PD&D Group LLC

Trademark Trial and Appeal Board

Sep 29, 2021

87661343 (T.T.A.B. Sep. 29, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: September 29, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re PD&D Group LLC
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Serial Nos. 87661336, 87661343 and 876613461
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Neal M. Cohen and James K. Sakaguchi of Vista IP Law Group LLP,
for PD&D Group LLC.
Monica L. Beggs, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
_____

Before Bergsman, Shaw and Adlin,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
I. Background
PD&D Group LLC (“Applicant”) seeks registration on the Principal Register of the
following three marks for “Churros; Ice cream,” in International Class 30:

1 Because the appeals involve similar issues and nearly identical records, the Board
consolidated the appeals by an order dated July 15, 2021. We issue a single opinion for all
three appeals.
Citations to the record are to Serial No. 87661336, unless otherwise noted, and refer to the
USPTO’s Trademark Status & Document Retrieval (“TSDR”) system’s online database, by
page number, in the downloadable .pdf format.
Serial Nos. 87661336, 87661343 and 87661346
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 THE LOOP, in standard characters2
 3
 4
The Trademark Examining Attorney refused registration of all three of
Applicant’s marks under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on
the ground of likelihood of confusion with the marks THE LOOP,5 in standard

2 Application Serial No. 87661336 (“the ’336” application or mark), filed on October 26, 2017,
under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a) based on a date of first use of
the mark anywhere of May 31 2016, and a date of first use of the mark in commerce of June
14, 2016.
3 Application Serial No. 87661343 (“the ’343” application or mark), filed on October 26, 2017,
under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a) based on a date of first use of
the mark anywhere of May 31 2016, and a date of first use of the mark in commerce of June
14, 2016. The description of the mark, as filed, states: “The mark consists of a churro in the
shape of a loop, with the words THE LOOP beneath the churro.”
4 Application Serial Nos. 87661346 (“the ’346” application or mark), filed on October 26, 2017,
based upon Applicant’s allegation of a bona fide intention to use the marks in commerce
under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). The description of the mark,
as filed, states: “The mark consists of a churro in the shape of a loop, with the word THE
beneath the churro and having horizontal lines on either side, the word LOOP beneath the
word THE and horizontal lines, and the words HANDCRAFTED CHURROS below the word
LOOP in the form of an arc, all of the above enclosed in a double-ringed circle.”
HANDCRAFTED CHURROS is disclaimed.
5 Registration No. 4282730, issued January 29, 2013. Sections 8 and 15 affidavits accepted
and acknowledged, respectively.
Serial Nos. 87661336, 87661343 and 87661346
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characters, and 6, both owned by the same registrant and
registered for “Restaurant services,” in International Class 43.
In addition, the Examining Attorney refused registration of the mark in the ’336
application under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the
ground that the mark is merely descriptive of the identified goods; and refused
registration of the marks in the ’343 and ’346 applications pursuant to Section 6(a),
15 U.S.C. § 1056(a), based on Applicant’s failure to comply with a requirement to
disclaim the term LOOP, because it is merely descriptive of Applicant’s goods within
the meaning of Trademark Act Section 2(e)(1) and thus an unregistrable component
of the mark.
When the refusals were made final, Applicant appealed. Both Applicant and the
Examining Attorney filed briefs. We affirm the refusals to register.
II. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence 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”). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).

6 Registration No. 4288893, issued February 12, 2013. Sections 8 and 15 affidavits accepted
and acknowledged, respectively. The description of the mark reads: “The mark consists of the
word ‘THE’ connected to three oval circles encircling the word ‘LOOP’ in the middle of the
circles with the letters of the word ‘LOOP’ looped around each other. The words ‘BAR +
RESTAURANT’ are centered below the word ‘LOOP’ inside the oval circles.” BAR +
RESTAURANT disclaimed.
Serial Nos. 87661336, 87661343 and 87661346
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We must consider each DuPont factor for which there is evidence and argument. See
In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019).
In any likelihood of confusion analysis, two key considerations are the similarities
between goods and services and the similarities between the marks. See 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 services] and differences
in the marks.”).
Since both of the cited marks cover the same services in class 43, for the sake of
judicial economy, we focus our analysis on cited Registration No. 4282730 for the
mark THE LOOP in standard characters. If confusion is likely between Applicant’s
marks and the mark in this registration, there is no need for us to consider the
likelihood of confusion with the other cited mark. See, e.g., In re Max Capital Grp.
Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
A. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.
We first consider the DuPont factor relating to the similarity of the marks. In
comparing the marks we must consider their appearance, sound, connotation and
commercial impression. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 1372, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018)
(quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). Accord Krim-Ko Corp.
Serial Nos. 87661336, 87661343 and 87661346
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v. Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if
the similarity in either form, spelling or sound alone is likely to cause confusion.”); In
re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988).
1. The ’336 mark
Applicant’s mark, THE LOOP, is identical to the cited mark, THE LOOP.
Accordingly, the marks are similar at least in appearance and sound. Applicant
nevertheless argues that “Applicant’s Mark will be perceived differently by
consumers.”7 That is, “consumers would recognize that the Registrant’s ‘THE LOOP’
formative marks refer to [the] North Loop neighborhood of Minneapolis”8 whereas
Applicant’s mark “would not be perceived as having any geographical significance,
but instead as being suggestive of a feature of the products being sold in connection
with the mark.”9
Applicant submitted evidence that the “North Loop is a neighborhood adjacent to
downtown Minneapolis:
The North Loop name once referred to the trolley line that
served the area. Today it defines the shape of the
neighborhood and its location adjacent to Downtown
Minneapolis. For most of its history, the North Loop was
an industrial area, and home to a large railroad yard and
numerous warehouses and factories. . . . In recent years,
revitalization of the North Loop has accelerated, with the
neighborhood becoming “the” Twin Cities neighborhood in
which to live, work, eat, shop and play.10

