No. 87210814 (T.T.A.B. Jul. 24, 2018)

Reel Fish Holdings LLC

Trademark Trial and Appeal BoardJul 24, 2018

No. 87210814 (T.T.A.B. Jul. 24, 2018)

This Opinion is Not a Precedent of the TTAB Mailed: July 24, 2018 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Reel Fish Holdings LLC _____ Serial No. 87210814 _____ Peter H. Thimm for Reel Fish Holdings LLC. Samuel R. Paquin, Trademark Examining Attorney, Law Office 101, Ronald R. Sussman, Managing Attorney. _____ Before Cataldo, Bergsman and Hightower, Administrative Trademark Judges. Opinion by Cataldo, Administrative Trademark Judge: I. Background Applicant, Reel Fish Holdings LLC, seeks registration on the Principal Register of the mark REEL FISH COASTAL KITCHEN & BAR, in standard characters, “COASTAL KITCHEN & BAR” disclaimed, identifying the following services: Bar and restaurant services; Bar and cocktail lounge services; Restaurant; Restaurant and bar services; Restaurant and bar services, Serial No. 87210814 - 2 - including restaurant carryout services; Restaurant and café services; Restaurant and catering services; Restaurant services; Restaurant services featuring seafood; Restaurant services, including sit-down service of food and take-out restaurant services; Restaurant services, namely, providing of food and beverages for consumption on and off the premises; Restaurant, bar and catering services; Restaurants; Provision of food and drink in restaurants; Take-out restaurant services in International Class 43.1 The Examining Attorney has finally refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the registered mark THE REEL FISH CO in standard characters, “FISH CO” disclaimed, identifying “fish; fish extract; fish soups; prepared meals consisting primarily of fish” in International Class 29.2 After the final Office Action, Applicant appealed and requested reconsideration. The Examining Attorney denied the request, and this appeal proceeded and is fully briefed.3 We affirm the refusal to register for the reasons set out below. II. Evidentiary Objection Applicant included in its appeal brief hyperlinks to Registrant’s Twitter feed and Facebook page.4 Applicant further makes reference in its brief to a third-party registration, assertedly for a mark similar to the mark in the cited registration.5 1 Application Serial No. 87210814 was filed October 20, 2016, based on an asserted bona fide intent to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). 2 Registration No. 4483407 issued February 18, 2014. 3 Applicant did not submit a reply brief. 4 4 TTABVUE 6. 5 Id. Serial No. 87210814 - 3 - Applicant did not introduce into the record during prosecution of its involved application either printouts from Registrant’s social media feeds or pages, or a copy of the asserted third-party registration. In his brief, the Examining Attorney objects to these references as constituting “new evidence” on the basis that none of the references were properly introduced into the record. We have made clear that providing hyperlinks to internet materials is insufficient to make such materials of record. See In re Olin, 124 USPQ2d 1327, 1331 n.15 (TTAB 2017) (citing In re Powermat Inc., 105 USPQ2d 1789, 1791 (TTAB 2013)); In re HSB Solomon Assocs., LLC, 102 USPQ2d 1269, 1274 (TTAB 2012) (stating that “a reference to a website’s internet address is not sufficient to make the content of that website or any pages from that website of record”); Safer Inc. v. OMS Investments Inc., 94 USPQ2d 1031, 1039 (TTAB 2010) (noting that because of the transitory nature of internet postings, websites referenced only by links may later be modified or deleted). The procedure for making printouts of internet evidence of record is addressed in Trademark Manual of Examining Procedure (TMEP) § 710.01(b) (October 2017) and the cases cited therein. Furthermore, the Board does not take judicial notice of applications or registrations; they must be proved by competent evidence. See, e.g., In re Jonathan Drew Inc., 97 USPQ2d 1640, 1644 n.11 (TTAB 2011) (stating that “the Board's well-established practice is not to take judicial notice of registrations that reside in the USPTO”); Beech Aircraft Corp. v. Lightning Aircraft Co., 1 USPQ2d 1290, 1293 (TTAB 1986) (“[W]e do not take judicial notice of application and registration files that reside in the Patent and Trademark Office on Serial No. 87210814 - 4 - the basis of their mere identification in briefs, pleadings and evidentiary submissions.”). As a result, neither the information assertedly available by following the hyperlinks nor the referenced third-party registration is evidence in this appeal, nor will they be given any consideration. Accordingly, the Examining Attorney’s evidentiary objection is moot.6 We turn now to the merits of this appeal. III. Likelihood of Confusion The determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “du Pont factors”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the relatedness of the goods and services. See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential 6 The evidentiary record in an application should be complete prior to the filing of an appeal. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d); Trademark Board Manual of Procedure (TBMP) §§ 1203.02(e), 1207.01 (June 2018); TMEP § 710.01(c) (Oct. 2017). The proper procedure for an applicant or examining attorney to introduce evidence after an appeal has been filed is to submit a written request with the Board to suspend the appeal and remand the application for further examination. See Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). See also TBMP § 1207.02 and authorities cited therein. Serial No. 87210814 - 5 - characteristics of the goods [and services] and differences in the marks.”). We have considered each relevant du Pont factor for which there is evidence or argument, and have treated any other factors as neutral. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we have considered each factor for which we have evidence, we focus our analysis on those factors we find to be relevant.”). Varying weights may be assigned to each du Pont factor depending on the evidence presented. Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (factors “may play more or less weighty roles in any particular determination”). A. The Goods and Services We must determine whether the degree of relatedness of the goods and services rises to such a level that consumers would mistakenly believe the respective goods and services emanate from the same source. In making this analysis under the second du Pont factor, we look to the identifications in the application and cited registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Applicant identifies various restaurant and bar services that include “[r]estaurant services featuring seafood,” while the cited registration identifies “fish; fish extract; fish soups; prepared meals consisting primarily of fish.” Serial No. 87210814 - 6 - Applicant argues that the Examining Attorney has not shown the requisite “something more” needed to establish the relatedness of food items and restaurant services. “‘[T]o establish likelihood of confusion a party 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) (citation omitted); see also In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1087 (Fed. Cir. 2014) (explaining the need to show “‘something more’ than the mere fact that the goods and services are ‘used together’” in situations where the relatedness of the goods and services is obscure or not generally recognized). In Coors, the Court of Appeals for the Federal Circuit explained why more evidence than just showing restaurants sell beer is required to prove that those goods and services are related: It is not unusual for restaurants to be identified with particular food or beverage items that are produced by the same entity that provides the restaurant services or are sold by the same entity under a private label. Thus, for example, some restaurants sell their own private label ice cream, while others sell their own private label coffee. But that does not mean that any time a brand of ice cream or coffee has a trademark that is similar to the registered trademark of some restaurant, consumers are likely to assume that the coffee or ice cream is associated with that restaurant. The Jacobs case [Jacobs v. International Multifoods Corp., 668 F.2d 1234, 212 USPQ 641 (CCPA 1982)] stands for the contrary proposition, and in light of the very large number of restaurants in this country and the great variety in the names associated with those restaurants, the potential consequences of adopting such a principle would be to limit dramatically the number of marks that could be used by producers of foods and beverages. Serial No. 87210814 - 7 - Coors, 68 USPQ2d at 1063. In other words, there is no per se rule that certain goods and services are related. Lloyd’s Food Products, Inc. v. Eli’s, Inc., 987 F.2d 766, 25 USPQ2d 2027 (Fed. Cir. 1993) (no per se rule about confusion, where similar marks are used in connection with restaurant services and food products). The diversity and expansion of businesses in a modern economy is not, in and of itself, sufficient to support an inference that purchasers are apt to believe that disparate products or services emanate from the same source. See In re American Olean Tile Co., 1 USPQ2d 1823, 1826 (TTAB 1986). The Board has found the “something more” requirement to be met under the following circumstances: • Applicant’s mark made clear that its restaurant specialized in registrant’s type of goods. See In re Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209, 1211 (TTAB 1999) (AZTECA MEXICAN RESTAURANT for restaurant services confusingly similar to AZTECA for Mexican food items) 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); • The record showed that registrant’s wines were actually sold in applicant's restaurant. See In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001) (“the record in this case reveals that registrant’s OPUS ONE wine is offered and served by applicant at its OPUS ONE restaurant.”); and • Registrant’s mark was found to be “a very unique, strong mark.” See In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1469 (TTAB 1988) (“the Examining Attorney Serial No. 87210814 - 8 - has indicated that he has been unable to find, in the records of the Patent and Trademark Office, any registration, other than the cited registration, for a mark containing the expression ‘Mucky Duck,’” nor has applicant offered any evidence of third-party use of marks containing the expression). We now analyze whether the record includes evidence sufficient to meet the “something more” requirement. The Examining Attorney has