Popeyes Louisiana Kitchen, Inc.v.Dennis Bonica

Trademark Trial and Appeal Board

May 15, 2020

91229194 (T.T.A.B. May. 15, 2020)

This Opinion is not a
Precedent of the TTAB

Oral Hearing: May 6, 2020 Mailed: May 15, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Popeyes Louisiana Kitchen, Inc.
v.
Dennis Bonica

_____

Opposition No. 91229194
_____

Christiane S. Campbell and James J. Halligan of Duane Morris LLP for Popeyes
Louisiana Kitchen, Inc.

Kevin Keener of Keener & Associates PC for Dennis Bonica

_____

Before Kuhlke, Bergsman and Goodman,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Dennis Bonica (“Applicant”) filed an application to register the mark
(“Sweet Hot” disclaimed) for the following International
Class 30 goods:1 “Marinades; Ready-made sauces; Sauces; Sauces for barbecued meat;

1 Application Serial No. 86849771 was filed on December 15, 2015 based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b). The description of the mark states that the “mark
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Spice blends; Spice rubs; Barbecue sauce; Barbeque sauce; Chicken wing sauce; Chili
sauce; Cooking sauces; Dipping sauces; Food condiment consisting primarily of
ketchup and salsa; Grilling sauces; Hot sauce; Hot chili pepper sauce; Ready-made
sauces; Savory sauces used as condiments; Steak sauce.”
Popeyes Louisiana Kitchen, Inc. (“Opposer”) opposes registration of Applicant’s
mark on the ground of likelihood of confusion. Opposer has pleaded ownership of the
previously used and registered mark SWEET HEAT (in both typed and standard
character) for “spices and seasonings”2 in International Class 30 and for “Prepared
chicken and seafood for consumption on or off the premises” in International Class
29; “Spices and sauces” in International Class 30; and for “Restaurant and catering
services” in International Class 43.3
Applicant filed an answer admitting that Opposer is the owner of its pleaded
registrations (paragraphs 2 and 3) but otherwise expressly or effectively denying the
salient allegations in the notice of opposition. 4 TTABVUE. Applicant asserted
affirmative defenses but did not pursue or prove them at trial. Id. Applicant also filed

consists of the wording ‘SWEET HOT’ presented in a black font except for the letter ‘O’ which
is red and presented in the image of a heart.” The color(s) black and red are claimed as a
feature of the mark.
2 Registration No. 1563625, issued October 31, 1989, renewed.
Effective November 2, 2003, Trademark Rule 2.52, 37 C.F.R. § 2.52, was amended to replace
the term “typed” drawing with “standard character” drawing. A mark depicted as a typed
drawing is the legal equivalent of a standard character mark. ProMark Brands Inc. v. GFA
Brands, Inc., 114 USPQ2d 1232, 1236 n.5 (TTAB 2015) (citing Trademark Manual of
Examining Procedure § 807.03(i)).
3 Registration No. 4170198, issued July 10, 2012, Section 8 accepted and Section 15
acknowledged. Claiming a date of first use and first use in commerce of October 15, 1988 for
Class 30 goods and July 2005 for Class 29 goods and 43 services.
Opposition No. 91229194
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a counterclaim to cancel Opposer’s pleaded Registration No. 1563625 and partially
cancel Opposer’s pleaded Registration No. 4170198, but withdrew the counterclaim
during his rebuttal period. 4 TTABVUE; 26 TTABVUE.
Each party filed a trial brief and Opposer filed a reply brief.4 An oral hearing was
held at which both parties’ counsel appeared.
I. Background and Evidentiary Matters
We first turn to an evidentiary matter, and offer a bit of background on the record.
Opposer submitted as exhibits to the notice of opposition printouts from the Office’s
Trademark Status and Document Retrieval (“TSDR”) database of its two pleaded
registrations showing then-current status and title. 1 TTABVUE. Trademark Rule
2.122(d)(1), 37 C.F.R. § 2.122(d)(1). Opposer did not submit testimony or any
additional evidence during its main testimony period for the opposition. After the
close of Applicant’s combined testimony period in the opposition and counterclaim,
Opposer sought to reopen discovery, based on excusable neglect, prompting Applicant
to file a motion to dismiss under Trademark Rule 2.132(a), 37 C.F.R. § 2.132(a). The
Board, in an order dated August 18, 2018, found that Opposer failed to show
excusable neglect due to the parties’ settlement discussions and denied the motion to
reopen discovery. In reaching its decision, the Board relied upon the fact that it was
entirely within Opposer’s control to ascertain the need to extend its discovery and
testimony deadlines, as Opposer had done previously with earlier suspension and
extension requests, and that settlement discussions were an insufficient justification