7 Applicant’s Br., p. 7, 4 TTABVUE 8.
8 Id.
9 Id. at 8-9, 4 TTABVUE 9-10.
10 Northloop.org, August 13, 2018 Response to Office Action, TSDR p. 22.
Serial Nos. 87661336, 87661343 and 87661346
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Applicant also submitted evidence from Registrant’s web page indicating that one
of Registrant’s three THE LOOP restaurants is located in the North Loop
neighborhood:
Our first Loop location opened in 2006. The Loop is a high-
energy full-services restaurant. We are located in the heart
of the North Loop neighborhood of Minneapolis, the vibrant
shopping district of Shops at West End, and the always
busy downtown Rochester blocks from the Mayo Clinic.
The Loop features classy, yet comfortable décor and has
become a favorite among both neighbors and visitors alike.
We offer fantastic food during lunch, dinner, happy hour,
and late night. Whether you’re looking for a great meal, or
an unbeatable social scene, you’re going to want to ‘Get in
The Loop.’11
Thus, according to Applicant, “the Cited Marks are at least geographically
suggestive of the location of such restaurants, and therefore, the Cited Marks are
afforded more narrow protection.”12
In response the Examining Attorney argues that “Applicant’s argument regarding
the geographic descriptiveness should not be considered because to do so would fail
to give the cited registered mark the validity to which it is entitled” under Section
7(b) of the Trademark Act, 15 U.S.C. §1057(b). The Examining Attorney further
argues that because “[t]he owner of a registration without specified limitations enjoys
a presumption of exclusive right to nationwide use of the registered mark under

11 August 13, 2018 Response to Office Action, TSDR p. 24.
12 Applicant’s Br., p. 2, 4 TTABVUE 3.
Serial Nos. 87661336, 87661343 and 87661346
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Trademark Act Section 7(b) . . . the geographical extent of Applicant’s and
Registrant’s activities is not relevant to a likelihood of confusion determination.”13
We agree with the Examining Attorney that because Registrant’s mark is
registered, it is presumptively valid and distinctive for the identified services.
Trademark Act Sections 7(b) and 33(a), 15 U.S.C. §§ 1057(b) and 1115(a); In re Fiesta
Palms LLC, 85 USPQ2d 1360, 1363 (TTAB 2007). Nonetheless, we may acknowledge
the weakness of a registered mark in the course of a DuPont analysis. In re Fat Boys
Water Sports LLC, 118 USPQ2d 1511, 1517-18 (TTAB 2016).
We find Applicant’s argument regarding the likely geographic connotation of the
cited mark unpersuasive. A majority of the evidence in the record contradicts
Applicant’s contention that consumers would necessarily associate Registrant’s THE
LOOP mark solely with the North Loop neighborhood in Minneapolis. The
Northloop.org web page indicates that the neighborhood is known as the “North
Loop,” not “The Loop,” as used in Registrant’s mark.14 Applicant has presented no
evidence that the North Loop neighborhood is also known as The Loop. “In
considering the similarity between the marks, we must compare Applicant’s mark
with the cited mark as shown in the registration certificate.” In re i.am.symbolic, llc,
116 USPQ2d 1406, 1412 (TTAB 2015), aff’d., 866 F.3d 1315, 123 USPQ2d 1744 (Fed.
Cir. 2017). Further, according to Registrant’s web site, two of Registrant’s three

13 Examining Attorney’s Br., 9 TTABVUE 8-9.
14 August 13 2018 Response to Office Action, TSDR pp. 22-23.
Serial Nos. 87661336, 87661343 and 87661346
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restaurants are not located in the North Loop neighborhood, thereby diminishing any
association.15
Registrant’s web site also uses the term “the loop” as part of the idiom “in the loop”
stating: “Whether you’re looking for a great meal, or an unbeatable social scene,
you’re going to want to ‘Get in The Loop.’”16
Lastly, “loop” is a common word defined as “[a] shape produced by a curve that
bends around and crosses itself”17 Accordingly, a geographical association with the
North Loop neighborhood is only one of several possible meanings or commercial
impressions for Registrant’s mark, THE LOOP.
Applicant’s mark, on the other hand, is more likely to be associated with the
common meaning of the term “loop.” The record shows that Applicant sells churros in
the shape of a loop. Applicant’s web site, theloopchurros.com, includes pictures of its
loop-shaped churros:18

