Rolling Fatties LLCv.Rollin Fatties, LLC

Trademark Trial and Appeal Board

Jan 26, 2018

No. 91224847 (T.T.A.B. Jan. 26, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: January 26, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Rolling Fatties LLC
v.
Rollin Fatties, LLC
_____

Opposition No. 91224847
_____

Morris E. Turek, of YourTrademarkAttorney.com,
for Rolling Fatties LLC
Trevor Young, of Rollin Fatties, LLC,
pro se.
_____

Before Cataldo, Ritchie and Heasley,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Rollin Fatties, LLC, a Louisiana limited liability company (“Applicant”) seeks
registration on the Principal Register of the mark ROLLIN’ FATTIES (in standard
characters) for “providing of food and drink via a mobile truck; restaurant services”
in International Class 43.1 Registration has been opposed by Rolling Fatties, LLC

1 Application Serial No. 86410681was filed on September 30, 2014 based upon Applicant’s
claim of first use anywhere as of February 3, 2013 and use in commerce since at least as early
as October 31, 2013.
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(“Opposer”), a Maine limited liability company that claims that Applicant’s mark so
resembles its prior common law mark ROLLING FATTIES for the provisioning of
food and drink via a mobile truck as to be likely to cause confusion, to cause mistake,
or to deceive prospective purchasers of the parties’ services.2 15 U.S.C. §§ 1052(d),
1053. In its Answer, Applicant admitted that it filed the subject Application on
September 30, 2014 for its identified services, but otherwise denied the salient
allegations of likelihood of confusion.3
I. Standing
“Any person who believes that he would be damaged by the registration of a mark
upon the principal register…may, upon payment of the prescribed fee, file an
opposition in the Patent and Trademark Office, stating the grounds therefor….” 15
U.S.C. § 1063. In order to meet the standing requirement under the statute, an
opposer need only show that it has a real interest, i.e., a direct and personal stake, in
the outcome of the proceeding and a reasonable basis for its belief that it will be
damaged. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-28 (Fed. Cir.
1999). A belief in likely damage can be shown by establishing a direct commercial
interest. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed.
Cir. 2000). In this case, Opposer has established that it has a commercial interest in
using ROLLING FATTIES to provide food and beverage services via a mobile food

2 Opposer’s Notice of Opposition, 1 TTABVUE.
3 Applicant’s Answer ¶ 7, 4 TTABVUE 4. Applicant also pleaded several “affirmative
defenses,” which were not pursued at trial, and are therefore waived. Alcatraz Media, Inc. v.
Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1753 (TTAB 2013) aff’d 565 F. Appx. 900
(Fed. Cir. 2014); TBMP § 801.01 (June 2017).
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truck. As discussed below, Opposer is a competitor, and thus has standing to oppose
registration of Applicant’s mark. See Empresa Cubana Del Tabaco v. Gen. Cigar Co.,
753 F.3d 1270, 111 USPQ2d 1058, 1061-62 (Fed. Cir. 2014) (Cuban cigar
manufacturer had standing to seek cancellation of competitor’s trademark
registrations); Miller v. Miller, 105 USPQ2d 1615, 1618 (TTAB 2013) (competing law
firm had standing to oppose competitor’s application); Giersch v. Scripps Networks
Inc., 90 USPQ2d 1020, 1022 (TTAB 2009) (prior common law rights in confusingly
similar mark establish standing).
II. The Record
The record includes the pleadings, Applicant’s application file,4 and the
testimonial deposition, with exhibits, of Polly A. MacMichael, who, with her husband,
Rob MacMichael, founded and own Opposer.5 Applicant has not introduced any
evidence, nor has it filed a brief.
III. Likelihood of Confusion

A. Priority
“In an opposition founded on section 2(d), the opposer must establish its own prior
proprietary rights in the same or a confusingly similar designation in order to defeat
the application.” T.A.B. Sys. v. Pactel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879, 1881
(Fed. Cir. 1996). Section 2(d) challenges may be based either on ownership of a
registered mark (which is not implicated here) or prior use of an identical or similar

