Robinson Home Products Inc.

Trademark Trial and Appeal Board

Oct 11, 2019

87647434 (T.T.A.B. Oct. 11, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 11, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Robinson Home Products Inc.
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Serial No. 87647434
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Kenneth F. Florek of Florek & Endres PLLC
for Robinson Home Products Inc.
Anna J. Oakes, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.
_____

Before Lykos, Greenbaum, and Coggins,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:
Robinson Home Products Inc. (“Applicant”) seeks to register on the Principal
Register the composite mark displayed below

for goods ultimately identified as
Flatware, namely, forks, knives, and spoons; cutlery,
namely, kitchen knives; spreaders in the nature of a small
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knife for butter or cheese; scissors; non-electric slicers,
namely, hand operated slicers, cheese slicers, vegetable
slicers, food slicers, pizza slicers and egg slicers; non-
electric fruit and vegetable peelers; non-electric can
openers; apple corers and vegetable corers; non-electric
pizza cutters; hand-operated foods choppers; meat
tenderizers, namely, mallets with textured surface for
striking meat; cutters for wine bottle foil; butter spreaders,
namely, spreaders in the nature of a small knife for butter
in International Class 8;
Measuring cups; measuring spoons; jiggers; thermometers
not for medical purposes; timers; scales in International
Class 9; and
Dinnerware; serving spoons; basting spoons; mixing
spoons; serving forks; kitchen utensils, namely, spatulas,
turners, ladles, scoops; ice cream scoops; basting brushes;
pastry brushes; whisks; vegetable mashers; cake servers;
pie servers; serving tongs; ice tongs; cooking strainers;
cheese graters; rolling pins; funnels; cooking skewers;
colanders; non-electric cooking steamers; melon ballers;
spoon rests; dish covers; food basters; garlic presses; hand-
operated flour sifters for household use; cutting boards;
wood cutting boards; serving boards, namely, servingware
for serving food; salad spinners; roasting racks for use with
pans; cooking racks for use with roasting pans; cooking
racks, namely, oven to table racks, cooling racks for baked
goods; salt shakers; gravy separators being kitchen
utensils; spring form cake pans; knife blocks; non-electric
juicers; fruit muddlers; cork screws; pourers, namely,
pouring spouts for kitchen use; cocktail shakers; wine
aerators; drain stoppers for sinks and drains; beverage
stirrers; ice buckets; mixing bowls; non-electric hand
operated pepper mills and spice mills; kitchen tool crocks,
namely, containers for holding a variety of kitchen utensils
on a counter; kitchen tool racks, namely, racks on which
kitchen utensils can be hung; cake decorators, namely,
icing dispensers; icing spatulas for kitchen use; egg
separators, namely, separators for separating egg yolk
from egg white; cookware, namely, pots and pans; cast iron
frypans; bakeware; cookie sheets; nutcrackers not of
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precious metal; non-electric cherry pitters and olive pitters
in International Class 21.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it
so resembles the following registered marks below on the Principal Register, all
owned by the same entity that, when used on or in connection with Applicant’s
identified goods, it is likely to cause confusion or mistake or to deceive:
Registration No. 1660860 for the mark KITCHEN CRAFT
(typed characters)2 with KITCHEN disclaimed for
“aluminum cooking utensils; namely, pans, skillets,
roasters, casseroles, kettles, coffeemakers, and griddles” in
International Class 21;3
Registration No. 3071514 for the mark KITCHEN CRAFT
(standard characters) with KITCHEN disclaimed for
“Electric slow cookers, electric skillets, and water
distillers” in International Class 11;4
Registration No. 3491878 for the mark displayed below

