Rossi Group Holdings, Inc.

Trademark Trial and Appeal Board

Sep 20, 2011

No. 77830691 (T.T.A.B. Sep. 20, 2011)

Mailed: September 20, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
________

In re Rossi Group Holdings, Inc.
________

Serial No. 77830691
Filed: September 21, 2009
_______

Keesonga Gore of Minott Gore PA for applicant.

David S. Miller, Senior Attorney, Law Office 105, Thomas G.
Howell, Managing Attorney.
_______

Before Quinn, Mermelstein, and Wolfson, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:
Applicant seeks registration of the mark ANGELIQUE
EURO CAFE (in standard characters) for “Restaurant and bar
services; Restaurant services,” in International Class 43.1
The examining attorney has issued a final refusal to
register the subject application in view of the prior
registration of EURO CAFÉ for “restaurant services” (in
typed form2) in International Class 42,3 upon his

1 Based on an allegation of first use and use in commerce as of March 1,
2008. In response to the examining attorney’s requirement, applicant
disclaimed the exclusive right to use “EURO CAFE” apart from the mark
as shown.
2 Although the drawing appears on the registration certificate and in
the registration file in plain capital letters, the USPTO database
characterizes this mark as a stylized mark. The file history of this
THIS DECISION IS NOT A
PRECEDENT OF THE TTAB
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determination that registration of applicant’s mark would
be likely to lead to confusion with the registered mark.
Trademark Act § 2(d); 15 U.S.C. § 1052(d). Applicant filed
a timely appeal, and applicant and the examining attorney
filed briefs.
We affirm.
I. Preliminary Matters
During examination, applicant filed a response and
request for reconsideration (respectively) to the examining
attorney’s first and final office actions. Applicant
submitted no evidence in connection with either submission,
choosing instead to rely on arguments based on the law and
its interpretation of the evidence the examining attorney
had made of record. Nonetheless, applicant attached to its
brief a number of pages of evidence which were not part of
the record below. The examining attorney has objected to
consideration of this evidence. Ex. Att. Br. at 12.
Applicant has not responded to the objection (and did not
file a reply brief on the merits).
“The record in the application should be complete

registration makes clear that it is what was then called a “typed”
mark, and we will consider it as such. See Trademark Rule 2.52(a).
3 Registration No. 2429882, issued February 20, 2001, based on an
application alleging first use and use in commerce as of June 1, 1997.
Filings under Trademark Act §§ 8, 9, and 15, accepted, granted, and
acknowledged. Registrant has disclaimed the exclusive right to use
“CAFE” apart from the mark as shown.
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prior to the filing of an appeal. The Trademark Trial and
Appeal Board will ordinarily not consider additional
evidence filed with the Board by the appellant or by the
examiner after the appeal is filed.” Trademark Rule
2.142(d). Applicant’s dilatory evidence was clearly not
submitted prior to appeal, nor did applicant request a
remand after appeal to submit this evidence to the
examining attorney for examination in the first instance.
See id. The examining attorney’s objection is therefore
sustained, and we will not consider the evidence attached
to applicant’s brief. See generally TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE § 1203.02(e) (3d ed. 2011) (untimely
evidence attached to brief will generally not be
considered).
In addition to the untimely submission of evidence, we
are troubled by applicant’s statement, following its
argument that the registered mark “is descriptive, or at
best highly suggestive”:
Although such evidence may not be submitted in
support of Applicant’s point, a Google search of
the Registered Mark (January 15, 2011) shows
several results for EURO CAFÉ unrelated to the
Registrant’s business, including many results of
EUROPEAN CAFÉ.

App. Br. at 10.
While applicant did not attempt to submit the
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referenced searches (which would have been untimely if
attached to applicant’s brief), applicant’s discussion of
evidence which is not of record – and which applicant
apparently believed to be inadmissible4 – was improper.
Although evidentiary standards in ex parte appeals are less
stringent than those applicable to Board inter partes
disputes, our decision must still be based on admissible
evidence which appears in the record. It is difficult to
escape the conclusion that applicant’s discussion of
evidence which is not of record (and which applicant
believes to be inadmissible) is an intentional effort to
improperly influence our decision. Accordingly, we will
consider neither this “evidence” nor the argument in
applicant’s brief which it purportedly supports, namely
applicant’s argument that opposer’s mark is descriptive,
App. Br. at 9-10.
II. Discussion
Our determination under Trademark Act § 2(d) is based

