Sri Sai Balaji

Trademark Trial and Appeal Board

Jun 18, 2019

87355546 (T.T.A.B. Jun. 18, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 18, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Sri Sai Balaji
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Serial No. 87355546
_____

Philip Thomas Horton of Horton Law, PLLC,
for Sri Sai Balaji.
Michael FitzSimons, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.
_____

Before Wolfson, Larkin, and Hudis,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Sri Sai Balaji (“Applicant”) seeks registration on the Principal Register of the
mark shown below

for “catering services; restaurant services,” in International Class 43.1

1 Application Serial No. 87355546 was filed on March 2, 2017 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claimed use of the mark and use of
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The Trademark Examining Attorney (“Examining Attorney”) has refused
registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s mark so resembles the registered mark
shown below

for “restaurant services, including sit-down service of food and take-out restaurant
services,” in International Class 43,2 as to be likely, when used in connection with the
services identified in the application, to cause confusion, to cause mistake, or to
deceive.
After the Examining Attorney made the refusal final, Applicant appealed and
requested reconsideration, 4 TTABVUE,3 which was denied. 5 TTABVUE. Applicant
and the Examining Attorney have filed briefs. We affirm the refusal to register.

the mark in commerce since as least as early as March 2016. Applicant describes his mark
as “consist[ing] of the letters BNG. The letters are presented diagonally and are connected to
each other. The letters ‘B’ and ‘G’ are red and the letter ‘N’ is yellow. To the right of the letters
are the words ‘BIRYANI-N-GRILL’ in a stylized black font.” The colors red, yellow, and black
are claimed as a feature of the mark, and Applicant has disclaimed the exclusive right to use
BIRYANI-N-GRILL apart from the mark as shown.
2 Registration No. 4591302 issued on August 26, 2014. The registrant (“Registrant”) described
its mark as “consist[ing] of the letters ‘BNG’ in a stylized form with a line beneath the letters.”
3 Citations to the briefs in this opinion refer to TTABVUE, the Board’s online docketing
system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page number(s) of the docket entry where the cited materials
appear.
Serial No. 87355546
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I. Record on Appeal
The record on appeal contains the following:
1. Dictionary definitions of the words “biryani” and “grill,” and the conjunction
“‘n’,” made of record by the Examining Attorney;4
2. Internet webpages and third-party registrations of companies that provide
restaurant services, catering services, and sit-down and take out services,
made of record by the Examining Attorney;5
3. A page from the USPTO’s Trademark Electronic Search System (“TESS”)
listing various registrations of marks containing the letters “BNG,” made
of record by Applicant;6
4. Wikipedia entries regarding salads, biryani dishes, and bagels, made of
record by Applicant;7 and
5. Pages from Registrant’s website at bagelsngreens.com and from Applicant’s
website at biryaningrill.com, made of record by Applicant.8