1 Application Serial No. 87647434, filed October 16, 2017, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), claiming a bona fide intent to use the mark in commerce.
The description of the mark is as follows: “The mark consists of the words ‘Craft Kitchen’
with the head of a slotted turner forming the middle of the ‘a’ in ‘Craft.’” Color is not claimed
as a feature of the mark.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system and identify documents by title and date. Specific citations are to
the page number in the .pdf version of the TSDR records. References to the briefs and other
materials in the appeal record refer to the Board’s TTABVUE docket system.
2 Prior to November 2, 2003, standard character marks were known as typed marks. A typed
mark is the legal equivalent of a standard character mark. TRADEMARK MANUAL OF
EXAMINING PROCEDURE (“TMEP”) § 807.03(i) (Oct. 2018).
3 Registered on October 15, 1991; renewed.
4 Registered on March 21, 2006; renewed.
Serial No. 87647434
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with KITCHEN disclaimed for “Slicers, namely, cheese
slicers, egg slicers, hand-operated slicers; hand-operated
food dicers; hand-operated choppers; cutters, namely, pizza
cutters, cake cutters; cutlery, namely, forks, spoons, and
knives” in International Class 8; “Electric slow cookers,
electric skillets, and water distillers” in International Class
11; “Cookware and bakeware, namely, saucepans, pots,
skillets, ricers, steamers, strainers, pasta baskets, dutch
ovens, griddles, baking pans, roasting pans, and cake pans”
in International Class 21; and “Promoting the specialized
cookware of others by means of mobile cooking
demonstrations and cooking shows” in International Class
35.5
When the refusal was made final, Applicant requested reconsideration. When the
Trademark Examining Attorney maintained the refusal to register and denied the
request for reconsideration Applicant appealed. The appeal is fully briefed.
For the reasons set forth below, we affirm the Section 2(d) refusal.
I. Likelihood of Confusion - Applicable Law
Our determination under Section 2(d) is based on 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) (“du Pont”). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003). We must consider each du Pont factor for which there is evidence and
argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-

5 Registered on August 26, 2008; renewed. The description of the mark is as follows: “The
mark consists of [t]he design of an apple next to the words ‘KITCHEN CRAFT’.” Color is not
claimed as a feature of the mark.
Serial No. 87647434
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63 (Fed. Cir. 2019). When analyzing these factors, the overriding concern is not only
to prevent buyer confusion as to the source of the goods, but also to protect the
registrant from adverse commercial impact due to use of a similar mark by a
newcomer. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir.
1993).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (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 characteristics of the goods and differences in the marks.”). These
factors, and the other relevant du Pont factors, are discussed below.
A. The Goods and Established, Likely-to-Continue Channels of Trade6
Insofar as the Examining Attorney’s refusal applies to all three classes of goods,
we shall consider the second and third du Pont factors as applied to each individual
class.
With regard to the second du Pont factor, we compare the goods as they are
identified in the application and the cited registrations. See Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014); Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990). We focus our analysis on cited Registration No. 3491878

6 Applicant did not present arguments regarding these factors in its briefs.
Serial No. 87647434
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because the goods listed in this registration have the most similarities with
Applicant’s identified goods. Cf. In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245
(TTAB 2010).
Both the application and cited Registration No. 3491878 include “cheese slicers,”
“hand operated slicers,” “pizza cutters”7 and “hand operated choppers”8 in
International Class 8 and “pots” in International Class 21. Thus, on their face,
Applicant’s and Registrant’s goods are in-part identical for these two classes. Because
the International Class 8 and 21 goods are in-part identical and unrestricted as to
trade channels, we must also presume that these particular goods travel in the same
ordinary trade and distribution channels and will be marketed to the same potential
consumers. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.
2012) (even though there was no evidence regarding channels of trade and classes of
consumers, the Board was entitled to rely on this legal presumption in determining
likelihood of confusion); 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); Am. Lebanese Syrian Associated
Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011).

