Quaker Coffee Company Inc.

Trademark Trial and Appeal Board

Jan 16, 2007

No. 78465668 (T.T.A.B. Jan. 16, 2007)

Mailed:
January 16, 2007
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Quaker Coffee Company Inc.
________

Serial No. 78465668
_______

Paul A. Beck of Paul A. Beck & Associates, P.C. for Quaker
Coffee Company Inc.

Dahlia George, Trademark Examining Attorney, Law Office 108
(Andrew Lawrence, Managing Attorney).
_______

Before Bucher, Grendel and Kuhlke, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant seeks registration on the Principal Register
of the mark QUAKER COFFEE (in standard character format) for
services recited in the application, as amended, as “coffee
shop services” in International Class 43.1

1 Application Serial No. 78465668 was filed on August 11, 2004
based upon applicant’s allegation of a bona fide intention to use
the mark in commerce. Applicant has disclaimed the word “Coffee”
apart from the mark as shown. The amended goods in International
Class 30, which were part of this application at the time of
filing, have been divided out into application Serial No. 78976794,
having the following identification of goods: “beverages made from
coffee base; espresso; coffee beans; and dry roasted coffee
available from a coffee shop.”
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78465668
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This case is now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to register
applicant’s mark based upon Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d). The Trademark Examining Attorney
asserts that applicant’s mark, when used in connection with
the recited services, so resembles the mark QUAKER STEAK &
LUBE (in standard character format), which is registered for
“restaurant services”2 and the mark QUAKER STEAK & WINGS (in
standard character format), also registered for “restaurant
services,”3 as to be likely to cause confusion, to cause
mistake or to deceive.
Applicant and the Trademark Examining Attorney have
fully briefed the case. We reverse the refusal to register.
The Trademark Examining Attorney argues that the word
“Quaker” is the dominant term in all of these marks inasmuch
as it is the first word in each mark, it is a term that has
not been registered by third parties on the Federal Trademark
Register in connection with restaurant services, and it is a
completely arbitrary term as applied to establishments

2 Registration No. 1130163 issued on January 29, 1980, claiming
first use anywhere and first use in commerce at least as early as
February 1974; renewed.
3 Registration No. 2083548 issued on July 29, 1997, claiming
first use anywhere and first use in commerce at least as early as
November 17, 1991; Section 8 affidavit (six-year) accepted and
Section 15 affidavit acknowledged. The term “Steak & Wings” is
disclaimed apart from the mark as shown.
Serial No. 78465668
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providing foods and beverages. Moreover, she argues that the
services herein are very closely related.
Applicant, in turn, places a great deal of emphasis on
the arguably unique connotation of registrant’s marks, when
used in conjunction with an automotive-themed restaurant as a
nostalgic take-off on QUAKER STATE motor oil and gas
stations. Applicant also contends that the Trademark
Examining Attorney has failed to give any weight to the
declarations of applicant’s consumers and its marketing
expert.
Our determination under Section 2(d) is based upon an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). In any likelihood of confusion analysis, however, two
key considerations are the similarities or differences
between the marks and the relationship of the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). See also, In re
Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed.
Cir. 1997).
Serial No. 78465668
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The Services
We turn first to the du Pont factor focusing on the
relationship of the services. As argued by the Trademark
Examining Attorney, the involved services need not be
identical or even competitive in nature in order to support a
finding of likelihood of confusion. Rather, it is sufficient
that the services are related in some manner and/or that the
circumstances surrounding their marketing are such that they
would be likely to be encountered by the same persons under
situations that would give rise, because of the marks
employed in connection therewith, to the mistaken belief that
they originate from or are in some way associated with the
same entity or provider. See Monsanto Co. v. Enviro-Chem
Corp., 199 USPQ 590, 595-596 (TTAB 1978).
On this factor, applicant argues that it is “a coffee
shop that specializes in coffee and is not a restaurant that
provides meals serving a broad range of food.” Applicant’s
appeal brief at p. 7. However, it is clear from the record
that both applicant and registrant market their services to
consumers who are seeking physical sustenance. We find it
reasonable to presume that registrant’s “restaurant services”
include, inter alia, serving coffee and baked goods.
Conversely, successful coffee shops in this country rarely
limit their activities to the sale of coffee alone, but
Serial No. 78465668
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typically also sell bakery items like scones and muffins, or
even sandwiches,4 making them alternative sources for the type
of fare offered in carry-out, fast food, delicatessen or
casual-dining restaurants. Cf. Marriott-Hot Shoppes, Inc. v.
McKee Baking Company, 159 USPQ 685, 686 (TTAB 1968) [baked
goods related to restaurant services].
Moreover, the Trademark Examining Attorney included a
sampling from the X-SEARCH database of third-party
registrations showing the same mark registered in connection
with restaurant services and coffee shop services. We have
found that these printouts have probative value to the extent
that they serve to suggest that the services listed therein,
namely restaurant services and coffee shop services, are of a
kind that may emanate from a single source. See In re
Infinity Broad. Corp., 60 USPQ2d 1214, 1217-1218 (TTAB 2001);
In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86
(TTAB 1993); and In re Mucky Duck Mustard Co., Inc., 6 USPQ2d
1467, 1470 at n.6 (TTAB 1988).
Furthermore, as noted by the Trademark Examining
Attorney, in applicant’s original application papers of