4 May 31, 2017 Office Action at 5-7 (MERRIAM-WEBSTER DICTIONARY and OXFORD LIVING
DICTIONARIES), 8-9 (MERRIAM-WEBSTER DICTIONARY and OXFORD LIVING DICTIONARIES),
and 10-11 (OXFORD LIVING DICTIONARIES and THE AMERICAN HERITAGE DICTIONARY). All
citations to the record in this opinion are to pages in the Trademark Search & Document
Retrieval (“TSDR”) database of the United States Patent and Trademark Office (“USPTO”).
5 Id. at TSDR 12-29; February 20, 2018 Final Office Action at TSDR 2-35.
6 November 30, 2017 Response to Office Action at TSDR 13.
7 August 2, 2018 Request for Reconsideration at TSDR 12-37.
8 Id. at TSDR 38-55.
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II. Analysis of Likelihood of Confusion Refusal
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under § 2(d) is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). We consider each DuPont factor for which there is
evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d
1160, 1162-63 (Fed. Cir. 2019).
Two key factors in every § 2(d) case are the similarity or dissimilarity of the
marks, and the goods or services, because the “fundamental inquiry mandated by
§ 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). Both Applicant
and the Examining Attorney address these key factors, 7 TTABVUE 8-15; 9
TTABVUE 5-12, although Applicant states that it “must concede the similarity of the
goods or services as recited in the Applicant’s applied-for trademark as well as the
registered trademark.” 7 TTABVUE 14. Applicant argues that “the remaining factors
establish that even despite this similarity confusion is not likely . . . .” Id. at 15. In
addition to the first DuPont factor, Applicant lists as relevant the third DuPont factor,
the similarity or dissimilarity of the pertinent channels of trade; the fourth DuPont
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factor, the conditions under which and buyers to whom sales are made; the sixth
DuPont factor, the number and nature of similar marks in use on similar services;
and the eighth DuPont factor, the length of time during and conditions under which
there has been concurrent use without evidence of actual confusion. Id. at 6-7 (citing
DuPont, 177 USPQ at 567).
A. The Similarity or Dissimilarity of the Services and Channels of Trade
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration,’” In re Detroit
Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting du
Pont, 177 USPQ at 567), while the third DuPont factor “considers ‘[t]he similarity or
dissimilarity of established, likely-to-continue trade channels.” Id. at 1052 (quoting
DuPont, 177 USPQ at 567). Our analysis under these factors is based on the
identifications of services in the application and the cited registration. Id.; Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-
63 (Fed. Cir. 2014). There are two Class 43 services identified in the application, but
“likelihood of confusion must be found as to the entire class of services identified if
there is likely to be confusion as to any service that comes within the recitation of
services in that class.” Primrose Retirement Cmtys., LLC v. Edward Rose Senior
Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
The services identified in the application are “catering services” and “restaurant
services,” while the services identified in the cited registration are “restaurant
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services, including sit-down service of food and take-out restaurant services.” As
noted above, Applicant concedes the similarity of the services, but they are identical,
not just similar, because both identifications cover “restaurant services.”9 Because
those services are identical, “there is no need for us to further consider the relatedness
of the [other services],” In re FabFitFun, Inc., 127 USPQ2d 1670 (TTAB 2018), and
thus we need not address the Examining Attorney’s evidence of the relatedness of
Applicant’s catering services to Registrant’s restaurant services. The second DuPont
factor supports a finding of a likelihood of confusion.
“Because the services described in the application and the cited registration are
identical, we presume that the channels of trade and classes of purchasers are the
same.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1745 (TTAB 2018) (citing In
re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)). Accordingly,
the third DuPont factor also supports a finding of a likelihood of confusion.
We turn now to the first DuPont factor, to which Applicant devotes the bulk of his
brief.

9 The cited registration covers “restaurant services, including sit-down service of food and
take-out restaurant services.” Section 1402.03(a) of the TRADEMARK MANUAL OF EXAMINING
PROCEDURE (“TMEP”) (Oct. 2018) “instructs examining attorneys that the identification of
goods or services in an application for registration ‘should state common names for goods and
services, be as complete and specific as possible, and avoid indefinite words and phrases.’” In
re Solid State Design Inc., 125 USPQ2d 1409, 1413-14 (TTAB 2018) (quoting § 1402.03(a)).
The word “including” that appears in the identification of services in the cited registration is
listed in § 1402.03(a) as an example of an indefinite word that does not limit the scope of the
wording preceding it. In other words, we must accord the identification its full scope, Solid
State Design, 125 USPQ2d at 1414, and it covers all other forms of “restaurant services” in
addition to “sit-down service of food and take-out restaurant services.” Applicant’s
unrestricted “restaurant services” identification also encompasses those forms of restaurant
services. The two “restaurant services” identifications are thus identical.
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B. The Similarity or Dissimilarity of the Marks
The first DuPont factor is “‘the similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and commercial impression.’” Palm
Bay Imps., Inc. v. Veuve Cliquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014) (citing In re
White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988)). “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, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(quotation omitted). As Applicant acknowledges, 7 TTABVUE 11, “[t]he proper
perspective on which the analysis must focus is on the recollection of the average
customer, who retains a general rather than specific impression of marks.” In re
i.am.symbolic, 127 USPQ2d 1627, 1630 (TTAB 2018) (citations omitted). “Because
the services at issue are ‘restaurant . . . services,’ the average customer is an ordinary
consumer.” Inn at St. John’s, 126 USPQ2d at 1747.
“‘[S]imilarity is not a binary factor but is a matter of degree.’” In re St. Helena
Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting In re Coors
Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1062 (Fed. Cir. 2003)). Because the
involved restaurant services are identical, “the degree of similarity between the
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marks necessary to support a determination that confusion is likely declines.”
i.am.symbolic, 127 USPQ2d at 1630 (citing Bridgestone Ams. Tire Operations, LLC v.
Fed. Corp., 673 F.3d. 1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Viterra, 101
USPQ2d at 1908; In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed.
Cir. 2010); and Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23
USPQ2d 1698, 1701 (Fed. Cir. 1992)).
For ease of reference in following our summary of the arguments of Applicant and
the Examining Attorney regarding the similarity or dissimilarity of the marks, and
our analysis of this factor, we again reproduce the involved marks together:10