7 Because Registrant’s “pizza cutters” are listed in International Class 8, we can assume that
they are identical to Applicant’s “non-electric pizza cutters.”
8 Given the category of the goods, we can assume that “hand operated choppers” are the same
as “hand operated food choppers.”
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Thus, the second9 and third du Pont factors favor a likelihood of confusion with
respect to Applicant’s International Class 8 and 21 goods.
With regard to Applicant’s International Class 9 goods as compared to the goods
listed in Registration No. 3491878, unlike the International Class 8 and 21 goods
discussed above, none are identical. However, it is well established that the goods
need not be identical or even competitive to find a likelihood of confusion. On-line
Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir.
2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000).
They need only be “related in some manner and/or if the circumstances surrounding
their marketing are such that they could give rise to the mistaken belief that [the
goods] emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v.
Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). Evidence of relatedness may include
news articles and/or evidence from computer databases showing that the relevant
goods are used together or used by the same purchasers; advertisements showing
that the relevant goods are advertised together or sold by the same manufacturer or
dealer; and/or copies of prior use-based registrations of the same mark for both

9 Under this du Pont factor, the Examining Attorney need not prove, and we need not find,
similarity as to each product listed in the description of goods. It is sufficient for a refusal
based on likelihood of confusion that relatedness is established for any item encompassed by
the identification of goods in a particular class in the application. Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic,
llc, 116 USPQ2d 1406, 1409 (TTAB 2015); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5
(TTAB 2015) (“it is sufficient for finding a likelihood of confusion if relatedness is established
for any item encompassed by the identification of goods within a particular class in the
application.”).
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applicant’s goods and the goods listed in the cited registration. See, e.g., In re Davia,
110 USPQ2d 1810, 1817 (TTAB 2014) (finding pepper sauce and agave related where
evidence showed both were used for the same purpose in the same recipes and thus
consumers were likely to purchase the products at the same time and in the same
stores).
To show that Applicant’s “measuring cups; measuring spoons; … thermometers
not for medical purposes; [and] timers” in International Class 9 goods are related to
some of Registrant’s goods, the Examining Attorney submitted the following
evidence:
Cuisinart (http://www.cuisinart.com) offering measuring
cups, measuring spoons, meat thermometers and timers as
well as slow cookers, pizza cutters, egg slicers, fruit slicers,
pineapple slicers, hand-operated fruit and vegetable
choppers, cutlery knives, mesh strainers, spider strainers
under the Cuisinart mark. April 27, 2018 Office Action, pp.
11-39.
Culina (https://culinacollection.com) offering measuring
cups, cake pans, electric skillets, ricers, mandoline slicers,
stainless steel strainers, mesh strainers, and pizza cutters
under the Culina mark. Id. at 77-95.
Le Creuset (http://www.creuset.com) offering stainless
steel measuring cups and measuring spoons as well as
saucepans, pots and skillets under the Le Creuset mark.
January 3, 2018 Office Action, pp. 13-20.
Meat thermometers, pots and saucepans sold under the T-
Fal mark by online retailers such as Amazon and Shopko.
April 27, 2018 Office Action, pp. 48-66.
Thermometers, timers, skillets, pots, baking pans, cake
pans and saucepans sold under the Martha Stewart mark
by Macy’s (https://www.macys.com/shop/for-the-
home/marth-stewart-collection). January 3, 2018 Office
Action, pp. 21-39.
Serial No. 87647434
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Pampered Chef (http://www.pamperedchef.com) offering
candy thermometers, measuring cups, timers as well as
roasting pans, baking pans, cake pans, pots, skillets,
steamers, dutch ovens, apple slicers, and food slicers under
the Pampered Chef mark. Id. at 40-76.
Thus, the Examining Attorney has submitted substantial evidence demonstrating
that it is common for some of Applicant’s International Class 9 and Registrant’s goods
to be sold under the same mark by entities manufacturing both sets of goods. We can
also assume that consumers may use items such as measuring cups, measuring
spoons and timers alongside pots, skillets, baking pans, roasting pans, cake pans,
when cooking or baking. As such, these items are complementary in nature.
Accordingly, these items are both commercially and intrinsically related.
Because the Applicant’s International Class 9 identification and cited
Registration No. 3491878 have no restrictions on channels of trade, we must presume
that these goods travel in all channels of trade appropriate for such goods, which the
record shows include direct business-to-consumer (“B2C”) manufacturer operated
web sites specializing in kitchen and meal preparation products. See In re Viterra,
101 USPQ2d at 1908 (quoting Hewlett-Packard Co. v. Packard Press, Inc., 62 USPQ2d
at 1005). In addition, both parties’ goods may be encountered by the same prospective
consumers shopping for meal preparation tools, which includes members of the
general public shopping for kitchen items. As such, both the second and third du Pont
Serial No. 87647434
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factors for Applicant’s International Class 9 goods favor a finding of likelihood of
confusion.
B. The Marks