4 According to dictionary entries placed into the record by the
Trademark Examining Attorney, a “coffee shop” is defined as a
“small restaurant in which light meals are served.” The American
Heritage® Dictionary of the English Language, New College Edition
(1976); see also online version of Merriam Webster Online
Dictionary, Tenth Edition.
Serial No. 78465668
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October 11, 2004, applicant recited its services as “coffee
shop restaurant services” (emphasis supplied).
For all these reasons, we conclude that the relationship
between a “coffee shop” and “restaurant” is apparent, and
this du Pont factor favors the position of the Trademark
Examining Attorney.
Nonetheless, applicant argues that it has proffered
declarations from twenty-one consumers who buy and drink
coffee in applicant’s QUAKER COFFEE shop, and who also
frequent restaurants. Evidently applicant solicited these
form declarations primarily at the Wynnewood Train Station
from commuters to and from Philadelphia during a twelve-day
period in July 2005. Applicant submitted ten form
declarations containing the following identical wording:
2. I am a customer who buys and drinks coffee in a Quaker Coffee shop. I am also a customer of
restaurants and supermarkets.
3. I recognize that coffee shop services are distinguishable from restaurant services. Coffee shops
specialize in coffee. Restaurants provide meals, serving a broad range of food.
4. I do not believe that the source of restaurant services would be the same source as coffee services.
5. Quaker Coffee is different and distinguishable from Quaker Steak & Lube or Quaker Steak &
Wings.
6. I do not believe that the source of restaurant services under either of the names, "Quaker Steak &
Lube" or "Quaker Steak & Wings", would be the same source as coffee shop services under the
name of "Quaker Coffee".
5

5 Eleven additional examples of a second form declaration
clarify that consumers recognize differences among various third-
party QUAKER marks for a variety of different beverages:
2. I am a customer who buys and drinks coffee in a Quaker Coffee shop. I am also a customer of
restaurants and supermarkets.
3. Quaker Coffee is different and distinguishable from Quaker.
Serial No. 78465668
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From these form declarations, applicant concludes that
consumers “recognize that coffee shops specialize in coffee,
and restaurants provide meals serving a broad range of food.”
Admittedly, the Trademark Examining Attorney has not
produced a consumer survey rebutting this claim. Nor is she
required to do so, inasmuch as the question before us is not
whether consumers know the difference between a coffee shop
and a full-service restaurant. Rather, if these prospective
purchasers were to encounter these somewhat different
services under the same or similar marks, the issue is
whether it would be reasonable for them to assume,
mistakenly, that they originate from the same source. In re
A and S Corp., 194 USPQ 304 (TTAB 1977).
Accordingly, these consumer declarations do not have a
great deal of probative value on the question before us.
Applicant has not shared with us the circumstances under
which the declarations were solicited. Based on when the
declarations were taken and on their content, we suspect that
this particular, extremely narrow slice of consumer opinions