introduced evidence suggesting that restaurants featuring seafood also operate seafood markets, often adjoining the restaurant, offering fresh or frozen seafood and prepared seafood meals for sale.7 Other restaurants that serve, inter alia, seafood also offer prepared or frozen fish and other seafood for sale on their websites or at adjoining seafood markets that may be shipped throughout the country.8 For example: The website for Champlin’s Seafood advertises a seafood restaurant located next to a dock where fishermen unload lobster and fresh fish for sale at Champlin’s seafood market located at the same dock; The website for Flanders Fish Market advertises a full service seafood restaurant and a fresh seafood marketplace offering fresh and prepared seafood, seasonings and clothing items; The website for Margaritaville advertises restaurant services and prepared foods including prepared seafood meals; 7 Examining Attorney’s February 2, 2017 First Office Action at .pdf 14-24; Examining Attorney’s July 19, 2017 Final Office Action at .pdf 15-31. 8 Id. Serial No. 87210814 - 9 - The website for Phillips Seafood advertises restaurants featuring seafood and prepared seafood meals; The website for San Pedro Fish Market advertises fast food and sit down restaurant services featuring seafood and a separate seafood counter offering crabs, salmon, halibut and cod as well as side dishes and prepared seafood meals that are also available at grocery stores; The website for Legal Seafood advertises a seafood restaurant and a fish market offering frozen and prepared fish, shellfish and other food items; The website for Deanie’s Seafood advertises a restaurant serving seafood and a fish market offering for sale fresh seafood and prepared food items that may be purchased locally or shipped throughout the United States; The website for Mac’s Seafood of Cape Cod advertises a seafood restaurant and a fish market offering fresh fish and prepared food items; The website for Walt’s Fish Market advertises a seafood restaurant and fish market offering fresh fish and shellfish; The website for Safe Harbor Seafood Market and Restaurant advertises restaurant services and a seafood market offering fresh fish and shellfish; The website for Blacksalt Fish Market and Restaurant advertises a restaurant and fish market offering fresh fish and prepared items; and The website for Phil’s Fish Market advertises restaurant services and a fish market offering fresh fish and prepared seafood meals. Serial No. 87210814 - 10 - This marketplace evidence demonstrates that consumers encounter restaurants featuring seafood that also operate fish markets offering fresh and frozen fish and other seafood as well as prepared food items for sale that may be shipped throughout the country. This evidence also demonstrates that consumers encounter websites that advertise seafood restaurants and frozen or prepared seafood meals available for purchase. The evidence suggests that seafood restaurants, in particular, venture specifically into the fresh and frozen fish and seafood industry, marketing such seafood under their restaurant marks, even when that seafood is sold through grocery stores or through internet websites. Indeed, the evidence shows that some seafood restaurants begin as fresh and frozen fish markets and later expand into restaurant services. Showing “something more” than just that these goods and services are offered under the same mark, numerous examples from the record also reflect mark owners touting the connection between their restaurants and their fresh and frozen fish and seafood, making restaurant customers aware that, for example, at the San Pedro Fish Market, they can purchase fresh fish and side dishes to prepare and eat at home, dine in their dining room, or “choose your fish and name you[r] dish! Anything you buy, we’ll grill, fry, BBQ, sauté, etc. the way you like it!”9 San Pedro Fish Market’s seasoned shrimp and seasonings are also available at various grocery stores.10 The website for Deanie’s Seafood Market similarly offers fresh and prepared local seafood for sale, two restaurants for formal dining, and online delivery of its 9 February 2, 2017 First Office Action at .pdf 20. 10 Id. at 22. Serial No. 87210814 - 11 - fresh or prepared seafood anywhere in the continental United States.11 We note that in this case Applicant’s various unrestricted identifications of “restaurant services” encompass seafood restaurants in addition to its specific identification of “Restaurant services featuring seafood.” Indeed, website evidence in the record shows that Applicant operates a seafood restaurant.12 The evidence of industry practice with seafood restaurants also offering fish and prepared meals featuring fish through retail channels including fish markets and the internet contributes to the requisite “something more.” In addition, the “something more” requirement is met because Applicant’s mark REEL FISH COASTAL KITCHEN & BAR makes clear that its restaurant specializes in Registrant’s goods - “fish; fish extract; fish soups; prepared meals consisting primarily of fish.” In re Azteca Restaurant Enterprises, Inc., 50 USPQ2d at 1211 (AZTECA MEXICAN RESTAURANT for restaurant services confusingly similar to AZTECA for Mexican food items); In re Golden Griddle Pancake House Ltd., 17 USPQ2d at 1074 (GOLDEN GRIDDLE PANCAKE HOUSE for restaurant services confusingly similar to GOLDEN GRIDDLE for table syrup). Overall, we find that the record amply supports the relatedness of restaurant services and fresh or frozen fish and prepared meals featuring fish. Considering the non-precedential case cited by Applicant for whatever probative value it may have, we find it quite distinguishable. See In re Constr. Research & Tech. 11 July 19, 2017 Final Office Action at 15-17. 