Next, we consider “the similarity or dissimilarity of the marks in their entireties
as to appearance, sound, connotation and commercial impression.” Palm Bay Imps.
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689 (Fed. 2005) (quoting du Pont, 177 USPQ at 567). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Inn at St.
John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d
at 1812), aff’d mem., (Fed. Cir. Sept. 13, 2019). Accord Krim-Ko Corp. v. Coca-Cola
Bottling 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.”)
(citation omitted). “The proper test is not a side-by-side comparison of the marks, but
instead ‘whether the marks are sufficiently similar in terms of their commercial
impression’ such that persons who encounter the marks would be likely to assume a
connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 101
USPQ2d at 1721 (quoting Leading Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82
USPQ2d 1901, 1905 (TTAB 2007)). See also Cai v. Diamond Hong, Inc., 901 F.3d
1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018); Midwestern Pet Foods, Inc. v. Societe
des Produits Nestle S.A., 685 F.3d 1046, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012).
The focus is on the recollection of the average purchaser, who normally retains a
Serial No. 87647434
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general rather than a specific impression of trademarks. See Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106, 108 (TTAB 1975).
In addition, our analysis cannot be predicated on dissection of the involved marks.
Stone Lion, 110 USPQ2d at 1161. Rather, we are obliged to consider the marks in
their entireties. Id. See also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005,
212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected
and considered piecemeal; rather, it must be considered as a whole in determining
likelihood of confusion.”). Nonetheless, 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 a consideration of the marks in their
entireties. Stone Lion, 110 USPQ2d at 1161.
Finally, it is well-settled that where the goods are identical in part, less similarity
between the marks is needed for us to find a likelihood of confusion. Coach Servs.,
Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721; Century 21 Real Estate Corp. v.
Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (“When
marks would appear on virtually identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion declines.”). For this reason, we
shall concentrate our analysis of the first du Pont factor by comparing Applicant’s
mark with the composite mark in Registration No. 3491878 given the that the goods
are in-part identical with regard to International Classes 8 and 21 and the evidence
summarized above showing a commercial and complementary relationship between
some of Applicant’s International Class 9 goods and some of the goods in that
Serial No. 87647434
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particular registration.
At the outset we note that both marks are composite marks with different design
elements. In Applicant’s mark, the head of a slotted turner forms the middle of the
letter ‘a’ in the word ‘Craft’;” in the cited mark a stylized apple precedes the wording
“Kitchen Craft.” In the cited mark, the word “Kitchen” has been disclaimed. Although
marks must be compared in their entireties, the word portion is often considered the
dominant feature and is accorded greater weight in determining whether marks are
confusingly similar, even where the word portion has been disclaimed. In re Viterra
Inc., 101 USPQ2d at 1911 (citing Giant Food, Inc. v. Nation’s Foodservice, Inc., 710
F.2d 1565, 218 USPQ2d 390, 395 (Fed. Cir. 1983)). Such is the case here where the
design element is integrated within the literal portion of Applicant’s mark and the
design element comes before the literal portion of Registrant’s mark. And considering
the marks as a whole, despite the distinct designs, both the apple and slotted turner
evoke a similar impression of food preparation.
Turning now to the literal components of each mark, where the primary difference
between marks is the transposition of the elements that compose the marks, and
where this transposition does not change the overall commercial impression, there
may be a likelihood of confusion. See, e.g., In re Wine Soc’y of Am. Inc., 12 USPQ2d
1139, 1142 (TTAB 1989) (holding THE WINE SOCIETY OF AMERICA and design
for wine club membership services including the supplying of printed materials, and
AMERICAN WINE SOCIETY 1967 and design for newsletters, bulletins, and
journals, likely to cause confusion); In re Nationwide Indus., Inc., 6 USPQ2d 1882,
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1884 (TTAB 1988) (holding RUST BUSTER (with RUST disclaimed) for rust-
penetrating spray lubricant, and BUST RUST for penetrating oil, likely to cause
confusion); In re Gen. Tire & Rubber Co., 213 USPQ 870, 871 (TTAB 1982) (holding
SPRINT STEEL RADIAL (with STEEL and RADIAL disclaimed) for pneumatic tires,
and RADIAL SPRINT (with RADIAL disclaimed) for radial tires, likely to cause
confusion). However, if the transposed mark creates a distinctly different commercial
impression, then confusion may not be likely. See, e.g., In re Best Prods. Co., 231
USPQ 988, 989-90 (TTAB 1986) (holding BEST JEWELRY and design (with
JEWELRY disclaimed) for retail jewelry store services, and JEWELERS’ BEST for
bracelets, not likely to cause confusion).
Applicant argues that this is a case where the transposition of the terms creates
a different commercial impression. Applicant contends that CRAFT KITCHEN
“connotes a location to produce specialized, individual or small batch items and not a
method or technique specific related to the culinary arts where KITCHEN CRAFT
connotes an act of producing food.” Brief, pp. 8-9; 4 TTABVUE 9-10. In support
thereof, Applicant submitted the declaration of expert linguist Dr. Robert A. Leonard
(“Leonard Declaration”), a tenured Professor of Linguistics at Hofstra University who
has taught linguistics for over 30 years and is the Director of Hofstra University’s
linguistics graduate program.10 See January 21, 2019 Request for Reconsideration.
Dr. Leonard received a Ph.D. in linguistics from Columbia University in 1982 and