4. I do not believe that bottled water, sold under the trademark Quaker, and coffee, sold under the
trademark Quaker Coffee, would originate from the same source. Coffee and bottled water are
different.
5. I do not believe that dairy based beverages, sold under the trademark Quaker, and coffee, sold
under the trademark Quaker Coffee, would originate from the same source. Coffee and dairy
based beverages are different.
6. I do not believe that oat-based beverages, sold under the trademark Quaker, and coffee, sold
under the trademark Quaker Coffee, would originate from the same source. Coffee and oat based
beverages are different.
Serial No. 78465668
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may well have been guided as much by the prosecution of this
application as by any earlier perceptions of applicant’s
customers. The existence of a relatively small number of
people willing to sign a form declaration is simply
insufficient for us to find that the average consumer in the
Commonwealth of Pennsylvania, for example, will conclude that
the purveyor of scones and coffee would never be the same as
the provider of restaurant services. These form statements,
undoubtedly prepared by counsel, comprise legal conclusions,
and do not demonstrate factually that the source of
restaurant services would be different from the source of
coffee shop services. Clearly, there is nothing probative in
the record to show how these purchasers would have come to
these shared conclusions that seem antithetical to the
commercial patterns suggested by the many third-party
registrations on the federal register – as well as to common
sense.
As to applicant’s expert, based upon his credentials, we
find that Mr. Donald J. Sommerville qualifies as an expert
with respect to the marketing of food items. However, in
reviewing his declaration, we have not considered him to be
an expert in trademark law, and any of his opinions relating
to the ultimate question of law in this case has been given
no weight. See, e.g., Harjo v. Pro-Football Inc., 50 USPQ2d
Serial No. 78465668
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1705, 1718 (TTAB 1999); and Medtronic, Inc. v. Medical
Devices, Inc., 204 USPQ 317, 325 (TTAB 1979).
Channels of Trade and Conditions of Sale
In order to demonstrate differences in the respective
services and the conditions of their sale, applicant has
stressed repeatedly the unique way in which the Quaker Steak
& Lube chain of restaurants markets itself:
The restaurants are all tied into a motor
vehicle concept. The motor vehicle items show a
gas pump outside the
restaurant. The web
page refers to “Lube
Racing” and shows white
auto gas stations. It
implies that Quaker
Steak is using a former
Quaker State oil and
gasoline service
station. The
restaurants are intended
to look like a gas
station. In particular,
the gas station that is
being mimicked is the
old “Quaker State” Motor
Oil & Gas Station. The
gas station was white,
so is the restaurant.
The actual web site … shows the same white
lettering on a green background as the lettering on
an old can of motor oil by Quaker State Motor Oil. 6

6 Applicant’s appeal brief, pp. 8 – 9.
Serial No. 78465668
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7
Applicant also introduced into the record copies of
several trademark registrations owned by Quaker State Oil
Company for the mark QUAKER STATE registered in connection
with, inter alia, lubricating oils, and a recently expired
registration for its abandoned service stations:

for “lubricating oils and greases, fuel
and illuminating oils, road oils,
blended and straight refined gasoline
and wax-namely, paraffin refined from
paraffin crude petroleum” in
International Class 4;8 and
QUAKER STATE for “automotive service station
services” in International Class 37.9

Furthermore, applicant cites to “The Lube Story” located
on registrant’s website:
The year was 1974, the country was in the
midst of its first gas crisis and the price of

