88450631 (T.T.A.B. May. 20, 2021)

Patroni, LLC

Trademark Trial and Appeal BoardMay 20, 2021

88450631 (T.T.A.B. May. 20, 2021)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: May 20, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Patroni, LLC _____ Serial No. 88450631 _____ John R. Nelson of Peterson Law Group, PLLC, for Patroni, LLC . Anna Oakes, Trademark Examining Attorney, Law Office 103, Stacy Wahlberg, Managing Attorney. _____ Before Adlin, Coggins, and Hudis, Administrative Trademark Judges. Opinion by Coggins, Administrative Trademark Judge: Patroni, LLC (“Applicant”) seeks registration on the Principal Register of the composite mark shown below for “fast casual restaurants featuring pizza and Italian cuisine,” in International Class 43.1 1 Application Serial No. 88450631 was filed on May 29, 2019, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the mark in commerce. Serial No. 88450631 - 2 - The application contains the following statements: The mark consists of a circle and a quadrilateral with rounded corners. The quadrilateral has a border along the outside edge and contains the stylized words “PATRONI” and “1∙9∙8∙4”. Underneath the word “PATRONI” on both sides of the numbers and dots are grain stalks. In the middle of the grain stalks and behind “1∙9∙8∙4” is a shaded in flag. The circle contains the stylized wording “DON PATRONI” with a dot on each end. The circle has a border along the edge with darker shading on the top half. A stylized head and shoulders design of a man dressed in a suit, rounded collar shirt, and fedora with grain stalks behind him is contained within the circle. Color is not claimed as a feature of the mark. The name(s), portrait(s), and/or signature(s) shown in the mark does not identify a particular living individual. No claim is made to the exclusive right to use DON or 1984 apart from the mark as shown. The Trademark Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to the restaurant services identified in the application, so resembles the following composite mark (with PIZZA disclaimed) for “restaurant services,” in International Class 43,2 on the Principal Register as to be likely to cause confusion, to cause mistake, or to deceive. 2 Registration No. 4562707, issued July 8, 2014. Combined Sections 8 and 15 declaration accepted and acknowledged. Serial No. 88450631 - 3 - When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. We affirm the refusal to register. I. Evidentiary Issue In its Request for Reconsideration, Applicant included a list of six registrations and duplicated this list in its brief.3 To make a third-party registration of record, a copy of the registration showing its current status and title must be submitted; a mere listing of the registrations is not sufficient to make them of record. See, e.g., In re Compania de Licores Internacionales S.A., 102 USPQ2d 1841, 1843 (TTAB 2012); In re Hoefflin, 97 USPQ2d 1174, 1177 (TTAB 2010); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1208.02 (2020); TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 710.03 (Oct. 2018). We cannot deem the Examining Attorney to have waived any objection to this material by failing to advise Applicant of the insufficiency of the listing in her denial of reconsideration, since at that point Applicant could not cure it.4 See In re Lorillard Licensing Co., 99 USPQ2d 1312, 1314-15 n.3 (TTAB 2011); In re 1st USA Realty Pros. Inc., 84 USPQ2d 1581, 1583 (TTAB 2007); cf. In re HSB Solomon Assocs. LLC, 102 USPQ2d 1269, 1273-74 (TTAB 2012) (website references in applicant’s request for 3 September 19, 2020 Request for Reconsideration TSDR 7; 6 TTABVUE 12. Citations to the briefs in the appeal record refer to the TTABVUE docket system. Citations to the prosecution file refer to the .pdf version of the TSDR system record. In re Consumer Protection Firm PLLC, 2021 USPQ2d 238, *3 n.3 (TTAB 2021). 4 Although Applicant claims that it also offered the list in its February 19, 2020 Response to Office Action, see 6 TTABVUE 12, it did not do so. Serial No. 88450631 - 4 - reconsideration not considered because, even if examining attorney had advised applicant of the insufficiency, there was no time to cure it). The Examining Attorney did not discuss the listed registrations in her denial of Applicant’s request for reconsideration or in her brief. Accordingly, these registrations have not been considered.5 II. Applicable Law Our determination of the issue of likelihood of confusion is based on an analysis of all the probative facts in evidence that are relevant to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). When analyzing these factors, the overriding concern 5 Applicant argues that the listed marks (each containing the name FRED or MIKE) demonstrate that marks with a high degree of similarity can be used with the same services without a likelihood of confusion. 