10 Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827, 1834
(Fed. Cir. 2015) instructs the Board to “give appropriate consideration” to survey evidence.
Serial No. 87647434
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has lectured on the topic of linguistics and trademarks. Id. Applicant commissioned
Dr. Leonard to analyze “the meaning of the compound expressions ‘craft kitchen’ and
‘kitchen craft’, to determine whether the words ‘craft’ and ‘kitchen’, when paired
together, mean the same thing regardless of their ordering.” Id. Dr. Leonard began
with reviewing the dictionary entries for “craft” and “kitchen,” noting that “there is
not a unified, standard definition for either ‘kitchen craft’ or ‘craft kitchen’ that would
inform the reader’s understanding of the terms without the benefit of context of some
kind,” in other words neither term has a dictionary definition. Id. He then examined
actual written English usage of the terms “craft kitchen” and “kitchen craft” in the
Corpus of Contemporary American English (“COCA”)11 electronic database for the
years 1990-2017 and iWeb12 database hosted by Brigham Young University. Dr.
Leonard determined that the meanings of the expressions “craft kitchen” and
“kitchen craft” are not the same. According to his findings, “craft kitchen” is
“understood as a location that is … upscale, traditional, modern, local and rustic
establishments, associated with ingenuity, pleasure, and executive chefs.” Id.
Illustrations include:
Mow Brewing Company and Out of the Pot catering plans
to introduce its “upscale craft kitchen” to Largo.
cltampa.com.