7 Registrant’s website is at www.lubewings.com, applicant’s
exhibit 1-6.
8 Registration No. 0336158 issued on June 30, 1936; third
renewal.
9 Registration No. 0976156 issued on January 1, 1974; now
expired.
Serial No. 78465668
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gasoline was skyrocketing. Speed limits were soon
to be set at 55 M.P.H. nationwide, gas stations
were closing and the call went out to develop cars
that got better mileage …, but what to do with
those old gas stations and high-powered muscle
cars?
Enter George “Jig” Warren III and Gary “Moe”
Meszaros to save the day. Well maybe not
necessarily the entire day, but certainly one old
gas station and a bunch of muscle cars, by turning
the abandoned station into the Quaker Steak & Lube,
a “Cook Your Own Steak” restaurant. They gave the
cars, which included a 1936 Chevrolet, frozen in
time on the original hydraulic grease rack, a
loving home. The concept was so successful that
Jig and Moe were able to hire a cook so their
customers no longer had to do their own cooking and
the menu was expanded to include a variety of
family friendly foods, including chicken wings.

Of course, one problem with applicant’s argument is that
there are no limitations in either applicant’s or the
registrant’s recitations as to the channels of trade, the
décor of the eating establishments or their respective
classes of customers. The Trademark Examining Attorney makes
the point that the issue of likelihood of confusion between
an applied-for mark and registered marks must be determined
on the basis of the services as they are recited in the
involved application and cited registrations, not on the
basis of whatever the extrinsic evidence may show. See In re
Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 n. 4 (Fed.
Cir. 1993); and Canadian Imperial Bank v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992); Paula Payne
Serial No. 78465668
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Products Company v. Johnson Publishing Company, 177 USPQ 76
(CCPA 1973).
Additionally, we find that items such as a cup of coffee
or an order of wings are inexpensive, often purchased on
impulse during a road trip, without a great deal of care.
Where the services in a cited registration are broadly
described and there are no limitations in the recitation of
services as to their nature, type, channels of trade or
classes of purchasers, it is presumed that the scope of the
registration encompasses all services of the nature and type
described, that the identified services move in all channels
of trade that would be normal for such services, and that the
services would be offered to all potential customers. The
Kalart Company, Inc. v. The Camera-Mart, Inc. 258 F.2d 956,
119 USPQ 139 (CCPA 1958). Accordingly, both applicant’s and
registrant’s services must be deemed to be rendered in all
channels of trade that are appropriate for such services, and
to be purchased by all classes of ordinary purchasers of
food, including steaks, wings, scones and muffins, and of
beverages, including coffee and beer. In re Melville Corp.,
18 USPQ2d 1386 (TTAB 1991) [women’s shoes are complementary
to women’s outerwear, and there are no restrictions on
registrant’s channels of trade]; and In re Elbaum, 211 USPQ
639, 640 (TTAB 1981) [“geriatric preparation” is considered
Serial No. 78465668
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to encompass “therapeutic soak for arthritic hands and
feet”]. Hence, the related du Pont factors focusing on the
channels of trade and conditions of sale also favor a finding
of likelihood of confusion.
The Marks
We turn then to the du Pont factor focused on the
similarity of the marks in their entireties. Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005).
The Trademark Examining Attorney argues that applicant’s mark
is highly similar to the registered marks, at least as to
sound, meaning and commercial impression.
As to the appearance of the respective marks, we should
note at the outset that all these marks are standard
character format drawings. Although the images from
registrant’s website show white letters on green background,
any depiction of color within or surrounding the words as
they are actually used on the Internet or exterior signage
are irrelevant for our purposes. Hence, we are comparing
applicant’s mark, QUAKER COFFEE (in standard character format),
with registrant’s marks, QUAKER STEAK & LUBE and QUAKER STEAK &
WINGS (both in standard character format). As noted by the
Trademark Examining Attorney, applicant’s and registrant’s
Serial No. 78465668
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marks begin with the word “Quaker.” The first word visually
and the first two syllables phonetically are identical.
