”); Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (stating
that evidence that “a single company sells the goods and services of both parties, if
presented, is relevant to a relatedness analysis”).
We find the evidence of third-party use of the same marks for goods such as
Applicant’s and goods such as Registrant’s sufficient to establish a relationship
between them. Applicant concedes that its goods and those in the cited registration
“may be commercially related,”15 but emphasizes that they are classified in different

12 Id. at 14-17 (bellahousewares.com).
13 Id. at 18-23 (cuisinart.com).
14 TSDR March 18, 2019 Office Action at 10-14 (gopresto.com).
15 6 TTABVUE 5 (Applicant’s Brief).
Serial No. 88238536
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International Classes. “The classification system was established for the convenience
of the [Patent and Trademark] Office rather than to indicate that goods in the same
class are necessarily related or that classification in different classes indicates that
they are not related.” Nat’l Football League v. Jasper All. Corp., 16 USPQ2d 1212,
1216 (TTAB 1990) (citing In re Leon Shaffer Golnick Advert., Inc., 185 USPQ 242
(TTAB 1974)); see also Detroit Ath. Co., 128 USPQ2d at 1051 (quoting Jean Patou Inc.
v. Theon Inc., 9 F.3d 971, 29 USPQ2d 1771, 1774 (Fed. Cir. 1993) (stating that
classification is for the convenience of the Office and is “wholly irrelevant to the issue
of registrability under section 1052(d), which makes no reference to classification”)).
Applicant also argues that its goods are electric products while those in the cited
registration are not. However, as noted above, the standard for relatedness is not that
the goods overlap. Rather, the marketplace evidence discussed above establishes that
these types of cooking appliances and goods are offered under the same mark by a
single source. This contributes to likely source confusion for consumers who
encounter similar marks on such goods that actually emanate from different sources.
Applicant points to the previously discussed third-party registration of COOK
WITH CONFIDENCE for edible cooking oils in arguing that if that registration can
coexist with Registrant’s, Applicant’s mark also could coexist. We find Applicant’s
argument unavailing. The third-party registration involves different goods than
Applicant’s and we lack evidence as to their relatedness or unrelatedness to the goods
in the cited registration. Regardless, the prior decisions and actions of other
trademark examining attorneys in registering other marks have little evidentiary
Serial No. 88238536
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value and are not binding upon the USPTO or the Board. See In re USA Warriors Ice
Hockey Program, Inc., 122 USPQ2d 1790, 1793 n.10 (TTAB 2017). Each case is
decided on its own facts, and each mark stands on its own merits. Id.
The second DuPont factor weighs in favor of likely confusion.
C. The Trade Channels and Classes of Consumers
Turning to the trade channels and classes of consumers, because the
identifications in the application and cited registration have no restrictions on
channels of trade, we must presume that the goods travel in all channels of trade
appropriate for such goods, which the record shows include online retailers featuring
cooking-related products. See Hewlett-Packard, 62 USPQ2d at 1005. The third-party
retail website evidence discussed above establishes that goods such as Applicant’s
and Registrant’s travel in some of the same channels of trade to the same classes of
consumers, who include members of the general public.
Thus, the third DuPont factor weighs in favor of likely confusion.
III. Conclusion
The overall similarity of the marks for related goods that move in some of the
same channels of trade to the same classes of customers renders confusion likely.
Decision: The partial refusal to register Applicant’s mark as to the goods in
International Class 11 is affirmed. The application will proceed with the goods in
International Class 7 only.