4 Trademark Rule 2.122(b), 37 CFR § 2.122(b).
5 Testimonial Deposition of Polly A. MacMichael p. 6:4-9, 15 TTABVUE 7.
Opposition No. 91224847
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mark. Wonderbread 5 v. Gilles, 115 USPQ2d 1296, 1302 n.8 (TTAB 2015); see also
Herbko Int’l., Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed.
Cir. 2002), cited in Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1658 (TTAB
2014).
Because Opposer has not pleaded ownership of any registrations, it must rely on
its common law use to establish priority. Id.; Giersch v. Scripps, 90 USPQ2d at 1023.
“[T]o the extent opposer wishes to rely on its common law rights, it must establish
priority with respect to such rights. That is, opposer must prove by a preponderance
of the evidence that its common law rights were acquired before any date upon which
applicant may rely.” Embarcadero Techs., Inc. v. RStudio, Inc., 105 USPQ2d 1825,
1834 (TTAB 2013) (citing Hydro-Dynamics Inc. v. George Putnam & Co. Inc., 811 F.2d
1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987) (The “decision as to priority is made in
accordance with the preponderance of the evidence”)).
Because Applicant has not introduced any evidence of its use of ROLLIN’
FATTIES, it cannot rely upon the dates of first use alleged in its Application.
Trademark Rule 2.122(b)(2) (“The allegation in an application for registration, or in
a registration, of a date of use is not evidence on behalf of the applicant or registrant;
a date of use of a mark must be established by competent evidence.”), quoted in
Central Garden & Pet Co. v. Doskocil Mfg. Co., Inc., 108 USPQ2d 1134, 1139 (TTAB
2013). The earliest date on which Applicant may rely for priority purposes is its filing
date of September 30, 2014,6 which is its constructive use date. Swiss Grill Ltd. v.

6 Applicant’s Answer ¶ 7, 4 TTABVUE 4.
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Wolf Steel Ltd., 115 USPQ2d 2001, 2011 (TTAB 2015). It is thus Opposer’s burden to
demonstrate that it owns a service mark that it used prior to Applicant’s constructive
use date. Exec. Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1180 (TTAB
2017) (citing Otto Roth & Co., Inc. v. Univ. Foods Corp., 640 F.2d 1317, 209 USPQ 40,
43 (CCPA 1981).
Oral testimony, if sufficiently probative, is normally satisfactory to establish
priority of use in a trademark proceeding. Daniel J. Quirk, Inc. v. Village Car Co.,
120 USPQ2d 1146, 1151 (TTAB 2016) (quoting Powermatics, Inc. v. Globe Roofing
Prods. Co., 341 F.2d 127, 144 USPQ 430, 432 (CCPA 1965)). The testimony of a single
witness with personal knowledge of the facts may be sufficient to prove first use if it
is clear, convincing, consistent, uncontradicted, and sufficiently circumstantial to
convince the Board of its probative value. See Bass Pro Trademarks, LLC v.
Sportsman’s Warehouse, Inc., 89 USPQ2d 1844, 1856 (TTAB 2008). Ms. MacMichael
is such a witness. Asked to describe her responsibilities with Opposer, she answered:
A. Like what I do? Prep cook, cook, serve and
bar-tend. I wash dishes, clean. I do all the
bookkeeping, marketing, advertising. Rob and I do the
renovating for the building, the landscaping.
We both drive for the business. I schedule
employees, handle all the communication, payroll, booking
events, inventory, training employees, customer service,
ordering food and beverages. I take care of all the
blogging for our website, our social media presence. I
update and maintain our website, pay our taxes, do all our
business filings, and we both control our business
development.7