While applicant’s mark ends with the single, generic word
“Coffee,” both of registrant’s marks end up with a pair of
words joined with an ampersand, none of which looks or sounds
like the word “coffee.” Registrant’s marks thus create
somewhat of a visual difference, as well as adding a fifth
syllable to the aural perceptions of registrant’s marks.
The Trademark Examining Attorney consistently argues
that the dominant portion of applicant’s mark and
registrant’s marks is the identical, leading word, QUAKER.
In her brief, she points out that the dominance of the term
QUAKER is reinforced by applicant’s exhibits of registrant’s
website promotions. Specifically, she contends that inasmuch
as the term QUAKER appears by itself, in larger letters and
above the words STEAK & LUBE, these ads actually undercut
applicant’s theory that the term QUAKER STEAK will
necessarily be perceived as a combined term.
In turning to the meaning or connotation of applicant’s
mark, the record shows that applicant herein set up a bakery
shop and coffee shop in a commuter train station on the Main
Line north of Philadelphia and Germantown. Applicant’s
positioning in that niche market supports the position of the
Trademark Examining Attorney, that when consumers see the
Serial No. 78465668
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mark QUAKER COFFEE, they might well create a mental
association with the Society of Friends in view of
Philadelphia’s deep Quaker roots.
Moreover, applicant’s logo shows a child
in what may well be seen as a traditional
Quaker outfit – dark pants, a long-
sleeved shirt with suspenders and a
broad-brimmed hat – riding away on his
bike with upraised hands free of the
handlebars.
However, it is on the connotation of registrant’s mark
that applicant and the Trademark Examining Attorney take
decidedly different approaches. The Trademark Examining
Attorney argues that the term QUAKER alone is the dominant
term in the registered marks. She concludes, therefore, that
“ … the entire marks in both cited registrations give the
impression of either ‘steak and wings’ or ‘steak and lube’
provided by a Quaker, i.e., a member of the Society of
Friends.” Trademark Examining Attorney’s appeal brief,
unnumbered page 7.
By contrast, applicant claims in its reply brief that
“ … registrant would likely be surprised and disappointed if
this were the impression Registrant was giving to the
consumer by its marks.” Applicant’s reply brief, p. 2.
Serial No. 78465668
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Referring again to registrant’s website, applicant argues
that registrant with its choice of QUAKER STEAK in both of
its marks is quite intentionally creating a play on words
with the mark for oil and lube, QUAKER STATE. It is no
coincidence, applicant argues, that abandoned QUAKER STATE
gas stations in western Pennsylvania, Ohio and surrounding
areas, upon being vacated, were transformed into QUAKER STEAK
& LUBE restaurants. Moreover, all of the restaurants in this
chain have been promoted with an automotive- and motorcycle-
themed atmosphere that continues to play off the nostalgia of
QUAKER STATE gas and lube stations. Applicant argues that
with this theme and unavoidable play on words, registrant
wants consumers to recall or recognize the restaurants as
being QUAKER STEAK, and not just QUAKER.
If applicant is correct, then clearly this is quite a
different connotation than that proffered by the Trademark
Examining Attorney, namely, that “consumers are likely to
recall or recommend the establishment as just ‘QUAKER’.”
Trademark Examining Attorney’s appeal brief, unnumbered p. 6.
On this critical point, we agree with applicant. It is
unmistakable that to the average consumer, the overall
commercial impression of registrant’s marks will be of
QUAKER STEAK as a play on QUAKER STATE. Hence, this two-
Serial No. 78465668
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word term (a “thing”) is the dominant portion of registrant’s
marks, and not just the initial term, “Quaker,” alone (a
“person,” “group” or “lifestyle”).
Applicant continues:
The Examining Attorney appears to be using the
“Quaker-as-the-dominant-term” argument as a way to
argue connotation of the Registrant’s marks. The
connotation the Examining Attorney is suggesting
for the Registrant’s marks is one of a Quaker
providing steak, wings and a lube. That is not the
connotation. Applicant’s position is that the
connotation of the Registrant’s marks is a
restaurant serving steaks and wings with an
automotive theme ….
If two conflicting marks each have an aura of
suggestion but each suggest something different to
the buyer, this tends to indicate a lack of
likelihood of confusion. Differences of
connotation and meaning are key factors in
determining likelihood of confusion.