11 As Dr. Leonard explains, “COCA is an online collection of over 560 million words of spoken
English from popular talk shows and texts from publications such as The New York Times,
Popular Mechanics, Newsweek, The Chicago Tribune, and PCWorld” and “is accepted among
experts in the field of linguistics as representative of current language use.”
12 Dr. Leonard describes iWeb as “an online collection of over 14 billion words from 22 million
web pages on 95,000 websites.”
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[O]n Thanksgiving Day this year, so we celebrated the
following evening at a local craft kitchen.
unsophisticatedcook.com.
Located about 7.5 miles from Lincoln Square, Fidler & Co.
is a craft kitchen and grocery, providing upscale rustic
dining. mccooltravel.com.
Id. Based on the COCA and iWeb “hits,” Dr. Leonard concluded that a “craft kitchen”
appears to be “a combination of things that may seem different on the surface:
upscale, yet rustic; traditional, yet modern; local (and thus accessible), yet belonging
to chefs and executive chefs (and thus exclusive).” Id. By contrast, “kitchen craft” is
“understood as something one can be proficient in, requiring precision and control
resulting in love and natural ease for a throwback, old-time clever art form that you
can eat.” Id. Examples of this use of the term “kitchen craft” include:
Our Mercer cleaver borrows from Asian kitchen craft and
features a rectangular blade for super thin slices and
precise control over hard vegetables.
williamsfodequipment.com.
Sebastian tapas holes-in-the-walls, he always
demonstrated, once it got down to the kitchen craft, a love
and natural facility that immediately explained his
bountiful real-world success. grantland.com.
I hope you’ll come back and link up another recipe or
kitchen craft this weekend. dearcreatives.com.
Id. Dr. Leonard analogizes the differences in meaning as similar to the distinction
between “house guest” and “guest house.”
Upon close review, many of the examples of English usage of the terms “kitchen
craft” and “craft kitchen” in Dr. Leonard’s findings are from Canadian, Australian
and United Kingdom articles and websites. See In re Bayer Aktiengesellschaft, 82
Serial No. 87647434
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USPQ2d 1828, 1835 (Fed. Cir. 2007) (“The probative value, if any, of foreign
information sources must be evaluated on a case-by-case basis.”). The record is devoid
of evidence that U.S. consumers frequently consult websites from these countries to
purchase kitchen or meal preparation products. See TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE (“TBMP”) § 1208.03 (2019) (“The nature of the goods
or services may make it more likely that U.S. consumers will encounter foreign
websites in the field in question.”). For this reason, these excerpts are of minimal, if
any probative value. In addition, many of the COCA and iWeb excerpts show the
phrases “kitchen craft” and “craft kitchen” in initial capitalization form which is
indicative of use as a trade or brand name.13 See In re Country Music Ass’n, Inc., 100
USPQ2d 1824 (TTAB 2011) (“[I]nitial capitalization of a term or phrase is generally
used to designate a brand name, as opposed to a generic term.”). Indeed, Dr. Leonard
acknowledges that “neither phrase is used frequently outside of product or
establishment names” and “[t]his indicates that there is not a unified, standard
definition for either ‘kitchen craft’ or ‘craft kitchen’ that would inform a reader’s
understanding of the terms without benefit of context of some kind.” Leonard
Declaration submitted with Applicant’s Request for Reconsideration. Thus, while a
few excerpts support Dr. Leonard’s position, the vast majority do not. We therefore

13 Examples include “Craft Kitchen & Bourbon Bar,” “Coastal Craft Kitchen & Bar,” “Fidler
& Co. Craft Kitchen,” “The Kitchen Craft Company of West Bend, WI,” “Kitchen Craft
Cabinetry.” Id. at 28-81.
Serial No. 87647434
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disagree that the record establishes that U.S. consumers will ascribe different
meanings to “craft kitchen” and “kitchen craft” as commonly recognized terms.14
We acknowledge that in Applicant’s mark “craft” functions as an adjective
modifying the noun “kitchen” whereas in the cited mark “kitchen” serves as an
adjective modifying the noun “craft.” Nonetheless, transposing these two terms does
not appreciably alter the connotation or commercial impression of the marks as a
whole, given the nature of the goods. Consumers are more likely to focus on the
meaning of each individual word and confuse the sequence. In addition, the marks
overall bear similarities in sight and sound. The literal element of each mark consists
of the same two words, “kitchen” and “craft,” and only these two words. Again, for
this reason, consumers are likely to make mistakes in recalling the sequence of the
words in each mark. Another similarity is that in each mark, the design elements
evoke food and meal preparation. Consumers do not focus on minutia but rather
overall impressions. See In re John Scarne Games, Inc., 120 USPQ 315, 315-16 (TTAB
1959) (“Purchasers of game boards do not engage in trademark syllable counting —
they are governed by general impressions made by appearance or sound, or both.”).
This is especially true here where some of the involved goods are in-part identical and
the remaining goods are commercial related and complimentary.