4 We have not seen these purported materials, and so we make no
determination whether they would have been inadmissible had they been
introduced at a proper stage in this proceeding, but it is enough here
that applicant thought them to be. Parties before the Board should
only submit such evidence as they believe in good faith to be
admissible. Absent such a belief, the evidence should not be
submitted, and certainly should not be discussed.
Even if the evidence were admissible, but not in the record, it would
have been improper to discuss it. Our decision must be based on the
record. “Statements in a brief cannot take the place of evidence.” In
re Simulations Publ’ns, Inc., 521 F.2d 797, 187 USPQ 147, 148 (CCPA
1975).
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on an analysis of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
confusion. See In re E.I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973); see also Palm Bay
Imp., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201 (Fed. Cir. 2003); In re Dixie Rests. Inc., 105 F.3d
1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In considering the
evidence of record on these factors, we keep in mind that
“[t]he fundamental inquiry mandated by Section 2(d) goes to
the cumulative effect of differences in the essential
characteristics of the goods [or services] and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); In re
Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
A. The similarity or dissimilarity and nature of the
goods or services; Channels of trade; Classes of
purchasers

Applicant’s services are identified as “restaurant and
bar services; restaurant services,” in International Class
43. The cited registrant’s services are identified as
“restaurant services.” As is obvious, the cited
registrant’s services are identical to one of applicant’s
services and very closely related to the other. Applicant
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makes no argument to the contrary, essentially ignoring
this du Pont factor in its brief.
The fact that the services are identical (at least in
part) means that we must also assume that the relevant
purchasers and channels of trade are likewise identical.
Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003)
(“Given the in-part identical and in-part related nature of
the parties’ goods, and the lack of any restrictions in the
identifications thereof as to trade channels and
purchasers, these clothing items could be offered and sold
to the same classes of purchasers through the same channels
of trade”); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532
(TTAB 1994) (“Because the goods are legally identical, they
must be presumed to travel in the same channels of trade,
and be sold to the same class of purchasers”).
These factors strongly support the examining
attorney’s finding of a likelihood of confusion.
B. The similarity or dissimilarity of the marks in
their entireties

In a likelihood of confusion analysis, we compare the
marks for similarities and dissimilarities in appearance,
sound, connotation and commercial impression. Palm Bay, 73
USPQ2d at 1692. “[T]he test is not whether the marks can
be distinguished when subjected to a side-by-side
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comparison, but rather whether the marks are sufficiently
similar in terms of their overall commercial impression so
that confusion as to the source of the goods offered under
the respective marks is likely to result.” H.D. Lee Co. v.
Maidenform Inc., 87 USPQ2d 1715, 1727 (TTAB 2008). In
considering the marks at issue in this case, we keep in
mind the well-established principle that “when marks would
appear on identical goods, as they do in part here, the
degree of similarity between the marks necessary to support
a finding of likelihood of confusion declines.” Hunt
Control Sys. Inc. v. Koninklijke Philips Elec. N.V., 98
USPQ2d 1558 (TTAB 2011) (citing Century 21 Real Estate v.
Century Life, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir.
1992)).
Applicant’s mark is ANGELIQUE EURO CAFE, while the
mark in the cited prior registration is EURO CAFÉ.
Applicant’s mark is essentially identical to the prior
registrant’s, with the addition of the initial term
ANGELIQUE.5 In determining likelihood of confusion, we must
consider the relevant marks in their entireties, without