15 Id. at TSDR p. 24.
16 Id.
17 Oxforddictionaries.com, February 13, 2018 Office Action, TSDR pp. 78-80.
18 December 7, 2020 Office Acton, TSDR p. 8.
Serial Nos. 87661336, 87661343 and 87661346
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Applicant’s Yelp page is even more unequivocal, stating: “We offer handcrafted loop-
shaped churros with 3 varieties: a Dipped Loop that includes a dip, a Glazed Loop
that includes a glaze and a topping and a Chilled Loop that includes soft serve ice
cream.”19
“[I]t is true that word marks identical in sound and appearance may have different
meanings and commercial impressions[.]” In re i.am.symbolic, 123 USPQ2d at 1749.
See also Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1721-22 (Fed. Cir. 2012) (finding the distinct commercial impressions
engendered by COACH as applied to educational materials and luxury leather
products outweigh the similarities in appearance and sound). However, we find that
the marks’ meanings likely overlap to some degree. Regardless of how Applicant or
Registrant promote their marks, it is indisputable that the two marks at issue are

19 Id. at TSDR pp. 35-36.
Serial Nos. 87661336, 87661343 and 87661346
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literally identical, carry at least one of the same meanings, and have the potential to
be used (at least in terms of their grammatical meaning) in exactly the same manner.
Although we acknowledge Applicant’s intentions in this regard, and the location
of one of Registrant’s restaurants, we find that the marks, when used in connection
with the goods and services, would be perceived similarly, particularly since the
common meaning of the term “loop” underlies both the historical genesis of the “North
Loop” neighborhood, and Applicant’s “loop-shaped” churros. See White Swan, 8
USPQ2d at 1536 (with related goods and marks that were similar in sight and sound,
arguable difference in connotations of marks held insufficient basis on which to find
no likelihood of confusion, because at least a significant minority would view marks
as having same connotation). Hence, the above evidence supports the conclusion that
the common meaning of the term “loop,” and possibly the idiom “in the loop,”20 are
more likely to be brought to mind by both Applicant’s and Registrant’s marks.
Even if we were to accept Applicant’s contention that THE LOOP restaurant had
gained some notoriety for being in the “North Loop” neighborhood, the Trademark
Act still “protects the registrant and senior user from adverse commercial impact due
to use of a similar mark by a newcomer.” In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1690 (Fed. Cir. 1993). Although some consumers may know that
Registrant’s restaurant is located in the North Loop neighborhood, other consumers,
including Applicant’s, may not, and this would adversely impact Registrant.

20 The idiom “in the loop” also is used humorously in a restaurant review of a different
Southern California churro shop, Churroholic, discussed below.
Serial Nos. 87661336, 87661343 and 87661346
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Accordingly, we find that the similarity in appearance and sound outweighs the
possibility that some consumers might perceive the marks to be different in meaning
or commercial impression.
The DuPont factor regarding the similarity of the marks weighs in favor of a
finding of likelihood of confusion as to the ’336 mark.
2. The ’343 and ’346 marks
Both of Applicant’s composite marks, and ,
are similar to the cited mark, THE LOOP, inasmuch as they too include the wording
THE LOOP. Moreover, THE LOOP is the only wording in both the ’343 mark and the
cited mark. Similarly, THE LOOP is the most dominant wording in the ’346 mark
because the other wording, HANDCRAFTED CHURROS, is highly descriptive, if not
generic, has been disclaimed, and is displayed in tiny print.
Applicant argues that “[i]n analyzing the similarity of the marks, it is not proper
to dissect the marks of the parties or to discard or ignore all other non-similar
elements.”21 The problem with this argument is that there are no other “non-similar
elements” in Registrant’s mark to distinguish it from Applicant’s marks. Applicant
has adopted Registrant’s mark in its entirety and merely added a stylized
representation of Applicant’s goods or other non-distinctive matter. Likelihood of