6 TTABVUE 13. We would not arrive at a different result even if we had considered these registrations. They have virtually no probative value because the FRED and MIKE marks differ considerably from the marks involved in this appeal (i.e., they are not “similar” marks). See, e.g., Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (“Third party registrations are relevant to prove that some segment of the composite marks which both contesting parties use has a normally understood and well-recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.”) (quoting 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:90 (4th ed. 2015)). See also In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017) (active third-party registrations may be relevant to show that a mark or a portion of a mark is descriptive, suggestive, or so commonly used that the public will look to other elements to distinguish the source of the goods or services). Serial No. 88450631 - 5 - is not only to prevent buyer confusion as to the source of the services, but also to protect the registrant from adverse commercial impact due to use of a similar mark by a newcomer. In re Country Oven, 2019 USPQ2d 443903, *2-3 (TTAB 2019) (citing In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993)). In any likelihood of confusion analysis, varying weights may be assigned to each DuPont factor depending on the evidence presented, see Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011), and Shell Oil, 26 USPQ2d at 1688, but two key considerations are the similarities between the marks and the similarities between the services. See In re i.am.symbolic, llc, 123 USPQ2d at 1747; In re Ox Paperboard, LLC, 2020 USPQ2d 10878, *3 (TTAB 2020). Applicant’s brief addresses these two key factors, as well as trade channels, buyers to whom sales are made, and the extent of potential confusion. A. The Services, Channels of Trade, and Classes of Customers The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration,” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir 2018) (quoting DuPont, 177 USPQ at 567), while the third DuPont factor considers “the similarity or dissimilarity of established, likely-to-continue trade channels.”’ Id. at 1052 (quoting DuPont, 177 USPQ at 567). See also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-63 (Fed. Cir. 2014). Serial No. 88450631 - 6 - As indicated above, the services in the application are “fast casual restaurants featuring pizza and Italian cuisine,” and the services in the cited registration are “restaurant services.” Applicant’s argument that its restaurant focuses on sustainability while Registrant takes a traditional approach to its restaurant6 is unavailing. Our analysis of the likelihood of confusion is determined on the basis of the services as they are identified in the application and registration at issue, not on extrinsic evidence, and there are no sustainability, vegan, or other limitations in Registrant’s identification of services, which covers any and all types of restaurant services. See Octocom Sys., Inc. v. Hous. Comput. Servs. 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 [services] set forth in the application regardless of what the record may reveal as to the particular nature of a [registrant’s services], the particular channels of trade or the class of purchasers to which the sales of [services] are directed.”); Paula Payne Prods. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of likelihood of confusion must be decided on the basis of the respective descriptions of goods [or services].”). “We have no authority to read any restrictions or limitations into the registrant’s description of [services].” In re Thor Tech Inc., 90 USPQ2d 1634, 1638 (TTAB 2009). 