7 MacMichael dep. pp. 6:18-7:4, 15 TTABVUE 7-8.
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“I’m familiar with all of the operations of Rolling Fatties,” she concluded.8
According to Ms. MacMichael’s testimony, Opposer has provided food truck
services, serving food and beverages, under the ROLLING FATTIES mark since
October 11, 2013, when Opposer opened for business.9 Opposer’s Facebook page
showed its food truck, displaying its mark:
10
Opposer’s website displaying the mark was also active and publicly accessible on
October 11, 2013.11 A flyer accompanying its opening also displayed the ROLLING
FATTIES logo at that time:

8 MacMichael dep. p. 7:8-9, 15 TTABVUE 8.
9 MacMichael dep. pp. 10: 4-24, 12:14-18, 22:6-7, 15 TTABVUE 11, 13, 23.
10 MacMichael dep. pp. 24:18-25:18, 15 TTABVUE 25-26, 92.
11 MacMichael dep. p. 18:7-9, 15 TTABVUE 19.
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12
“We put this flyer up all over town at businesses,” Ms. MacMichael testified. “We
also posted it in the window of our food truck. I posted it on-line and on our website.”13
From their rolling food truck, they serve Maine-made beverages and hand-made
“big fat burritos,” which Ms. MacMichael and her husband call “FATTIES” ―hence
the ROLLING FATTIES mark, which is suggestive of their services.14 A local
newspaper covered their opening under the headline “Rolling Fatties ~ burritos on
the go.”15 On its opening day, October 11, 2013, Opposer made sales of food and
beverages.16 A receipt and a sales summary were made of record, evidencing
Opposer’s sales of food and drink under its mark, commencing on that day.17
Opposer’s business primarily operates within the state of Maine, although they have
travelled as far as Vermont.18 Since commencing use, Opposer’s business has
continued to display the mark ROLLING FATTIES, on flyers, for example:

12 MacMichael dep. pp. 23:4-11, 24:11-16, 15 TTABVUE 24-25, 90.
13 Id. at 23:14-16, 15 TTABVUE 24.
14 MacMichael dep. pp. 9:6-25, 11:11-23, 15 TTABVUE 10, 12.
15 MacMichael dep. pp. 33:3-34:25, 15 TTABVUE 34-35, 106.
16 MacMichael dep. p. 24:5-10, 15 TTABVUE 25.
17 MacMichael dep. pp. 36:11-39:1, 15 TTABVUE 37-40, 110, 112-113.
18 MacMichael dep. p. 12:19-21, 15 TTABVUE 13.
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19
The public has never known or referred to Opposer’s business by any name other than
ROLLING FATTIES, Ms. MacMichael testified.20
On the basis of Ms. MacMichael’s testimony and the exhibits, we find that Opposer
has established priority in the mark ROLLING FATTIES for providing food and drink
via a mobile truck. Her testimony is based on personal knowledge, is internally
consistent, and is corroborated by documentary evidence. See Kohler Co. v. Baldwin
Hardware Corp., 82 USPQ2d 1100, 1108 (TTAB 2007). Opposer’s testimony is thus
clear and credible: its use commenced as early as October 11, 2013. It was
unnecessary for Opposer to differentiate between services provided to in-state and
out-of-state clients, as either would establish priority―even wholly intrastate
services. See Quirk v. Village Car, 120 USPQ2d at 1150 n. 19 (“We note that a party
may rely on use that is strictly intrastate to claim priority in a Board proceeding.”)
(citing First Niagara Ins. Brokers Inc. v. First Niagara Fin. Grp. Inc., 476 F.3d 867,
81 USPQ2d 1375 (Fed. Cir. 2007)).
Opposer’s testimony is uncontradicted by Applicant. See Quirk v. Village Car, 120
USPQ2d at 1150 n. 20 (petitioner introduced no evidence to cast doubt on accuracy of
respondent’s evidence of prior use). Applicant’s constructive use date of September