Applicant also pointed out that, consistent with usage
of “The Lube Story” on registrant’s website, registrant has
obtained a separate federal trademark registration for THE
LUBE.10 Hence, at least as to the cited mark for QUAKER
STEAK & LUBE, the source identifying significance of the
arbitrary word “Lube” (for restaurant services) cannot be so
easily dismissed from the Trademark Examining Attorney’s
likelihood of confusion considerations.

10 Registration No. 2880832 issued to Quaker Steak & Lube
Franchising Corporation on September 7, 2004 for “restaurant
services and take-out restaurant services” claiming use in commerce
since at least as early as January 1988.

Serial No. 78465668
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Certainly, upon reflection, there are a number of areas
of trademark law where contextual, secondary connotations
change the results of a registrability decision.
For example, an identical term may take on very
different meanings as applied to related goods, overcoming a
likelihood of confusion. See In re British Bulldog, Ltd.,
224 USPQ 854 (TTAB 1984) [the Board held that the mark PLAYERS
on men’s underwear and men’s shoes would not result in
consumer confusion as to the source of the goods inasmuch as
“‘PLAYERS’ for shoes implies a fit, style, color and
durability adapted to outdoor activities. ‘PLAYERS’ for men’s
underwear implies something else, primarily indoors in
nature.”].
A second analogous pattern under the Lanham Act occurs
when a newly-coined combination of descriptive components
creates a readily-understood, alternative meaning. Such a
mark is known to comprise a “double entendre.” A double
entendre will not be refused registration as merely
descriptive if one of its meanings is not merely descriptive
in relation to the involved goods or services. See In re
Kraft, Inc., 218 USPQ 571, 573 (TTAB 1983) [the Board found
inappropriate a requirement for a disclaimer of the word
LIGHT apart from the mark LIGHT N’ LIVELY for reduced calorie
mayonnaise: “The mark LIGHT N’ LIVELY as a whole has a
Serial No. 78465668
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suggestive significance which is distinctly different from
the merely descriptive significance of the term LIGHT per se.
That is, the merely descriptive significance of the term
LIGHT is lost in the mark as a whole. Moreover, the
expression as a whole has an alliterative lilting cadence
which encourages persons encountering it to perceive it as a
whole.”]. See also In re Symbra'ette, Inc., 189 USPQ 448
(TTAB 1975) [SHEER ELEGANCE for panty hose held to be a
registrable unitary expression; thus, no disclaimer of SHEER
considered necessary]; In re Colonial Stores Inc., 394 F.2d
549, 157 USPQ 382 (CCPA 1968) [SUGAR & SPICE for bakery
products]; and In re National Tea Co., 144 USPQ 286 (TTAB
1965) [NO BONES ABOUT IT for fresh pre-cooked ham]. In each of
these cases, the secondary interpretations that make each
expression a double entendre consist of an association that
members of the public would make quite readily.
Similarly, we conclude on this record, that members of
the public who become acquainted with registrant’s services
would readily make an association between its QUAKER STEAK
marks and QUAKER STATE oils and lubes.
Inasmuch as consumers are accustomed to seeking out
themed restaurants and coffee shops featuring a variety of
specific cuisines, atmospheres, décors and/or modes of
Serial No. 78465668
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service, we find that applicant’s QUAKER COFFEE mark, as
applied to its coffee shop services, will suggest the
historically significant Society of Friends of southeastern
Pennsylvania. This connotation is underscored by the logo of
a Quaker boy on his bicycle that applicant often uses with
its service mark. By contrast, the QUAKER STEAK … marks
project a significantly different commercial impression by
evoking the QUAKER STATE gas stations and associated oil and
lube products.
Accordingly, notwithstanding the phonetic and visual
similarities in the respective marks and the closely-related
nature of applicant’s and registrant's services, we find on
the record before us, in light of the significant differences
in connotation, that applicant’s mark is sufficiently
distinguishable in commercial impression from registrant’s
marks such that confusion as to origin or affiliation is not
likely. See In re British Bulldog, Ltd., supra.
Decision: The refusal to register under Section 2(d) of
the Lanham Act is hereby reversed. A Notice of Allowance
will issue to applicant in due course.