6 6 TTABVUE 10. Serial No. 88450631 - 7 - Moreover, where services are broadly identified in an application or registration “we must presume that the services encompass all services of the type identified,” Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015). Because Registrant’s “restaurant services” are broadly identified, they necessarily encompass Applicant’s more narrowly identified “fast casual restaurants featuring pizza and Italian cuisine.” In view thereof, the services are legally identical. In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) (“restaurant services specializing in Southern-style cuisine” legally identical to “restaurant services”); Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007) (petitioner’s “restaurant services” encompass respondent’s “restaurant services featuring bagels as a main entrée”). See also, e.g., Stone Lion Capital Partners v. Lion Capital, 110 USPQ2d at 1162; In re i.am.symbolic, llc, 127 USPQ2d 1627, 1629 (TTAB 2018). Because the services are legally identical, we must presume that the channels of trade and classes of purchasers for these services are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012). Thus, we are not persuaded by Applicant’s arguments that its services are provided “to demanding and experienced restaurant [patrons] seeking alternative meal choices including a focus on sustainability,” while Registrant’s services are not.7 In re Info. Builders Inc., 2020 USPQ2d 10444, *3 (TTAB 2020) (“Because . . . Applicant’s and Registrant’s goods and services are legally identical in part, we must presume that these goods and services travel through the same channels of trade and are offered or rendered to the same or 7 6 TTABVUE 10. Serial No. 88450631 - 8 - overlapping classes of purchasers.”) (citing Viterra, 101 USPQ2d at 1908; and In re Yawata Iron & Steel Co., 403 F.2d 752 , 159 USPQ 721, 723 (CCPA 1968)). See also DeVivo v. Ortiz, 2020 USPQ2d 10153, *13 (TTAB 2020) (citing, inter alia, Hewlett- Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)). We find that the legal identity of the services, and their presumed overlapping channels of trade and consumers weigh heavily in favor of likelihood of confusion. B. Similarity or Dissimilarity of the Marks Under the first DuPont factor, we consider “the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. v. Veuve Cliquot 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.” Inn at St. John’s, 126 USPQ2d at 1746 (quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). Applicant provides a side-by-side comparison of the marks and notes their differences.8 However, when comparing Applicant’s composite word-and-design mark to Registrant’s composite word-and-design mark , the proper test regarding similarity “is not a side-by-side comparison of the marks, but 8 6 TTABVUE 13-14. Serial No. 88450631 - 9 - instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal quotation marks and citation omitted)). The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of trademark marks. St. Julian Wine Co., 2020 USPQ2d 10595 at *4. Here, because the services are “restaurant services,” the average customer is an ordinary consumer. See In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1747 (TTAB 2018), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019). These consumers may not necessarily encounter the marks in close proximity and must rely upon their recollections thereof over time. In re Mucky Duck Mustard, 6 USPQ2d 1467, 1468 (TTAB 1988). “[S]imilarity is not a binary factor but is a matter of degree.’ In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1062 (Fed. Cir. 2003)). Because the involved restaurant services are legally identical, “the degree of similarity between the marks necessary to support a determination that confusion is likely declines.” In re i.am.symbolic, llc, 127 USPQ2d at 1630 (citing Bridgestone Ams. Tire Operations, LLC v. Fed. Corp., 673 F.3d. 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Viterra, 101 USPQ2d at 1908; In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 Serial No. 88450631 - 10 - (Fed. Cir. 2010); and Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992)). The marks must be considered in their entireties, St. Julian Wine Co., 2020 USPQ2d 10595 at *4-5, but “in articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties.” Detroit Athletic Co., 128 USPQ2d at 1050 (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985)). In the case of composite word-and-design marks such as Applicant’s and Registrant’s marks in this appeal, “the words are normally accorded greater weight because they are likely to make a greater impression upon purchasers, to be remembered by them, and to be used by them to request the [services].” In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing Viterra, 101 USPQ2d at 1908). “The verbal portion of a word and design mark ‘likely will appear alone when used in text and will be spoken when requested by consumers.”’ Id. (quoting Viterra, 101 USPQ2d at 1911). This principle is borne out by Applicant’s Face Book page, where Applicant refers to itself as “Patroni” and “Patroni Pizza,” and uses the hashtags #Patroni, #PatroniUSA, and #Patroni Pizza.9 Similarly, Registrant 9 February 19, 2020 Response to Office Action TSDR 21-25. Serial No. 88450631 - 11 - refers to itself as “Patronies” and “Patronies Pizza,” and uses the hashtag #Patroniespizza.10 The literal portions of Applicant’s mark are DON PATRONI, PATRONI, and 1984. The term PATRONI is the largest, and most prominent literal element of the composite mark. PATRONI is the first word when the mark is viewed from top to bottom,11 and this element visually dominates the other portions of the mark due to its large and bold lettering within a shaded background and the repeating grain stalks which effectively underline and visually emphasize the term. We thus find that PATRONI is the dominant portion of Applicant’s mark because “it comprises the largest literal portion of the mark in terms of size, position, and emphasis,” and because it “is also the first term in the mark, further establishing its prominence.” Aquitaine Wine, 126 USPQ2d at 1184-85 (citing Palm Bay Imps., 73 USPQ2d at 1692). Indeed, Applicant agrees that the “primary word is ‘PATRONI’ (largest size).”12 Due to its dominance, PATRONI is the term most likely to indicate the origin of the services with which it is used, Viterra, 101 USPQ2d at 1908, because it will be recalled and used when ordering and recommending the identified restaurant services. See Aquitaine Wine, 126 USPQ2d at 118. 10 Id. at TSDR 28-29, 31-34. 11 Although the small-font term DON is the first word when the mark is read from left to right, the much larger PATRONI element is in every way more prominent in the mark, especially because surnames are more likely to be source-identifying than significantly more common given names or titles such as “Don.” 12 6 TTABVUE 13. Serial No. 88450631 - 12 - The literal portions of Registrant’s mark are PATRONIES PIZZA and BORN IN BROOKLYN. The PATRONIES element is the leading term in the mark, and, although PIZZA is visually the largest literal element, it has been disclaimed because it is generic or at best descriptive. Disclaimed matter that is descriptive of or generic for a party’s services is typically less significant or less dominant when comparing marks. See Detroit Athletic Co., 128 USPQ2d at 1050 (citing Dixie Rests., 41 USPQ2d at 1533-34). Moreover, given “the penchant of consumers to shorten marks,” In re Bay State Brewing Co., 117 USPQ2d 1958, 1961 (TTAB 2016) (citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 219 (CCPA 1978) (Rich, J., concurring) (“the users of language have a universal habit of shortening full names--from haste or laziness or just economy of words”)), and the descriptive nature of PIZZA, it is unlikely that consumers will rely on the PATRONIES element for purposes of distinguishing the marks. See Aquitaine Wine USA, 126 USPQ2d at 1188 (“consumers often have a propensity to shorten marks” when ordering goods or services orally); Detroit Athletic 128 USPQ2d at 1049 (“[N]on-source identifying nature of the words and the disclaimers thereof constitute rational reasons for giving those terms less weight in the analysis.”). See also 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 the likelihood of confusion.”) (quoting Nat’l Data Corp., 224 USPQ at 752); Dixie Rests. Inc., 41 USPQ2d at 1533-34. In re Code Consultants, Inc., 60 Serial No. 88450631 - 13 - USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s commercial impression”). Likewise, the BORN IN BROOKLYN element is much smaller and at the bottom of the mark, making it less significant. In re I-Coat Co., 126 USPQ2d 1730, 1736 (TTAB 2018) (finding it reasonable to infer that words at bottom of mark in significantly smaller font do not significantly contribute to distinguishing marks). We therefore find that PATRONIES is the dominant portion of Registrant’s mark due to its nature and position as “the first term in the mark,” Aquitaine Wine, 126 USPQ2d at 1184-85, and it is the term most likely to indicate the origin of the services with which it is used, Viterra, 101 USPQ2d at 1908, because it will be recalled and used when ordering and recommending the identified restaurant services. See Aquitaine Wine, 126 USPQ2d at 118. In other words, consumers are significantly more likely to say they are going to “PATRONIES” than to “PIZZA BORN IN BROOKLYN.” Citing Swiss Grill Ltd., v. Wolf Steel Ltd., 115 USPQ2d 2001, 2011 n.17 (TTAB 2015) and Weider Publ’ns, LLC v. D & D Beauty Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014), the Examining Attorney argues that “[A]pplicant’s prominent