21 Applicant Br. in Ser. No. 87661346, p. 10, 4 TTABVUE 11.
Serial Nos. 87661336, 87661343 and 87661346
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confusion is not necessarily avoided between otherwise confusingly similar marks
merely by adding other distinctive matter or a term that is descriptive or suggestive
of the named goods. In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB
2009) (holding VANTAGE TITAN for MRI diagnostic apparatus, and TITAN for
medical ultrasound device, likely to cause confusion, noting that the marks are more
similar than they are different and that the addition of applicant’s “product mark,”
VANTAGE, to the registered mark would not avoid confusion).
If the dominant portion of both marks is the same, then the marks may be
confusingly similar notwithstanding peripheral differences. Stone Lion Capital
Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 1322 110 USPQ2d 1157, 1161
(Fed. Cir. 2014) (affirming Board’s finding that applicant’s mark STONE LION
CAPITAL incorporated the entirety of the registered marks LION CAPITAL and
LION, and that the noun LION was the dominant part of both parties’ marks); Max
Capital, 93 USPQ2d at 1248 (“[A]ddition of a column design to the cited mark . . . is
not sufficient to convey that [the] marks . . . identify different sources for legally
identical insurance services.”). See also In re Denisi, 225 USPQ 624, 624 (TTAB 1985)
(“[I]f the dominant portion of both marks is the same, then confusion may be likely
notwithstanding peripheral differences.”).
The fact that the term “loop” may be descriptive of the shape Applicant’s goods
does not change the overall similarity of the marks. Descriptive or disclaimed words
may play a role in creating confusion. See In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 752 (Fed. Cir. 1985) (CASH MANAGEMENT ACCOUNT and THE CASH
Serial Nos. 87661336, 87661343 and 87661346
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MANAGEMENT EXCHANGE found confusingly similar despite applicant’s
disclaimer of CASH MANAGEMENT); King Candy Co. v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974) (“Confusion is confusion. The
likelihood thereof is to be avoided, as much between ‘weak’ marks as between ‘strong’
marks, or as between a ‘weak’ and a ‘strong’ mark.”).
The wording THE LOOP in Applicant’s marks is more dominant than the design
elements in Applicant’s marks. Where, as here, a mark consists of a literal portion
and a design portion, the literal portion is usually more likely to be impressed upon
a purchaser’s memory and to be used in calling for the goods or services; therefore,
the literal portion is normally accorded greater weight in determining whether marks
are confusingly similar. See, e.g., In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1911 (Fed. Cir. 2012). See also CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198,
200 (Fed. Cir. 1983); In re Kysela Pere et Fils, Ltd., 98 USPQ2d 1261, 1267-68 (TTAB
2011).
This principle is especially applicable here, where Applicant’s design element of a
stylized churro in the shape of a loop reinforces the mark’s literal element. In re
Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1187 (TTAB 2018) (“[W]here . . . we
are comparing a mark in standard characters to a mark that includes a pictorial
representation of that term, the fact that the word + design mark includes such a
pictorial representation will be taken into account to determine likelihood of
confusion in terms of the marks’ overall connotation and commercial impression.”).
Serial Nos. 87661336, 87661343 and 87661346
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When we consider the marks in their entireties, the identity in appearance and
sound of the dominant shared wording THE LOOP, as well as the likely similarity in
meaning and commercial impression, outweigh any possible difference suggested by
the additional matter. Accordingly, as with the ’336 mark, we find the ’343 and ’346
marks to be sufficiently similar to the cited mark as to be likely to cause confusion if
applied to related goods and services.
The DuPont factor regarding the similarity of the marks weighs in favor of a
finding of likelihood of confusion as to the ’343 and ’346 marks as well.
B. The nature and similarity or dissimilarity of the goods, the established, likely-
to-continue trade channels, and the classes of purchasers.
We next consider the similarity of the respective goods and services. “[I]t is not
necessary that the [goods or services] of the parties be similar or even competitive to
support a finding of likelihood of confusion” in order to find that they are related for
purposes of our likelihood of confusion analysis. Coach Services, 101 USPQ2d at 1722
(quoting 7-Eleven v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). The issue is not
whether consumers would confuse the goods and services themselves, but rather
whether they would be confused as to the source of the goods and services. See In re
RiseSmart Inc., 104 USPQ2d 1931, 1934 (TTAB 2012); In re Rexel, 223 USPQ 830,
831 (TTAB 1984).
Applicant’s goods are churros and ice cream whereas Registrant’s services are
restaurant services. Although likelihood of confusion has often been found where
similar marks are used in connection with both food products and restaurant services,
there is no per se rule to this effect. See Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987
Serial Nos. 87661336, 87661343 and 87661346
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F.2d 766, 25 USPQ2d 2027, 2030 (Fed. Cir. 1993). Thus, the relatedness of such goods
and services may not be assumed and the evidence of record must show “something
more” than that similar or even identical marks are used for food products and for
restaurant services. In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063
(Fed. Cir. 2003) (quoting Jacobs v. Int’l Multifoods Corp., 668 F.2d 1234, 212 USPQ
641, 642 (CCPA 1982)).
The Board has found the “something more” requirement to be met in several
different instances. It has been found where the mark for restaurant services made
clear that the restaurant specialized in the identified type of food or beverage. In re
Accelerate s.a.l., 101 USPQ2d 2047, 2050-51 (TTAB 2012) (COLOMBIANO COFFEE
HOUSE for providing food and drink confusingly similar to COLOMBIAN for coffee);
In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999) (AZTECA MEXICAN
RESTAURANT for restaurant services confusingly similar to AZTECA for Mexican
food items), and In re Golden Griddle Pancake House Ltd., 17 USPQ2d 1074 (TTAB
1990) (GOLDEN GRIDDLE PANCAKE HOUSE for restaurant services confusingly
similar to GOLDEN GRIDDLE for table syrup).
It has been found where the record showed, inter alia, that registrant’s wines were
actually sold in applicant’s restaurant. In re Opus One Inc., 60 USPQ2d 1812 (TTAB
2001) (OPUS ONE for wine confusingly similar to OPUS ONE for restaurant
services).
Serial Nos. 87661336, 87661343 and 87661346
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And it has been found where the mark was “a very unique, strong mark.” In re
Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1469 (TTAB 1988) (MUCKY DUCK
for mustard confusingly similar to MUCKY DUCK for restaurant services).
Applicant argues that “Applicant’s Goods, especially churros, are a specialty item,
not commonly sold in restaurants, and even if a restaurant happened to sell churros
and ice cream, a typical consumer would not expect that churros and ice cream sold
by a shop would be from the same proprietor.”22
The Examining Attorney argues that the respective “goods and services . . .
namely, churros, ice cream, and restaurant services, are of a kind that may emanate
from a single source under a single mark.”23 Regarding the “something more”
requirement, the Examining Attorney argues that the evidence establishes that
Applicant “provides Registrant’s ‘restaurant services’ and only serves its identified
‘churros’ and ‘ice cream’ as the principal item of its restaurant, rather than selling
the goods through retail outlets.”24 In fact, the record reveals that Applicant’s “shop”
is, in essence, a restaurant.
In support of the refusal, the Examining Attorney introduced web pages from, or
reviews of, a number of restaurants, cafés, and shops to show that some restaurants
specialize in churros and ice cream. The following eight excerpts are most relevant:

22 Applicant’s Br., p. 11, 4 TTABVUE 12.
23 Examining Attorney’s Br., 9 TTABVUE 10.
24 Id. at 9 TTABVUE 11.
Serial Nos. 87661336, 87661343 and 87661346
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 The web site of the Sweet Daily Cafe (sweetdailycafe.com), stating it is a
“Southern California dessert café specializing in sweet treats like churros,
funnel cakes, shaved ice, cakes, savory items and more! . . . Besides our
fantastic desserts . . . you will also find . . . savory items like our famous
churro dog (part churro and part hot dog) or our delicious [meat-filled]
potato balls, both make a perfect lunch, dinner or snack.”25
 The web site of La Churreria (lachurrerianyc.com) a café based in New York
City specializing in churros, and offering beverages and sandwiches.26
 The web site of Sweet Churros (sweetchurros.com) a churro shop offering
“loop shape churros” that are “prepared right in front of the customers” and
served with various sauces and ice cream, as well as drinks.27
 A Guidelive.com review of Churro Alley, a churro dessert shop in
Carrollton, Texas, offering “loop-shaped” churros with various sauces and
ice cream.28
 The web site of San Diablo Artisan Churros (sandiablochurros.com) a retail
and catering churro shop in Murray, Utah offering “sweet or savory” fresh
filled churros and “churro inspired meals,” including “churro-fried bacon-

25 February 13 2018 Office Action, TSDR pp. 7-14.
26 Id. at TSDR pp. 19-21.
27 Id. at TSDR p. 70.
28 Id. at TSDR p. 71.
Serial Nos. 87661336, 87661343 and 87661346
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wrapped dogs, churro-fried chicken tenders, churro-fried baby dogs &
churro-fried cheese bites!”29
 The web site of The Churro Co. (churrocoaustin.com) a churro shop with
outdoor seating in Austin, Texas offering “Churros for breakfast, lunch and
dinner.”30
 An abc7news.com review of a Newark, California “restaurant,” Pop Churros
that, according to the review, “has mastered the loop churro with soft-serve
ice cream and an abundance of toppings.”31
 An abc7news.com review of Churroholic, a South Gate, California “churro
business.” The review, titled “Churroholic sweetly keeps customers ‘in the
loop,’” states that Churroholic “creates warm, crispy churros in the shape
of a loop.”32
In addition to the foregoing news articles and web pages, the Examining Attorney
made of record ten third-party registrations encompassing restaurant services and
churros or ice cream. As a general proposition, although use-based third-party
registrations alone are not evidence that the marks shown therein are in use or that
the public is familiar with them, they nonetheless may have probative value to the
extent they may serve to suggest that the goods and services are of a kind that
emanate from a single source. See In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-