19 MacMichael dep. pp. 53:8-54:21, 15 TTABVUE 54-55, 135.
20 MacMichael dep. pp. 11:24-12:2, 15 TTABVUE 12-13.
Opposition No. 91224847
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30, 2014 falls almost a year after Opposer’s proven prior use, commencing on October
11, 2013. Hence, Opposer has established priority.
B. The DuPont Factors
We base our determination of likelihood of confusion under Section 2(d) on an
analysis of all of the probative facts in evidence that are relevant to the factors
enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563,
567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575
U.S. __, 135 S.Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In the course
of applying the DuPont factors, we bear in mind the fundamental purposes
underlying Section 2(d), which are to prevent consumer confusion as to commercial
sources and relationships, and to protect mark owners from damage caused by
registration of confusingly similar marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc.,
469 U.S. 189, 224 USPQ 327, 331 (1985); Qualitex Co. v. Jacobson Prods. Co., 514
U.S. 159, 34 USPQ2d 1161, 1163 (1995); DuPont, 177 USPQ at 566.
We have considered each DuPont factor that is relevant, 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 DuPont factor depending on the
evidence presented. See Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d
Opposition No. 91224847
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1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more
or less weighty roles in any particular determination”). Two key considerations are
the similarities between the marks and the similarities between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24, 29 (CCPA 1976); Primrose Retirement Communities, LLC v. Edward Rose
Senior Living, LLC, 122 USPQ2d 1030, 1032 (TTAB 2016).
1. Similarity of the Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Opposer’s marks as compared in their entireties, taking into account
their appearance, sound, connotation and commercial impression. DuPont, 177 USPQ
at 567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005).
Opposer contends that the parties’ marks, ROLLING FATTIES and ROLLIN’
FATTIES, are virtually identical.21 We agree. The only difference between the two
word marks is Applicant’s substitution of an apostrophe for the “G” in ROLLING.
Substituting an apostrophe for a letter effects only a slight difference in marks’
appearance and sound, and does not tend to avert a likelihood of confusion. See, e.g.,
Park ‘N Fly v. Dollar Park and Fly, 224 USPQ at 329 (District court found “Park and

21 Opposer’s brief p. 9, 18 TTABVUE 10.
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Fly” confusingly similar to “Park ‘N Fly”); In re Strathmore Products, Inc., 171 USPQ
766, 767 (TTAB 1971) (GLISTEN confusingly similar to GLISS’N) cited in 4
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:23 (5th ed. 2018). To the
extent any minor difference in pronunciation exists, consumers who hear the parties’
marks spoken by others are not likely to even notice the difference. In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012). Slight differences in the
sound of similar marks do not avoid a likelihood of confusion. In re Energy Telecomms.
& Elec. Ass’n, 222 USPQ 350, 352 (TTAB 1983). Moreover, the slight difference would
have no effect on the marks’ connotation and commercial impression, which are
identical.
In sight, sound, connotation, and commercial impression, the parties’ respective
marks, taken in their entireties, are virtually identical. Thus, the first DuPont factor
weighs heavily in favor of finding a likelihood of confusion.
2. Similarity and Relatedness of the Services

Under the second DuPont factor, we consider the degree to which the parties’
identified services are related. DuPont, 177 USPQ at 567. “This factor considers
whether ‘the consuming public may perceive [the respective goods and services of the
parties] as related enough to cause confusion about the source or origin of the goods
and services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed.
Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62
USPQ2d 1001, 1004 (Fed. Cir. 2002)).
Opposition No. 91224847
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It is apparent that the parties’ services are identical in part. The Application
recites “Providing of food and drink via a mobile truck; restaurant services.”
According to Opposer’s witness, it serves both food and drink from its mobile food
truck: “[W]e serve primarily locally-sourced food that we prepare. We hand-make
all of our tortillas. We also serve Maine-made beverages….”22 When asked how
Applicant’s services compared to Opposer’s, she answered “They are the same
services.”23 This identity of food truck services, standing alone, militates in favor of
finding a likelihood of confusion as to all of Applicant’s services in International Class
43. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Group, 648 F.2d 1335, 209 USPQ 986,
988 (CCPA 1981) (A likelihood of confusion may be found with respect to a particular
class based on any item within the identification of goods or services for that class);
In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015), aff’d 866 F.3d 1315,
123 USPQ2d 1744 (Fed. Cir. 2016).
In addition, though, we find that Applicant’s identified restaurant services are
related to Opposer’s services. “[I]t is sufficient for such purposes if the services are
related in some manner or if the circumstances surrounding marketing of these
services are such that they could give rise to the mistaken belief that they originate
from or are in some way associated with the same source.” In re USA Warriors Ice
Hockey Program, Inc., 122 USPQ2d 1790, 1795 (TTAB 2017). In this case, consumers
could easily be led to infer that restaurant and food truck services bearing virtually