wording . . . ‘PATRONI’ appears in the singular form of [R]egistrant’s prominent wording, ‘PATRONIES,’” and such terms in their singular or plural form are essentially identical in sound, appearance, meaning, and commercial impression.13 Applicant argues that the Examining Attorney’s reliance on Swiss Grill and Weider is misplaced 13 8 TTABVUE 6. Serial No. 88450631 - 14 - because those two cases involved marks (i.e., SWISS GRILL vs. SWISS GRILLS, and SHAPES vs. SHAPE) in which one party “add[ed] nothing more than the ‘s.’”14 We agree with Applicant that the nature of the standard character marks in Swiss Grill and Weider15 differs from the nature of the composite word-and-design marks at issue in this ex parte appeal where there are different design elements and additional wording to consider. However, we agree with the Examining Attorney to the extent that the dominant element PATRONI of Applicant’s mark would be pronounced and heard in a very similar way to the PATRONIES element of Registrant’s mark when the marks are verbalized, and these elements would convey a similar meaning and commercial impression, most likely a name, in the context of the restaurant services. Applicant does not argue and has not introduced any evidence that Registrant’s mark is conceptually or commercial weak, and we do not find that it is. Given the commercial impression of Applicant’s mark and how consumers discuss restaurants, at least some of Applicant’s customers will say they are going to or ordering from “Patroni’s,” which sounds indistinguishable from and looks almost the same as the dominant PATRONIES portion of Registrant’s mark. This would certainly cause confusion. See In re Dixie Rests., 41 USPQ2d at 1534 (quoting Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 395 (Fed. Cir. 1983)) (“[R]estaurants are often recommended by word of mouth and referred to orally, [so] it is the word portion of applicant’s mark which is more likely 14 6 TTABVUE 11. 15 In Weider, in addition to the opposer’s standard character mark SHAPE, the opposer also pleaded a stylized mark of SHAPE (without any additional matter). 109 USPQ2d at 1349-50. Serial No. 88450631 - 15 - to be impressed on the consumer’s memory.”); In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987) (“[T]he propensity of persons [is] to try restaurants based on word-of-mouth recommendations.”). Applicant is of course correct that the marks must be considered in their entireties. See Jack Wolfskin, 116 USPQ2d at 1134 (Fed. Cir. 2015); Massey Junior Coll., Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 181 USPQ 272, 273-74 (CCPA 1974). We have done that, considering not only the specific differences pointed out by Applicant, including the differences in the designs, words, and syllable count, but overall we find that the marks are much more similar than dissimilar, especially because the involved restaurant services are legally identical In re i.am.symbolic, 127 USPQ2d at 1630. See also In re Appetito Provisions, 3 USPQ2d AT 1554 (Board held “if one of the marks comprises both a word and a design, then the word is normally accorded greater weight because it would be used by purchasers to request the goods or services” and “because applicant’s mark shares with registrant’s mark that element responsible for creating its overall commercial impression, the marks are confusingly similar.”). Thus, when comparing the marks overall, we find that they are more similar than dissimilar in appearance, sound, meaning, and commercial impression. The first DuPont factor therefore weighs in favor of finding a likelihood of confusion. C. Conditions of Purchase Under the fourth DuPont factor we consider the conditions under which the services are likely to be purchased, e.g., whether on impulse or after careful Serial No. 88450631 - 16 - consideration, as well as the degree, if any, of sophistication of the consumers. See DuPont, 177 USPQ at 567. Purchaser sophistication or degree of care may tend to minimize likelihood of confusion; conversely, impulse purchases of inexpensive services may tend to have the opposite effect. Palm Bay Imps., 73 USPQ2d at 1695. See also Elec. Design & Sales Inc. v. Elec. Data Sys. Corp., 954 F.2d 713, 21 USPQ2d 1388, 1392 (Fed. Cir. 1992). Applicant contends that it “provides its services to demanding and experienced restaurant purchasers seeking alternative meal choices including a focus on sustainability” and that consumers “would differentiate purchasing decisions based on the quality, atmosphere, menu and costs associated with each provider of restaurant services.”16 In support of its arguments, Applicant cites two articles describing consumer restaurant trends and how consumers make restaurant choices.17 The first article (Exhibit E), based on a “nationwide survey of more than 1,000 U.S. consumers,” states that “[w]hen deciding whether to stop in for a bite or pick up an order, the top two considerations for consumers are affordability (25%) and whether they prefer a dine-in experience or the convenience of takeout (25%).” The 16 6 TTABVUE 10. 