12 February 2, 2017 First Office Action at .pdf 8-9; July 19, 2017 Final Office Action at .pdf 7-8. Serial No. 87210814 - 12 - GmbH, 122 USPQ2d 1583, 1585 n.6 (TTAB 2017) (“Board decisions which are not designated as precedent are not binding on the Board, but may be cited and considered for whatever persuasive value they may hold.”) (citations omitted). In comparing the records, the evidence in In re Southwestern Management, Inc., consisted of third-party registrations reciting the goods and services at issue without any additional marketplace evidence establishing that consumers would expect them to emanate from a common source. The evidence in this case is far more persuasive. Further, evidence of record established that the marks at issue in Southwestern Management, namely DELMONICO’S and two registrations owned by different entities for DELMONICO, are surnames existing in a crowded field of food items. Based on the record as a whole, we find the various restaurant services in the application and the fish and prepared meals featuring fish in the cited registration to be related. The evidence as to restaurants and fish as well as prepared meals consisting primarily of fish shows that “the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source.” Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012). B. Trade Channels and Classes of Consumers Any alleged actual marketplace differences for Applicant and Registrant are not borne out by the unrestricted identifications of goods and services. This du Pont factor must be assessed according to the identifications of the respective goods and services in the application and registration at issue, not on extrinsic evidence of actual use. Serial No. 87210814 - 13 - See, e.g., Coach Servs., 101 USPQ2d at 1722; Octocom, 16 USPQ2d at 1787. We must assume that the identified goods and services move through all normal and usual channels of trade and methods of distribution for such goods and services. In re i.am.symbolic llc, 866 USPQ2d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983). The marketplace evidence set out above reflects that fish, prepared meals consisting primarily of fish, and restaurant services featuring seafood are promoted together, often through the same websites, and the goods and services reach the same classes of consumers at restaurants that also feature fish markets. In addition, the evidence of record indicates that seafood restaurants sell frozen fish at other retail locations, such as grocery stores, separate from the restaurant locations. C. Similarity of the Marks Next, we turn to the du Pont factor comparing the applied-for and cited marks, which we consider “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). The test assesses not whether the marks can be distinguished in a side-by-side comparison, but rather whether their overall commercial impressions are so similar that confusion as to the source of the goods and services offered under the respective marks is likely to result. Coach Servs., 101 USPQ2d at 1721; see also Edom Labs., Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). Serial No. 87210814 - 14 - Comparing the applied-for REEL FISH COASTAL KITCHEN & BAR mark to the registered mark THE REEL FISH CO, we find the marks to be more similar than dissimilar. The marks contain the identical first terms, [THE] REEL FISH. In both marks, as explained below, these words dominate over any other wording. In Applicant’s mark, REEL FISH COASTAL KITCHEN & BAR, the wording “COASTAL KITCHEN & BAR” is, at best, highly descriptive of Applicant’s restaurant and bar services. Evidence of record establishes that “COASTAL” merely describes a type of cuisine featuring seafood dishes.13 “KITCHEN & BAR” is highly descriptive, if not generic, for restaurant and bar services.14 Applicant complied with the Examining Attorney’s requirement for a disclaimer of “COASTAL KITCHEN & BAR” as describing Applicant’s services,15 also an implicit acknowledgment, with which we agree, that REEL FISH COASTAL KITCHEN & BAR is not a unitary term with a distinct meaning derived from the combination of words. See TMEP § 1213.05 (Oct. 2017) (“If the matter that comprises the mark or relevant portion of the mark is unitary, no disclaimer of an element, whether descriptive, generic, or otherwise, is required.”). Thus, with Applicant’s mark, consumers would be more likely to perceive as the stronger source-indicating feature of the mark a more distinctive term like REEL FISH, rather than the descriptive or generic wording. See, e.g., In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (affirming 13 February 2, 2017 First Office Action at 11; July 19, 2017 Final Office Action at .pdf 7-14. 14 February 2, 2017 First Office Action at 12-13. 