22 MacMichael dep. p. 9:8-10, 15 TTABVUE 10.
23 MacMichael dep. p. 15:7, 15 TTABVUE 16.
Opposition No. 91224847
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identical marks emanate from the same source. Both purvey food and drink―one from
a brick-and-mortar site, the other from a mobile source―and a single entity could
easily offer its wares by both means. Indeed, Opposer’s owners, a husband-and-wife
team, entered the food truck business first because it was less expensive than
operating a restaurant; less than two years later, once they had established their food
truck business under the ROLLING FATTIES mark, they opened a restaurant under
the same mark.24
“Where, as in this case, the applicant’s mark is virtually identical to the
[opposer’s] mark, there need only be a viable relationship between the goods [or
services] to find that there is a likelihood of confusion. See In re Shell Oil Co., 992
F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (‘even when the goods or services
are not competitive or intrinsically related, the use of identical marks can lead to the
assumption that there is a common source’)….” In re Thor Tech, Inc., 90 USPQ2d
1634, 1636 (TTAB 2009). Here, the parties’ services, offered under virtually identical
marks, are identical in part and otherwise closely related.
Accordingly, the second DuPont factor also weighs heavily in favor of finding a
likelihood of confusion.
3. Channels of Trade and Classes of Customers
Under the third DuPont factor, we consider the similarity or dissimilarity of
Applicant’s and Opposer’s established, likely-to-continue channels of trade, and the
classes of customers to whom their services are offered. DuPont, 177 USPQ at 567.

24 MacMichael dep. pp. 9:7-14, 10:4-8, 11:2-17, 12:11-13, 47:8, 15 TTABVUE 10-13, 48.
Opposition No. 91224847
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Because the parties’ services are legally identical in part, with no limitations in
the Application, they are presumed to travel in the same channels of trade, via food
trucks, as testified by Ms. MacMichaels and as identified in the application, to the
same classes of consumers, ordinary consumers of food and drink. See In re Viterra
Inc., 101 USPQ2d at 1908 (Fed. Cir. 2012) (citing Hewlett-Packard, 62 USPQ2d at
1005); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d
1030, 1033 (TTAB 2016); American Lebanese Syrian Associated Charities Inc. v. Child
Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011). Opposer offers
“family friendly” services to what it calls “hungry people,”25 the same sort of
customers to whom Applicant would offer its services.
Hence, the channels of trade through which the parties’ services would be offered,
and the classes of customers to whom they would be offered, weigh in favor of finding
a likelihood of confusion under the third DuPont factor.
IV. Conclusion
Taking the record evidence as a whole, including the portions of the record
evidence we have not expressly mentioned or discussed, we find that the parties’
marks are highly similar, and that they offer identical services in part, via the same
channels of trade to the same classes of consumers. All in all, we find by a
preponderance of the evidence that Applicant’s mark is likely to cause confusion with
Opposer’s pleaded mark.

25 Opposer’s brief p. 12, 18 TTABVUE 13, MacMichael dep. p. 15:8-14.
Opposition No. 91224847
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Decision: The opposition to registration of Applicant’s mark ROLLIN’ FATTIES
is sustained, and registration to Application No. 86410681 is refused.