14 To the extent, if any, the Leonard Declaration contains legal conclusions, our precedent
and statutory authority require us to make our own legal determinations in each case. See In
re Canine Caviar Pet Foods, Inc., 126 USPQ2d 1590, 1597 n.31 (TTAB 2018).

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Overall, Applicant’s applied-for composite mark is similar in appearance, sound,
connotation and commercial impression with the composite mark in Registration No.
3491878, given that they contain the two same identical words transposed (in thick,
black, sans-serif fonts, with the “K” and “C” capitalized) and incorporate designs
evoking food or meal preparation. When considered in their entireties, the marks are
much more similar than dissimilar. This du Pont factor also weighs heavily in favor
of finding a likelihood of confusion.
C. Strength of the Cited Mark
We will now consider the number and nature of similar marks in use on similar
goods and the commercial strength of the cited mark. In an ex parte appeal, “[t]he
purpose of [an applicant] introducing third-party uses is to show that customers have
become so conditioned by a plethora of such similar marks that customers have been
educated to distinguish between different such marks on the bases of minute
distinctions.” Palm Bay, 73 USPQ2d at 1694. See also Jack Wolfskin Ausrustung Fur
Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116
USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794
F.3d 1334, 115 USPQ2d 1671, 1675-76 (Fed. Cir. 2015). “[T]he strength of a mark is
not a binary factor” and “varies along a spectrum from very strong to very weak.”
Juice Generation, 115 USPQ2d at 1675-76 (internal citations omitted). “The weaker
[the Registrant’s] mark, the closer an applicant’s mark can come without causing a
likelihood of confusion and thereby invading what amounts to its comparatively
narrower range of protection.” Id. at 1676 (internal citations omitted). See also Palm
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Bay, 73 USPQ2d at 1693 (“Evidence of third-party use of similar marks on similar
goods is relevant to show that a mark is relatively weak and entitled to only a narrow
scope of protection.”).
“In determining the strength of a mark, we consider both its inherent strength
based on the nature of the mark itself and its commercial strength, based on the
marketplace recognition value of the mark.” Am. Lebanese Syrian Associated
Charities Inc. v. Child Health Research Institute, 101 USPQ2d at 1028 (citing Tea
Board of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006) and
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:83 (4th ed. 2011) (“The
first enquiry focuses on the inherent potential of the term at the time of its first use.
The second evaluates the actual customer recognition value of the mark at the time
registration is sought or at the time the mark is asserted in litigation to prevent
another’s use.”)).
Applicant contends that the “craft” portion of the cited registration is conceptually
weak in connection with kitchen products. In support thereof, Applicant has
submitted third-party registrations for marks incorporating the word CRAFT for
kitchen and meal preparation products. See Registration No. 52779398 (E ESS &
CRAFT), Registration No. 5020745 (COTTON CRAFT), Registration No. 4717479
(MASON CRAFT & MORE), Registration No. 4635137 (DECOR CRAFT INC.),
Registration No. 4306406 (ART CRAFT), Registration No. 4400873 (GURALLAR
ART CRAFT), Registration No. 2651681 (WINDLASS STEEL CRAFTS), Registration
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No. 2258607 (JONTI-CRAFT), and Registration No. 1532723 (CHEF CRAFT)
submitted with the October 22, 2018 Response to Office Action.
Active third-party registrations may be relevant to show that a mark or a portion
of a mark is descriptive. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116
USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, 115 USPQ2d at 1675-76; In
re Hartz Hotel Servs., Inc., 102 USPQ2d 1150, 1153-54 (TTAB 2012); In re Melville
Corp., 18 USPQ2d 1386, 1388 (TTAB 1991); In re Dayco Products-Eaglemotive Inc., 9
USPQ2d 1910, 1911-12 (TTAB 1988); Plus Prods. v. Star-Kist Foods, Inc., 220 USPQ
541, 544 (TTAB 1983). Properly used in this limited manner, third-party registrations
are similar to dictionaries showing how language is generally used. See, e.g.,
Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976);
In re J.M. Originals Inc., 6 USPQ2d 1393, 1394 (TTAB 1987); United Foods Inc. v.
J.R. Simplot Co., 4 USPQ2d 1172, 1174 (TTAB 1987). We acknowledge that the word
“craft” standing alone appears to be highly suggestive and that the disclaimer of
“kitchen” in each of the cited marks indicates that this term is inherently weak.15 But
significantly, none of the third-party registrations are comprised of both the terms
“kitchen” and “craft.” Indeed, the three cited registrations are the only registrations
in the record for kitchen and meal preparation products containing both terms.
In addition, the record is devoid of examples of actual use of marks comprised of
“kitchen” and “craft” for meal preparation products or goods related thereto, evidence