4 Opposer’s extension of time to file its trial brief was granted by the Board. 29 TTABVUE.
Opposition No. 91229194
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for inaction and delay and allowing the deadlines to elapse.5 As to Applicant’s motion
to dismiss, the Board construed the motion under Trademark Rule 2.123(b), 37 C.F.R.
§ 2.132(b) in view of Opposer’s submission of TSDR printouts of its two pleaded
registrations with its notice of opposition. The Board denied Applicant’s motion to
dismiss as untimely, since it was filed after the opening of Applicant’s testimony
period. The Board then reset remaining dates beginning with Opposer’s combined
testimony and rebuttal period, as defendant in the counterclaim and as plaintiff in
the opposition.
On November 27, 2018, after the opening of Applicant’s rebuttal period as plaintiff
in the counterclaim, Applicant filed a withdrawal of his counterclaim. The Board
granted the withdrawal, and reset briefing dates.6
On February 8, 2019, Opposer filed the deposition testimony of Lisa Hudson
(“Hudson testimony”) taken on October 23, 2018 during Opposer’s combined
testimony and rebuttal period, as reset, and on February 11, 2019, Opposer filed its
trial brief and the declaration of counsel Christiane Campbell, “in support of its trial
brief,” introducing application file wrapper exhibits. 31 TTABVUE; 37 TTABVUE; 39
TTABVUE.