1. Applicant’s Arguments
Applicant acknowledges “that both marks use the acronym, initials, or letters
‘BNG,’” but argues that this “is the last, and only, commonality with the two
trademarks.” 7 TTABVUE 9. Applicant claims that his mark “has a different
appearance, sound, and meaning than Registrant’s.” Id. Applicant focuses primarily
on the claimed differences in the meaning of the marks.

10 We reiterate that the display of the marks together does not reflect the permitted mode of
their comparison.
Serial No. 87355546
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Applicant argues that “the trademarks at issue share the same weak, overlapping
term(s), namely BNG,” id. at 14, and that “since BNG is weak, consumers have no
immediate knowledge of what BNG stands for.” Id. According to Applicant,
“consumers will use other evidence to relate what BNG stands for,” id., and that “[f]or
Applicant’s mark, consumers will see the entire trademark and believe BNG stands
for Biryani-N-Grill,” id., which causes Applicant’s mark to “convey[ ] to consumers
the types of goods and services they can expect, ie. biryani dishes with grilled
options,” id.,11 and to “create[ ] a commercial impression of a catering service or eatery
that mixes grilled foods with biryani-type dishes. Id. at 11.
Regarding the cited mark BNG and design, Applicant argues that consumers
seeing the mark in commerce “will have [no] idea of what BNG stands for until they
visit Registrant’s business. Then they will instantly know that Registrant’s BNG
stands for Bagels n Greens.” Id. Applicant argues that Registrant’s “specimen,
webpage, and owners [sic] name show that the Registrant is using BNG to mean
Bagels n Greens.” Id.
As to appearance, Applicant argues that his mark’s “appearance is longer, has
different colors, and a different design,” id., and that his mark “conveys colors and
the words ‘BIRYANI-N-GRILL,’ while Registrant’s trademark has no claimed color