29 December 7, 2020 Office Action, TSDR pp. 19-24.
30 Id. at TSDR pp. 25-26.
31 Id. at TSDR p. 41.
32 Id. at TSDR p. 42.
Serial Nos. 87661336, 87661343 and 87661346
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18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB
1993); Mucky Duck, 6 USPQ2d at 1470 n.6. The following nine registrations are most
relevant:33
 Registration No. 5232398 for the mark STREET CHURROS and design,
identifying both “fast-food restaurant services” and a variety of food products,
including “churros.”
 Registration No. 5141485 for the mark SWEET DAILY, identifying both
“restaurant and café services” and a variety of bakery products, including
“churros.”
 Registration No. 2885037 for the mark ZAGUAN WORLD BAKERY & CAFÉ
and design, identifying both “café and restaurant services” and a variety of food
products, including “churros.”
 Registration No. 5398205 for the mark EAT ONE THAT’S WORTH IT,
identifying both restaurant services and “ice cream.”
 Registration No. 5398409 for the mark MILK & CREAM CEREAL BAR,
identifying both “fast food restaurants featuring ice cream” and “ice cream.”
 Registration No. 5398288 for the mark HONEYSUCKLE, identifying both
“restaurant services” and “ice cream.”

33 February 13 2018 Office Action, TSDR pp. 22-50.
Serial Nos. 87661336, 87661343 and 87661346
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 Registration No. 5378596 for the mark FREEZING POINT THAI ROLLED
ICE CREAM and design, identifying both “ice cream shop services in the
nature of a restaurant” and “ice cream.”
 Registration No. 5363383 for the mark BARLOR, identifying both restaurant
services and “bakery goods and dessert items, namely, cakes, cookies, pastries,
candies, and frozen confections for retail and wholesale distribution and
consumption on or off the premises; ice cream.”
 Registration No. 5358849 for the mark POP WORKS and design, identifying
both “restaurant services” and “ice cream.”
These third party registrations show that restaurant services and churros and ice
cream may emanate from a single source under a single mark. Albert Trostel, 29
USPQ2d at 1785-86. More importantly, the restaurant web sites, including
Applicant’s, and the restaurant reviews, all establish the “something more”
requirement that is needed to show that Applicant’s churros and ice cream are related
to Registrant’s restaurant services. Specifically, a number of restaurants, often
referred to as “shops,” specialize in serving churros and ice cream in a restaurant or
café setting.
The Examining Attorney also introduced excerpts from Applicant’s own web site,
as well as third-party articles reviewing Applicant’s business, which show that
applicant operates several churro restaurants in Southern California. The following
examples are relevant:
Serial Nos. 87661336, 87661343 and 87661346
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 An LA Times review of Applicant’s THE LOOP “brick-and-mortar, churro-
focused shop” that offers churros “which are about 14 inches long and
shaped in loops”.34
 A Refinery29.com general-interest blog article reviewing Applicant’s
“sweets shop” and stating that one of Applicant offerings is a “mermaid
glazed loop churro.”35
 A Kirbiecravings.com food blog review of Applicant’s restaurant, stating
Applicant’s “[c[hurros are shaped into easy-to-hold giant loops[.]”36
 Applicant’s web site showing two different California shop locations in
Westminster and Chino Hills, and another shop, “coming soon” to
Riverside.37
 A Foodbeast.com food blog review of Applicant’s THE LOOP shop, including
an interview with Applicant’s co-founder, who describes THE LOOP as “a
churro-centric restaurant[.]”38 An image of the interior of THE LOOP,
below, shows the counter and a seating area of THE LOOP:39