5 Opposer had indicated in the motion that a draft settlement was submitted to Applicant but
Applicant never responded to the offer or commented on it. In the oral hearing, Opposer
indicated that the parties had agreed to terms and that when it submitted the agreement to
Applicant it was under the belief that settlement would be finalized, although Applicant later
decided against settlement.
6 The Board denied the counterclaims without prejudice but this was later corrected by
Board order to “denied with prejudice.” 27 TTABVUE; 56 TTABVUE.
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Applicant then moved to strike the Hudson testimony and the application file
wrapper exhibits as untimely. 40 TTABVUE. The Board granted Applicant’s motion
to strike the application file wrapper exhibits, as untimely filed, but denied the
motion to strike the Hudson testimony. 43 TTABVUE. Applicant then sought
reconsideration of the Board’s decision on whether the Hudson testimony was
improper rebuttal, but the Board deferred consideration to final decision. 44
TTABVUE; 47 TTABVUE. Applicant renewed the objection that the Hudson
testimony was improper rebuttal in his trial brief. 48 TTABVUE.
In response to the objection that the Hudson testimony is improper rebuttal,
Opposer argues that the Board has “broad discretion” to consider this testimony as it
relates to both its claims, the counterclaims, and defenses in this case. Opposer also
argues that Applicant waived any objection to this testimony by failing to attend the
Hudson deposition or seek protective relief. At the oral hearing, Opposer also
explained that it believed the parties would finalize settlement in this matter, see
n.5, and that Applicant advised only after Opposer’s main testimony period closed
that it would not be settling the matter.
During its rebuttal testimony period, a plaintiff may introduce facts and witnesses
to deny, explain or discredit facts and witnesses adduced by the defendant. See Wet
Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 2007) (The proper
purpose of the rebuttal period is to submit evidence denying, or explaining or
discrediting applicant’s evidence, not to prove opposer’s case-in-chief); Visual Info.
Inst., Inc. v. Vicon Indus. Inc., 209 USPQ 179, 182-83 (TTAB 1980) (same); General
Opposition No. 91229194
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Electric Co. v. Graham Magnetics, 197 USPQ 690, 692 n.5 (TTAB 1977) (“Evidence
which should constitute part of opposer’s case in chief but which is made of record
during the rebuttal testimony period is not considered if applicant objects.”).
From a review of Ms. Hudson’s deposition, it appears that some of Ms. Hudson’s
testimony relates to Opposer’s defense of the now moot counterclaim, which
testimony need not be considered, since that claim has been dismissed with prejudice.
Cf. Great Seats, Ltd. v. Great Seats, Inc., 84 USPQ2d 1235, 1244 (TTAB 2007)
(unclean hands defense given no consideration or effect in view of express withdrawal
of Section 2(d) claim rendering the issue of priority moot). But some of this testimony,
such as testimony related to use, nature of goods, channels of trade, and advertising,
also is the type of testimony that is appropriate for introduction during Opposer’s
case-in-chief. Although Opposer mentioned in the oral hearing that its failure to take
testimony during its main testimony period was due to its belief that the parties
would settle the matter, as already stated, settlement discussions do not justify a
party’s inaction or delay in meeting a deadline.
On the basis that some of the testimony is more appropriate for its case-in-chief,
the rebuttal testimony is improper. But, even more specifically in the context of this
proceeding, Applicant did not take testimony or introduce any other evidence in
connection with Opposer’s likelihood of confusion claim. Thus, there was nothing for
Opposer to rebut.
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Opposer has also argued waiver. However, with a substantive objection such as
improper rebuttal, the Board will consider such an objection even if it were raised for
the first time in Applicant’s brief. TBMP § 707.04 (2019).
Accordingly, Applicant’s objection is sustained. The portion of Ms. Hudson’s
testimony that is directed to Opposer’s case-in-chief is stricken, and does not form
part of the record. The remainder of the testimony relates to the now moot
counterclaim and will not be considered.
II. Record
In view of the evidentiary ruling, the record for the likelihood of confusion claim
consists of the pleadings, the file of the involved application, see Trademark Rule
2.122(b), 37 C.F.R. § 2.122(b), and Opposer’s pleaded registrations obtained as
printouts from the TSDR database and submitted with the notice of opposition, see
Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1).
III. Opposer’s Burden of Proof
In an opposition, the opposer bears the burden of proving by a preponderance of
the evidence a substantive ground for refusal to register the subject trademark.
Eastman Kodak Co. v. Bell & Howell Document Mgmt. Prods. Co., 994 F.2d 1569, 26
USPQ2d 1912, 1918 (Fed. Cir. 1993) (“the challenger’s burden of proof in both
opposition and cancellation proceedings is a preponderance of the evidence”). In a
likelihood of confusion case under Trademark Act § 2(d), this burden requires an
opposer to prove that it has some prior trademark right and that applicant’s mark is
likely to cause confusion with that trademark.
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Applicant argues that Opposer’s pleaded registrations alone are insufficient to
support Opposer’s claim of likelihood of confusion and make a prima facie case.
However, a registration, by itself, may be sufficient to establish a case of likelihood
of confusion. See Hyde Park Footwear Company, Inc. v. Hampshire-Designers, Inc.,
197 USPQ 639, 641 (TTAB 1977) (“When it is apparent from the face of opposer’s
[registration] that the marks are so similar and the goods are so related that a
likelihood of confusion exists, opposer may rest upon the prima facie case made by its
registration, subject to the risk that applicant may, during its testimony period,
successfully rebut the prima facie case.”). As indicated, Applicant did not submit any
testimony or evidence in this case.
IV. Standing
Standing is a threshold issue in every inter partes case. See Empresa Cubana Del
Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014).
To establish standing in an opposition or cancellation proceeding, a plaintiff must
prove that it has a “real interest” in the proceeding and a “reasonable” basis for its
belief of damage. See Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 170
F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999).
Opposer has established its standing by attaching to its notice of opposition as
exhibits copies of information from the TSDR electronic database records of the Office
showing the then current status and title of its pleaded registrations. Trademark
Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1). See Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000).
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V. Priority
Because Opposer’s pleaded registrations are of record and Applicant withdrew its
counterclaim with prejudice, priority is not at issue with respect to the goods or
services identified in those registrations. King Candy, Inc. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974).
VI. Likelihood of confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all 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, 567 (CCPA 1973)
(“Dupont”). “‘Not all of the DuPont factors are relevant to every case, and only factors
of significance to the particular mark need be considered.”’ See Cai v. Diamond Hong,
Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty
Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)). But the thirteen