11 The Examining Attorney made of record a definition of the word “biryani” as “an Indian
dish of meat, fish, or vegetables cooked with rice flavored especially with saffron or turmeric,”
May 31, 2017 Office Action at 6 (MERRIAM-WEBSTER DICTIONARY), and Applicant disclaimed
the right to exclusive use of the phrase “Biryani-N-Grill.”
Serial No. 87355546
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and gives consumers no hints as to what BNG could mean.” Id. Applicant does not
address the similarity or dissimilar of the marks in sound.
2. The Examining Attorney’s Arguments
The Examining Attorney argues “that consumers are generally more inclined to
focus on the first word, prefix, or syllable in any trademark or service mark,” and that
“the lettering ‘BNG’ appears first in applicant’s mark and comprises the entirety of
the literal element in [the] Cited Mark.” 9 TTABVUE 6. As a result, “consumers are
more likely to focus on and recall this portion of the mark.” Id. at 6-7. He notes that
“the wording ‘BIRYANI-N-GRILL’ is disclaimed and, as established by the evidence
of record, is descriptive of the applied-for services,” and argues that although the
coloring and stylization of Applicant’s mark is different from that of the cited mark,
“the word portion is often considered the dominant feature and is accorded greater
weight in determining whether marks are confusingly similar,” id. at 8, and “the
dominant element in the applied-for mark is ‘BNG,’ which is identical to the literal
element in the Cited Mark.” Id. at 7.
The Examining Attorney further argues that the presence of the disclaimed
phrase “Biryani-N-Grill” in Applicant’s mark is insufficient to distinguish that mark
from the cited mark because “[a]lthough consumers would likely recognize ‘BNG’ in
the applicant’s mark as referring to ‘BIRYANI-N-GRILL,’ the lettering in the
registrant’s mark is incorporated in its entirety into applicant’s mark and contains
no additional wording to distinguish it from applicant’s mark.” Id. He claims that
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“consumers would likely view the registrant’s mark as a shortened version of the
applicant’s mark.” Id.
The Examining Attorney rejects Applicant’s argument that the letters BNG in the
marks have different connotations because the letters would be understood to mean
“Bagels N Green” in the cited mark because “when determining the meaning of two
marks, it is the marks themselves, as set forth in the application and cited
registration, not extrinsic evidence, which determines likelihood of confusion.” Id. at
8. He also rejects Applicant’s claim “that the shared initialism ‘BNG’ is weak, and as
such, is not entitled to a broad scope of protection,” because BNG “in the registrant’s
mark appears arbitrary and fanciful” and because Applicant did not provide evidence
“that ‘BNG’ is a readily recognized acronym that would be understood by consumers
as having a descriptive connotation,” or “evidence of third-party registrations or
marketplace evidence establishing that ‘BNG’ is widely used in applicant’s and
registrant’s industry.” Id. at 9. He concludes that the marks are sufficiently similar
to sustain the refusal even if the cited mark is weak. Id.
3. Analysis of Similarity
The marks must be considered in their entireties, Detroit Athletic Co., 128
USPQ2d at 1048, but “‘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.’” Id. at 1051
(quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985)).
Serial No. 87355546
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We will begin by identifying the dominant portions of the marks because both marks
contain literal elements and design elements.
“In the case of a composite mark containing both words and a design, ‘the verbal
portion of the mark is the one most likely to indicate the origin of the goods [or
services] to which it is affixed.’” Viterra, 101 USPQ2d at 1908 (quoting CBS Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983)); see also In re Aquitaine
Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018). This “principle is especially
important in cases involving restaurant services in view of the propensity of persons
to try restaurants based on word-of-mouth recommendations.” In re Appetito
Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987). “‘[R]estaurants are often
recommended by word of mouth and referred to orally, [so] it is the word portion of
applicant’s mark which is more likely to be impressed on the consumer’s memory.’”
In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997)
(quoting Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390,
395 (Fed. Cir. 1983)). The literal portions of the cited mark and Applicant’s mark,
both of which begin with the identical letters “BNG,” are the elements most likely to
indicate the origin of the services with which they are used, Viterra, 101 USPQ2d at
1908, because they will be recalled and used when ordering and recommending the
identified restaurant services.
With respect to appearance, we agree with Applicant that his mark’s “appearance
is longer, has different colors, and a different design” than the cited mark. 7
TTABVUE 10. Those differences are discernable when the marks are viewed
Serial No. 87355546