17 February 19, 2020 Response to Office Action. Exhibit E, “Survey Finds That Dining Experience Beats Convenience When U.S. Consumers Make Restaurant Choices” (prnewswire.com) at TSDR 36-41; and Exhibit F, “Consumer Trends and Your Restaurant – What You Need to Know” (modernrestaurantmanagment.com) at TSDR 42-46. Serial No. 88450631 - 17 - article also states that “food quality and consistency are what sway consumers’ choices the most.”18 The second article (Exhibit F) indicates that the question of “[h]ow consumers decide what to eat, and where . . . to buy it from . . . [is] impacted by different motivations, trends and personal opinions.” These trends and motivations include sustainability, a range of vegetarian and vegan options, contactless payment methods, and whether a restaurant makes a diner feel valued.19 Neither article concludes that diners are careful in making their purchasing decisions, much less when purchasing pizza, which is often sold in slices or boxes to be eaten or taken on the go. Therefore, the articles are of limited probative value. In any event, the standard of care is that of the least sophisticated potential purchaser. Stone Lion, 110 USPQ2d at 1163 (cited in In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (“Board precedent requires our decision to be based on the least sophisticated potential purchasers.”)). Registrant’s unrestricted “restaurant services” must be presumed to “encompass all services of the type identified,” Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d at 1025 (TTAB 2015), including inexpensive pizza restaurants, and the least sophisticated potential purchaser may include ordinary consumers who consume fast food and frequent inexpensive restaurants. In re Opus One Inc., 60 USPQ2d 1812, 1817 (TTAB 2001). “When [services] are relatively low-priced and subject to impulse 18 Id. at TSDR 37, 38, 39. 19 Id. at TSDR 43-45. Serial No. 88450631 - 18 - buying, the risk of likelihood of confusion is increased because purchasers of such [services] are held to a lesser standard of purchasing care.” Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000). We therefore find that the fourth DuPont factor is neutral. D. The Extent of Potential Confusion (De Minimis or Substantial) Finally, Applicant argues that the twelfth DuPont factor, the extent of potential confusion, i.e., whether de minimis or substantial, is also a relevant consideration. According to Applicant, any potential confusion would be de minimis because the marks differ in meaning and commercial impression, the consumers differ, the way in which the services are actually rendered differ, and the foods sold under the restaurant services differ. We disagree. As argued by Applicant, this essentially involves the balancing of several relevant DuPont factors rather than a separate consideration. We have already found that: (1) the marks at issue are similar; (2) the respective restaurant services are legally identical; and (3) the services are provided in the same or overlapping trade channels to the same or overlapping consumers. In view thereof, the potential for confusion is significant, not de minimis. Accordingly, this DuPont factor is neutral. E. Summary We have considered all of the arguments and evidence of record and all relevant DuPont factors. We find that the marks at issue are more similar than dissimilar, and that Applicant’s and Registrant’s services are legally identical. We also find that Serial No. 88450631 - 19 - the respective restaurant services are offered in the same or overlapping trade channels to the same or overlapping diners who exercise only ordinary care. As such we conclude, on the basis of the record as a whole, that a consumer familiar with the cited mark for “restaurant services,” who encounters Applicant’s mark used in connection with “fast casual restaurants featuring pizza and Italian cuisine,” is likely to believe mistakenly that those services originate with, or are sponsored or authorized by, the owner of the cited registration. III. Decision The refusal to register Applicant’s mark is affirmed.