15 July 29, 2017 Request for Reconsideration at .pdf 2. Serial No. 87210814 - 15 - TTAB’s finding that the dominant portion of the mark THE DELTA CAFE was DELTA, not the disclaimed generic term CAFE); In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009) (finding that the dominant portion of the mark BINION’S ROADHOUSE was BINION’S, not the disclaimed descriptive wording ROADHOUSE). That REEL FISH comprises the first terms in the mark also contributes to its dominance. See Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (noting that the first word of a mark is “most likely to be impressed upon the mind of a purchaser and remembered”). In the cited mark above, THE REEL FISH CO, the definite article “THE” in the mark has little, if any, source identifying significance. Jay-Zee, Inc. v. Hartfield- Zodys, Inc., 207 USPQ 269, 271-72 (TTAB 1980) (“Since the psychological and marketing impact of petitioner’s mark in its earlier version clearly was derived from the word ‘IMAGE,’ the omission of the word ‘THE’ (the definite article serving merely to emphasize ‘IMAGE’) from the later version did not interrupt the continuity of use.”); U. S. Nat’l Bank of Oregon v. Midwest Savings and Loan Ass’n, 194 USPQ 232, 236 (TTAB 1977) (“The definite article ‘THE’ likewise adds little distinguishing matter because the definite article most generally serves as a means to refer to a particular business entity or activity or division thereof, and it would be a natural tendency of customers in referring to opposer’s services under the mark in question to utilize the article ‘THE’ in front of ‘U-BANK’ in view of their uncertain memory or recollection of the many marks that they encounter in their everyday excursion into the marketplace.”). The disclaimed wording “FISH CO” appears to be generic for the Serial No. 87210814 - 16 - identified goods that include “fish; fish extract; fish soups; prepared meals consisting primarily of fish” and the shortened form of an entity designation. We find that in both marks, REEL would be understood as modifying FISH, and the phrase REEL FISH dominates both. See In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224 USPQ 749, 750-51 (Fed. Cir. 1985) (“in articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties”); see also Stone Lion Capital, 110 USPQ2d at 1161. For the reasons explained above, regardless of any conceptual weakness of “REEL” based on its suggestiveness of a method of catching fish, it still stands out in the marks. As to the meaning of REEL FISH, we find that it is a clever double entendre that gives the impression of fish that is caught on a fishing reel, and fish that is fresh, i.e., “real.” “REEL” is defined as “a cylindrical device attached to a fishing rod to let out or wind up the line; to recover by winding on a reel; reel in a large fish.”16 “Real” is defined as “genuine and authentic; not artificial of spurious; real mink; real humility.”17 Applicant expresses doubt, however, that REEL in the cited mark carries the same connotation as in its mark. According to Applicant’s assessment of the cited marks, While the commercial impression created by registrant’s mark is not immediately apparent upon first impression, the applicant’s mark, when considered in its entirety including the words “COASTAL KITCHEN AND BAR,” is clearly that of a restaurant. In fact applicant’s 16 July 19, 2017 Final Office Action at 32, definition from The American Heritage Dictionary ahdictionary.com. 17 Id. at 33. Serial No. 87210814 - 17 - mark is most properly regarded as a service mark in comparison to registrant’s trademark on a good (canned fish and prepared seafood meals). Furthermore the suggestive double entendres used in both marks are different, with applicant’s use of the word REEL meant to invoke “genuine” while registrant’s use of REEL refers to the actual equipment used in the catching of the goods they sell. Where the public can readily associate and interpret double entendre the double entendre’s [sic] are to be given weight as having distinctiveness.18 However, there is little evidence in the record regarding how consumers will perceive the marks or the impressions they make upon the typical purchaser of the respective goods and services. Simply put, there is insufficient evidence in the record to support Applicant’s speculative argument that consumers will perceive “REEL” or “REEL FISH” differently in the applied-for mark or registered mark. Indeed, consumers may view both marks as suggesting both fish caught on fishing reels and fish that is fresh, genuine and authentic. Thus, we disagree with Applicant’s contention that the marks convey significantly different connotations so as to preclude confusion. We acknowledge the obvious differences between the marks THE REEL FISH CO and REEL FISH COASTAL KITCHEN & BAR. Nonetheless, the most distinctive portions of the marks are essentially identical in appearance, sound and meaning. Overall, we find that because of the very similar dominant wording shared by the marks, and because the other wording has much less significance in the commercial impression of the marks, Applicant’s mark and the cited marks have a more similar than dissimilar look, sound, meaning, and commercial impression. 18 4 TTABVUE 4 (Applicant’s Brief). Serial No. 87210814 - 18 - E. Conclusion The overall similarity of the marks for related goods and services that move in channels of trade reaching the same classes of customers renders confusion likely. Decision: The refusal to register Applicant’s mark is affirmed.