15 As noted above, all three cited registrations are owned by the same entity, and we are
focusing our analysis on Registration No. 3491878.
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relating to commercial weakness. Overall the evidence fails to show that “customers
have become so conditioned by a plethora of such similar marks that customers have
been educated to distinguish between different such marks on the bases of minute
distinctions.” Palm Bay, 73 USPQ2d at 1694. See also Jack Wolfskin, 116 USPQ2d at
1136; Juice Generation, 115 USPQ2d at 1675-76. Accordingly, this factor is neutral.
D. Other Established Facts
The thirteenth du Pont factor relates “to ‘any other established fact probative of
the effect of use.”’ du Pont, 177 USPQ at 567. Applicant argues that because the
USPTO permitted the following marks comprised of the term CRAFT paired with
another term transposed for identical or related goods and services to coexist on the
Principal Register, the Board should reverse the refusal to register:
Registration No. 4223130 for the mark BEERCRAFT and
Registration No. 5361811 for the mark CRAFT BEERS OF
CANADA;
Registration No. 5433846 for the mark CRAFTCOFFEE
and Registration No. 2051356 for the mark COFFEE
CRAFTSMEN;
Registration No. 4691079 for the mark BURGER CRAFT
and Registration No. 5368216 for the mark BLACK TAP
CRAFT BURGERS & BEER;
Registration No. 5471567 for the mark BARCRAFT for and
Registration No. 2954368 for the mark CRAFTBAR; and
Registration No. 4584528 for the mark RJS CRAFT
WINEMAKING and Registration No. 4839218 for the
mark MODERNCRAFT WINERY.
See October 22, 2018 Response to Office Action, pp. 118-134. Only a single pair of
these registered marks (BARCRAFT and CRAFTBAR) are comprised of the same two
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identical terms transposed. We are unable to determine from the face of the
registration certificates the context under which these third-party registrations were
permitted. Cf. In re Nett Designs, Inc., 263 F.3d 1339, 57 USPQ2d 1564, (Fed. Cir.
2001) (“Even if some prior registrations had some characteristics similar to Nett
Design’s application, the PTO’s allowance of such registrations does not bind the
Board or this court.”). For example, we do not know whether the prior registrant
entered into a consent agreement. The remaining pairs of registrations are for marks
that overall are too dissimilar. For these reasons, Applicant’s evidence is of limited
utility and we deem this du Pont factor neutral.
II. Conclusion – Balancing the du Pont Factors
Varying weights may be assigned to each du Pont factor depending on the
evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 26 USPQ2d at 1688
(“[T]he various evidentiary factors may play more or less weighty roles in any
particular determination”). Overall the marks bear strong similarities in appearance,
sound, meaning and commercial impression. This coupled with the in-part identical
goods and related, complementary items marketed in overlapping established, likely-
to-continue channels of trade leads us to find that confusion is likely between
Applicant’s applied-for mark and the mark in the cited registration. This is not a
situation, as Applicant urges, where the marks are so different as to obviate a
likelihood of confusion. See, e.g., Kellogg Co. v. Pack’em Enters. Inc., 951 F.2d 330, 21
USPQ2d 1142 (Fed. Cir. 1991). The remaining du Pont factors discussed above are
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neutral.
Decision: The Section 2(d) refusal is affirmed as to International Classes 8, 9 and
21.