Dupont factors “‘must be considered’ when [they] are of record.” In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie
Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) (internal quotation
omitted)).
In every Section 2(d) case, two key factors are the similarity or dissimilarity of the
marks and the goods or services. 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 [or services] and differences in the marks.”).
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A. Similarity or Dissimilarity of the Goods
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). Our analysis under this factor is based on the
identifications of the goods in Applicant’s application and Opposer’s registrations. Id.;
Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161-63 (Fed. Cir. 2014).
As noted above, Applicant’s goods are “Marinades; Ready-made sauces; Sauces;
Sauces for barbecued meat; Spice blends; Spice rubs; Barbecue sauce; Barbeque
sauce; Chicken wing sauce; Chili sauce; Cooking sauces; Dipping sauces; Food
condiment consisting primarily of ketchup and salsa; Grilling sauces; Hot sauce; Hot
chili pepper sauce; Ready-made sauces; Savory sauces used as condiments; Steak
sauce.” Opposer’s goods in its Registration No. 1563625 are “spices and seasonings”
and the relevant goods in Registration No. 4170198 are “Spices and sauces.”
Opposer’s spices in both registrations are broad enough to encompass Applicant’s
spice blends and spice rubs. Opposer’s sauces in Registration No. 4170198 is identical
to Applicant’s sauces, and encompasses Applicant’s Ready-made sauces; Sauces for
barbecued meat; Barbecue and Barbeque sauce; Chicken wing sauce; Chili sauce;
Cooking sauces; Dipping sauces; Grilling sauces; Hot sauce; Hot chili pepper sauce;
Ready-made sauces; Savory sauces used as condiments; Steak sauce. Where the
description of goods in an application or registration broadly identifies the products,
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we must presume that the goods encompass all products of the type identified. See In
re Solid State Design Inc., 125 USPQ2d 1409, 1412-15 (TTAB 2018) (where the goods
in an application or registration are broadly described, they are deemed to encompass
all the goods of the nature and type described therein); Sw. Mgmt., Inc. v. Ocinomled,
Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015) (same); In re Hughes Furniture Indus.,
Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded
identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified
‘residential and commercial furniture.’”). Therefore Applicant’s goods and Opposer’s
goods are identical in part.
The second DuPont factor weighs in favor of a finding of a likelihood of confusion.
B. Channels of Trade
The third DuPont factor considers “the similarity or dissimilarity of established,
likely-to-continue trade channels.” In re Detroit Athletic Co., 128 USPQ2d at 1051
(quoting DuPont, 177 USPQ at 567).
Because the goods described in the application and Opposer’s registrations are in
part identical, we presume that the channels of trade and classes of purchasers are
the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.
2012) (identical goods are presumed to travel in same channels of trade to the same
class of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723
(CCPA 1968) (where there are legally identical goods, the channels of trade and
classes of purchasers are considered to be the same).
The third DuPont factor weighs in favor of a finding of a likelihood of confusion.
Opposition No. 91229194
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C. Similarity or Dissimilarity of the Marks
We compare the parties’ marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. See Palm Bay Imp., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005). The test, under the first DuPont factor, is not whether the marks
can be distinguished when subjected to a side-by-side comparison, but rather whether
the marks are sufficiently similar in terms of their overall commercial impression
that confusion as to the source of the goods or services offered under the respective
marks is likely to result. Coach Servs. Inc. v. Triumph Learning, LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quoting Leading Jewelers Guild, Inc. v.
LJOW Holdings, LLC, 82 USPQ2d 1901, 1905 (TTAB 2007)).
Moreover, in cases such as this, where the Applicant’s goods are identical in part
to Opposer’s goods, the degree of similarity between the marks that is required to
support a finding of likelihood of confusion is less than it would be if the goods were
not identical. Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992).
Applicant’s mark is and Opposer’s mark is SWEET
HEAT. As indicated above, Applicant has offered the description of his mark as
consisting “of the wording ‘SWEET HOT’ presented in a black font except for the
letter ‘O’ which is red and presented in the image of a heart.” Also, Applicant
disclaimed “SWEET HOT.”
Opposition No. 91229194
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Applicant argues that the marks differ in appearance and connotation due to the
additional “significant” heart design element. Applicant also argues that Opposer’s
SWEET HEAT mark has a different connotation than Applicant’s
mark which can be interpreted by consumers as
“sweetheart.” At the oral hearing, Applicant also argued that its mark could be
pronounced differently, to sound like “sweetheart.”
We consider the sound and appearance of the parties’ marks. Both marks consist
of two words and the same number of syllables and share the identical first word
SWEET. These common elements create both a visual resemblance and a phonetic
similarity. See In re Detroit Athletic Co., 128 USPQ2d at 1049 (finding “the identity
of the marks’ two initial words is particularly significant because consumers typically
notice those words first”); Palm Bay Imps., 73 USPQ2d at 1692 (“Veuve” is the most
prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in
the mark and the first word to appear on the label); Presto Prods., Inc. v. Nice-Pak
Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (first part of mark is “most likely to
be impressed upon the mind of a purchaser and remembered.”).
An additional commonality that increases the visual and phonetic similarities
between Applicant’s mark and Opposer’s marks stems from the second word in each
mark beginning with the letter “H,” and ending with the letter “T.” The second term
in Applicant’s mark, HOT, does contain a design element, but the heart design that
replaces the letter “O” is a constituent part of the clearly recognizable word HOT.
Although Applicant’s mark consists of a design as well as a literal element, it is the
Opposition No. 91229194
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word HOT that will be used by consumers to call for or refer to the goods. CBS Inc. v.
Morrow, 708 F.2d 1579, 1581-82 (Fed. Cir. 1983); In re Dakin’s Miniatures Inc., 59
UPSQ2d 1593, 1596 (TTAB 2001); In re Appetito Provisions Co., Inc., 3 USPQ2d 1553,
1554 (TTAB 1987).
While the second words in the parties’ marks differ—HOT and HEAT—, we
nonetheless find that because of the shared initial term SWEET, overall the marks
are somewhat similar in sound and appearance.
As to connotation and commercial impression, the HOT and HEAT portions of the
marks have a similar meaning and create a similar commercial impression. HEAT
means “the condition or quality of being hot” while HOT means “having or giving off
heat; having a high temperature:” When these terms are combined with the identical
term SWEET, which means “having the taste or flavor characteristic of sugar, honey,
etc.” the overall meanings and commercial impressions are similar.7
Connotation and commercial impression alone may be sufficient to find marks
confusingly similar, despite differences in sound and appearance. Procter & Gamble
Co. v. Conway, 419 F.2d 1332, 164 USPQ 301 (CCPA 1970) (MISTER STAIN
confusingly similar to MISTER CLEAN); Hancock v. American Steel & Wire Co. of