5 Additionally, we point out that the spelling of “CAFE" in applicant’s
mark does not include the accent present in the cited mark (“CAFÉ”).
This difference is very slight, and is unlikely to even be noticed by
most potential customers. Neither applicant nor the examining attorney
even note this distinction, and in fact, applicant incorrectly refers
to its own mark as ANGELIQUE EURO CAFÉ (i.e., with the accent)
throughout its brief. We conclude that the presence or absence of the
accent in “CAFÉ" is inconsequential in consideration of these marks.
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ignoring any part of them. Nonetheless, applicant contends
that ANGELIQUE is the dominant portion of its mark, and
that the marks are different in appearance and commercial
impression.
Visually, the marks are clearly similar to the extent
they feature “EURO CAFE.” And applicant’s mark clearly
differs in that it features a different word, and the first
word at that. Similarity in the first words of marks has
often been noted as a factor supporting a finding of
likelihood of confusion. See e.g., Presto Prods., Inc. v.
Nice-Pak Prods. Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it
is often the first part of a mark which is most likely to
be impressed upon the mind of a purchaser and
remembered.”). See also Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692
(“The presence of this strong distinctive term as the first
word in both parties’ marks renders the marks
similar....”). But it would be both an oversimplification
of the rule and a logical fallacy to suggest – as applicant
does – that the converse is necessarily true, i.e., that if
the first words of two marks are different, the marks must
be considered too dissimilar to support a finding of
likelihood of confusion. As is usually the case, it
depends on the particular marks at issue when considered in
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their entireties and in the context of the other relevant
du Pont factors.
As for the meaning and commercial impression of the
marks, we find that both clearly suggest a casual eating
establishment or bar serving European food and drink. This
is consistent with the examining attorney’s argument and
evidence provided upon requiring applicant to disclaim EURO
CAFE.6 On the other hand, we take notice of the fact that
the term ANGELIQUE in applicant’s mark is a female given
name, and would be immediately recognized as such in this
context.7 The use of a name in connection with an eating
establishment, as in applicant’s mark, implies the
ownership, management, or other involvement of someone
named “ANGELIQUE” with the “EURO CAFE.”
Thus, although ANGELIQUE does not have a specific
meaning with respect to restaurant or bar services, it does
little to change the meaning or commercial impression of
the mark in the cited registration. The term does not in
any way modify the meaning of “EURO CAFE” as it is used in

6 “The term ‘Euro’ is an adjective that means ‘European.’ A ‘café’ is
‘a small restaurant selling light meals and drinks’ or ‘a bar or
nightclub.’” First Office Action (Dec. 18, 2009) (citing dictionary
definitions made of record).
7 See, e.g., Linda Rosenkrantz & Pamela Redmond Satran, BABY NAMES NOW,
17-18 (2001); Bruce Lansky, BABY NAMES AROUND THE WORLD, 70 (1999); Dorothy
Astoria, THE NAME BOOK, 31-32 (1997); Lisa Shaw, THE EVERYTHING BABY NAMES
BOOK, 190 (1997). The Board may take judicial notice of such reference
works. In re P.J. Fitzpatrick Inc., 95 USPQ2d 1412, 1413 n.1 (TTAB
2010).
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applicant’s mark; it simply adds a name to the prior mark,
in a sense personifying the registrant’s EURO CAFÉ,
literally and figuratively taking possession of it.8 In
other words, to someone familiar with the prior
registrant’s business, applicant’s mark would likely be
seen as a branch of the registrant’s business or the prior
registrant itself doing business under a variation of its
mark.
Applicant’s best argument is that the prior
registrant’s mark is weak. We accept that EURO CAFE as
used in applicant’s mark is descriptive and that EURO CAFÉ
as used in the cited registration is suggestive.9 But
labeling marks as “weak” or “strong” is not always useful;
the ultimate question is whether or not confusion is
likely. King Candy Co. v. Eunice King's Kitchen, Inc., 496
F.2d 1400, 182 USPQ 108, 109 (CCPA 1974) (“Confusion is
confusion. The likelihood thereof is to be avoided, as
much between ‘weak’ marks as between ‘strong’ marks, or as
between a ‘weak’ and a ‘strong’ mark.”).

8 We note that the mark is not in the possessive form (ANGELIQUE’S) in
the mark, although this makes little difference.
9 As noted above, applicant also argues that the cited registration is
descriptive. As applicant apparently recognizes, this argument cannot
be heard in an ex parte proceeding. To the contrary, the cited
Principal registration must be presumed valid, and therefore not
descriptive. Trademark Act § 7(b). In this particular case, the
registration is more than five years old so it cannot be attacked on
descriptiveness grounds even in a cancellation proceeding. Trademark
Act § 14.
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Here, applicant has taken the entirety of the prior
registrant’s trademark, adding to it a personal name. In
this case, we find that while the resulting marks are
clearly not identical, they are substantially similar in
their appearance, sound, meaning, and commercial
impression. This factor supports a finding of likelihood
of confusion.
III. Conclusion
We have carefully considered the entire record and all
of the arguments and evidence properly submitted by
applicant and the examining attorney (including any which
are not specifically discussed in this opinion).
We conclude, in light of the identical services at
issue, the similar marks, and the identical customers and
channels of trade, that use of applicant’s mark on or in
connection with the identified services is likely to cause
confusion with the mark in the cited prior registration.

Decision: The refusal to register under Trademark Act
§ 2(d) is accordingly affirmed.