34 February 13 2018 Office Action, TSDR p. 67.
35 Id. at TSDR p. 68.
36 Id. at TSDR p. 69.
37 December 7, 2020 Office Action, TSDR p. 4.
38 Id. at TSDR p. 12.
39 Id. at TSDR p. 16.
Serial Nos. 87661336, 87661343 and 87661346
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We find this case is somewhat analogous to the facts in Azteca, 50 USPQ2d 1209.
In Azteca, the applicant sought registration of its mark for use in connection with
restaurant services. The record showed that the applicant’s restaurant served
Mexican food, and also that applicant was marketing food products under the mark.
The Board found a likelihood of confusion with a similar mark used on taco shells,
tortillas, and salsa, and affirmed the refusal to register. The Board recognized that
“[t]he average consumer . . . would be likely to view Mexican food items and Mexican
restaurant services as emanating from or sponsored by the same source if such goods
and services are sold under the same or substantially similar marks.” Azteca,
50 USPQ2d at 1211.
Here, the facts are slightly different but equally compelling. Although Applicant
seeks registration of the same mark as the registrant, THE LOOP, for churros and
ice cream, we cannot ignore the fact that the record establishes that Applicant is
providing restaurant services. Similar to Azteca, where applicant sought registration
for a service but was marketing food products related to registrant’s goods, here,
Serial Nos. 87661336, 87661343 and 87661346
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Applicant is seeking registration for goods, but is providing services identical to
Registrant’s. Thus, there is an undeniable connection between the goods of the
Applicant and the services of Registrant. See Golden Griddle, 17 USPQ2d at 1074
(“There is an undeniable connection between the goods of the registrant and the
services of applicant.”). See also Roush Bakery Prods. Co., Inc. v. Ridlen et al., 190
USPQ 445 (TTAB 1976) (where applicant sought registration of a mark for restaurant
services, “[t]he likelihood of confusion or mistake is aggravated by applicants’ sales
of bread, which is precisely opposer’s product[.]”); In re Hyper Shoppes (Ohio), Inc.,
837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988) (finding a likelihood of confusion
between goods and services where applicant’s store sold registrant’s goods).
The fact that Applicant sells mainly churros and ice cream whereas Registrant
appears to be a full service restaurant does not demonstrate that confusion is
unlikely. Consumers who are familiar with Applicant’s THE LOOP churros and ice
cream sold at Applicant’s restaurant could think that Registrant’s THE LOOP
restaurant services were related, or vice versa. That is to say, the demonstrated
overlap between churro restaurants such as Applicant’s and more traditional
restaurants such as Registrant’s suggests that confusion may occur if a potential
consumer familiar with Applicant’s marks encounters Registrant’s marks, or vice
versa.
Considering the channels of trade and classes of consumers, because the goods
and services are related, and the identifications of services in the application and
registration contain no limitations, it is presumed that the goods and services
Serial Nos. 87661336, 87661343 and 87661346
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identified therein move in all channels of trade normal therefor, and that they are
available to all classes of purchasers. Stone Lion, 110 USPQ2d at 1161. See also Coach
Services, 101 USPQ2d at 1723 (absent limitation “goods [or services] are presumed to
travel in all normal channels . . . for the relevant goods [or services].”). Here, given
the foregoing evidence from third-party commercial web sites, as well as the third-
party registrations regarding restaurants that feature churros and ice cream, we find
the channels of trade and classes of purchasers for churros and ice cream to be similar
to those for restaurant services. Id.
The DuPont factors regarding the similarity of the goods and services, channels of
trade, and classes of purchasers also favor a finding of a likelihood of confusion.
C. Conclusion
The similarity of the marks for related goods and services, which move in the same
channels of trade to the same classes of customers renders confusion likely. We find
the record establishes that consumers familiar with the goods offered under
Applicant’s THE LOOP mark who encounter the services offered under Registrant’s
THE LOOP mark are likely to believe that the goods and services emanate from a
single source.
III. Mere descriptiveness
Registration of the ’336 mark, THE LOOP, has been refused in its entirety under
Section 2(e)(1) of the Trademark Act. Registration of the ’343 and ’346 marks has
been refused pursuant to Section 6(a) of the Trademark Act in the absence of a
Serial Nos. 87661336, 87661343 and 87661346
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disclaimer of LOOP, as merely descriptive under Section 2(e)(1) as well. We turn next
to these refusals.40
“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. In re
Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007) (citing
In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987)). Whether a
particular term is merely descriptive is determined in relation to the goods for which
registration is sought and the context in which the term is used, not in the abstract
or on the basis of guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215,
218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002).
The Examining Attorney argues that “‘LOOP’ merely describes a feature of
Applicant’s ‘churros,’ which are in the shape of a loop.”41 As noted above, the
Examining Attorney introduced a dictionary definition of “loop” as well as Applicant’s
and third-party uses of the term “loop” to describe loop-shaped churros. The
Examining Attorney’s evidence includes the following additional Internet excerpts
showing use of the term “loop” to describe loop-shaped churros:
 A May 3, 1979 Washington Post article reviewing the Churreria Madrid
restaurant which offers a variety of Spanish entrees. The article states that
Churreria Madrid “is at its finest on a Sunday afternoon as a place to stop

40 Inasmuch as the Examining Attorney did not issue a requirement for Applicant to disclaim
the term THE, as well as the term LOOP, in the ’343 and ’346 applications, we need not
address whether the entire phrase THE LOOP must be disclaimed in these applications.
41 Applicant’s Br., 9 TTABVUE 13.
Serial Nos. 87661336, 87661343 and 87661346
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for churros and hot chocolate. Churros are Spanish doughnuts, fried loops
of batter[.]”42
 An article from snackandbakery.com, reviewing “authentic Loop Churros”
made by a company called California Churros. The article states: “The
highly anticipated new loop-style churros from California Churros are here!
Their new premium look and shape take the churro back to its original
European style, while preserving the same delicious taste America has
come to love.”43
 A video from the general interest web site Studio5.ksl.com, titled “Copycat
Loop Churros,” and described as “Heather Smith shares how to make the
trendy loop churros.”44
We find that that the Examining Attorney’s evidence establishes that the term
LOOP is merely descriptive when used in connection with loop-shaped churros.
Indeed, the descriptions of the marks in the ’343 and ’346 applications, as filed by
Applicant, state that “[t]he mark consists of a churro in the shape of a loop[.]”45
Applicant nevertheless argues that the term LOOP is not merely descriptive
because its “churro products are not in the shape of a loop as properly defined by the
Examiner, and thus Applicant’s Mark is at most suggestive of the curved shape of its