7 RANDOM HOUSE UNABRIDGED DICTIONARY, https://www.dictionary.com/browse/heat;
https://www.dictionary.com/browse/hot?s=t; https://www.dictionary.com/browse/sweet?s=t
(accessed May 13, 2020). The Board may take judicial notice of definitions from dictionaries,
including online dictionaries that exist in printed format or have regular fixed editions.
Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re
Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
Opposer indicates in its brief that the SWEET HEAT “trademark embodies the unique
Louisiana and southern flavor profile” of its goods and services. 39 TTABVUE 6.
Opposition No. 91229194
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New Jersey, 203 F.2d 737, 97 USPQ2d 330 (CCPA 1953) (TORNADO confusingly
similar to CYCLONE); In re M. Serman & Company, Inc., 223 USPQ 52 (TTAB 1984)
(CITY WOMAN confusingly similar to CITY GIRL); H. Sichel Sohne, GmbH. v. John
Gross & Co., 204 USPQ 257 (TTAB 1979) (BLUE CHAPEL confusingly similar to
BLUE NUN).
Here, the marks have similarities and some differences, and while we have not
ignored the design element of Applicant’s mark, we find that when the marks are
considered in their entireties, the similarities outweigh the differences.
Accordingly, this DuPont factor also weighs in favor of a finding that there is a
likelihood of confusion.
Applicant submits that the two registrations are miniscule evidence to support a
finding of likelihood of confusion and asserts that “[t]he fact that Opposer’s
registrations for SWEET HEAT exist is not evidence of whether, in the mind of a
consumer, confusion between Applicant’s and Opposer’s marks is likely to occur.” 48
TTABVUE 14. Applicant submits that there is no evidence in the record as to
1) the percentage of consumers who recognize Opposer’s
mark; 2) the percentage of those consumers who would be
confused or mistaken by Applicant’s mark; 3) the
percentage of those who believe that Applicant’s mark is
from Opposer; and 4) the percentage of those consumers
who purchase Applicant’s mark for those reasons. Id.
However, it is not necessary that Opposer present consumer survey evidence or
other evidence regarding consumer confusion or actual confusion to prevail on its
ground of likelihood of confusion. See Black & Decker Corp. v. Emerson Electric Co.,
84 USPQ2d 1482, 1492 (TTAB 2007) (“the fact that ‘opposer has presented no survey
Opposition No. 91229194
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evidence or any documentary evidence that would show that ultimate consumers view
such wet/dry vacuums to be the same product as or in competition with dedicated leaf
blowers,’ is of no moment”); Ava Enterprises, Inc. v. Audio Boss USA, Inc., 77 USPQ2d
1783, 1787 (TTAB 2006) (a survey is not necessary to reach a conclusion on likelihood
of confusion). See also Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 64
USPQ2d 1375, 1380 (Fed. Cir. 2002) (proof of actual confusion is not necessary to
show a likelihood of confusion, and its absence is not dispositive); Giant Food, Inc. v.
Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 396 (Fed. Cir. 1983) (same).
VII. Conclusion
In view of the similarities of the marks, the relatedness of the goods and
overlapping trade channels, we find confusion likely.

Decision: The opposition is sustained and registration to Applicant’s application
Serial No. 86849771 is refused.