42 February 13 2018 Office Action, TSDR p. 72, accessed via Lexis.com.
43 Id. at TSDR p. 40.
44 Id. at TSDR p. 43.
45 Ser. No. 87661343, Application of October 26, 2107, TSDR p. 1; Ser. No. 87661346,
Application of October 26, 2107, TSDR p. 1.
Serial Nos. 87661336, 87661343 and 87661346
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churros.”46 For support, Applicant points to the definition of the term “loop” as “[a]
shape produced by a curve that bends around and crosses itself”47 and the picture
below, and concludes its “churros are not in the shape of a loop because the curve does
not cross itself.”48

Applicant discounts the Examining Attorney’s internet evidence as well, arguing
that “[websites showing the term ‘LOOP’ being in use to refer to churros in the shape
of a curve that bends and crosses itself are similarly incorrect.”49 In other words,
Applicant is arguing that “loop” isn’t merely descriptive because, strictly speaking,
the ends of its churros do not cross, but rather lie alongside each other.

46 Applicant’s Br., p. 14, 4 TTABVUE 15.
47 Oxforddictionaries.com, February 13, 2018 Office Action, TSDR pp. 78-80.
48 Applicant’s Br., p. 17, 4 TTABVUE 18.
49 Id.
Serial Nos. 87661336, 87661343 and 87661346
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Applicant’s argument is unavailing. The descriptiveness of a mark is determined,
in part, in relation to the possible significance the mark would have to the average
purchaser. See In re The Chamber of Commerce of the U.S., 675 F.3d 1297,
102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (stating descriptiveness must be evaluated
“in relation to the particular goods for which registration is sought, the context in
which it is being used, and the possible significance that the term would have to the
average purchaser of the goods because of the manner of its use or intended use.”)
(citing Bayer, 82 USPQ2d at 1831).
The Examining Attorney’s evidence discussed above displays numerous instances
where customer-facing restaurant advertising and third-party restaurant reviews
refer to a churro that curves around and meets itself as a “loop” churro or a “loop-
shaped” churro. This evidence establishes that the average purchaser will recognize
“loop” as referring to the general shape of curved churros, despite the ends of the
churros merely meeting rather than fully crossing. The wording thus immediately
conveys a “characteristic” of the goods, Bayer, 82 USPQ2d at 1831, despite the fact
that it does not comport with the exact definition of a “loop.”50

50 It should be noted that other dictionary definitions of the term “loop” include more
expansive meanings. For example, dictionary.com defines a “loop”, inter alia, as “anything
shaped more or less like a loop, as a line drawn on paper, a part of a letter, a part of a path,
or a line of motion.” Https://www.dictionary.com/browse/loop. The Cambridge Dictionary
defines “loop” as “the curved shape made when something long and thin, such as a piece of
string, bends until one part of it almost touches or crosses another part of it[.]”
Https://dictionary.cambridge.org/us/dictionary/english/loop.
Serial Nos. 87661336, 87661343 and 87661346
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For the foregoing reasons, we conclude that when used on or in connection with
Applicant’s identified goods, the term LOOP, in the ’343 and ’346 marks, merely
describes a characteristic of the churros and must be disclaimed.
The only remaining consideration is whether the use of the definite article “the”
in the ’336 mark, THE LOOP, converts the descriptive word “loop” into a registrable
trademark. It does not. We have repeatedly rejected arguments that use of the
definite article “the” as a prefix in a mark is sufficient to convert a descriptive term
into a suggestive term. That is, the addition of the word “the” to a descriptive word
does not add any source-indicating significance to the term sought to be registered.
See In re The Place Inc., 76 USPQ2d 1467, 1468 (TTAB 2005) (holding THE
GREATEST BAR merely descriptive of restaurant and bar services; “the definite
article THE . . . add[s] no source-indicating significance to the mark as a whole”); In
re The Computer Store, Inc., 211 USPQ 72, 74-75 (TTAB 1981) (holding THE
COMPUTER STORE merely descriptive of, and the common descriptive name for,
computer-related services). See also In re G. D. Searle & Co., 143 USPQ 220 (TTAB
1964), aff’d, 360 F.2d 1966, 149 USPQ 619 (CCPA 1966) (holding “THE PILL” is a
common descriptive name for pharmaceutical preparations in tablet form, and thus
does not serve as an indicator of source or origin in applicant).
For the foregoing reasons, we conclude that when used on or in connection with
Applicant’s identified goods the proposed mark, THE LOOP, merely describes churros
and is unregistrable under Section 2(e)(1) of the Trademark Act.
Serial Nos. 87661336, 87661343 and 87661346
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Decision: The refusals to register Applicant’s marks under Section 2(d) of the
Trademark Act are affirmed.
The refusal to register Applicant’s ’336 mark under Section 2(e)(1) the Trademark
Act is affirmed.
The refusals to register Applicant’s ’343 and ’346 marks, based on the requirement
for a disclaimer of LOOP, made under Trademark Act Section 6(a), are affirmed