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together, as they are displayed above, but “[t]he proper perspective on which the
analysis must focus is on the recollection of the average customer, who retains a
general rather than specific impression of marks,” i.am.symbolic, 127 USPQ2d at
1630, and “marks ‘must be considered . . . in light of the fallibility of human memory’
and ‘not on the basis of side-by-side comparison.’” St. Helena Hosp., 113 USPQ2d at
1085 (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d
683, 196 USPQ 1, 3 (CCPA 1977)). We find that the marks are similar in appearance
because an average consumer with a fallible memory and a general impression of
Applicant’s or Registrant’s BNG-dominated mark who encounters the other BNG-
dominated mark, is unlikely to recall the design elements of the first mark or to
distinguish the second mark by its different appearance.
As for similarity in sound (a critical means of comparison in restaurant cases that
is virtually ignored by both Applicant and the Examining Attorney), both marks
contain the letters BNG, which would be pronounced and heard identically when the
marks are verbalized. The letters BNG would be accompanied by the phrase
“BIRYANI-N-GRILL” if all of the literal elements of Applicant’s mark were
verbalized, but that appears unlikely to occur each time the mark is verbalized, or
even frequently, given “the penchant of consumers to shorten marks.” In re Bay State
Brewing Co., 117 USPQ2d 1958, 1961 (TTAB 2016) (citing In re Abcor Dev. Corp., 588
F.2d 811, 200 USPQ 215, 219 (CCPA 1978) (Rich, J., concurring) (“the users of
language have a universal habit of shortening full names—from haste or laziness or
just economy of words”)); see also Aquitaine Wine USA, 126 USPQ2d at 1188
Serial No. 87355546
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(“consumers often have a propensity to shorten marks” when ordering goods or
services orally).
Applicant’s mark includes the “BNG” initialism for the phrase “BIRYANI-N-
GRILL,” which both reflects Applicant’s acknowledgment of consumers’ “propensity
to shorten marks” and encourages consumers to do just that when they verbalize
Applicant’s mark by using “BNG” to refer to or recommend Applicant’s restaurant
services. It is likely that the initialism will frequently be used alone; and when it is,
the marks will be verbalized identically. We find, in any event, that the marks are
similar in sound even if Applicant’s mark is verbalized in its entirety due to the
common presence of the letters BNG.
Finally, as to the connotation and commercial impression of the marks, we agree
with Applicant that his mark “creates a connotation of an eatery and grill that mixes
grilling with biryani-type dishes.” 7 TTABVUE 12. At the same time, however, we
agree with the Examining Attorney that “when determining the meaning of two
marks, it is the marks themselves, as set forth in the application and cited
registration, not extrinsic evidence, which determines likelihood of confusion.” 9
TTABVUE 8 (citing In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 n.4
(Fed. Cir. 1993)). We are obliged to consider the meaning of the cited mark as it
appears in the registration, without resort to what a consumer might learn from
Registrant’s “specimen, webpage, and owners [sic] name.” 7 TTABVUE 11. Applicant
acknowledges that the cited mark “creates . . . no immediate connotation” in the
context of restaurant services, including sit-down service and take-out restaurant
Serial No. 87355546
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services. Id. at 12.12 We agree with the Examining Attorney that under those
circumstances, a consumer familiar with Applicant’s mark could view the cited mark
as a shortened version of Applicant’s mark that contains the initialism “BNG” alone,
9 TTABVUE 7, and we similarly find that a consumer familiar with the cited mark
could view Applicant’s mark as a variation of the cited mark that reveals the meaning
of the letters “BNG.”13
The marks are similar in appearance, sound, and connotation and commercial
impression. This DuPont factor supports a finding of a likelihood of confusion.
C. Other DuPont Factors
In addition to the first three DuPont factors that we have found to support a
finding of a likelihood of confusion, Applicant lists as relevant the fourth DuPont
factor, the conditions under which and buyers to whom sales are made, the sixth

12 Applicant argues that “[e]ven marks that are identical in sound and/or appearance may
create sufficiently different commercial impressions when applied to the respective parties’
goods or services so that there is no likelihood of confusion,” 7 TTABVUE 11, citing In re
Sears, Roebuck & Co., 2 USPQ2d 1312 (TTAB 1987), In re British Bulldog, Ltd., 224 USPQ
854 (TTAB 1984), and In re Sydel Lingerie Co., 197 USPQ 629 (TTAB 1977), in which the
Board found that marks that were identical or very similar in appearance and sound were
not confusingly similar because their meanings differed in the context of different goods. 7
TTABVUE 11-12. These cases do not aid Applicant because, as he acknowledges, “the
meaning or connotation of a mark must be determined in relation to the named goods or
services,” id. at 11, and the named services here are identical.
13 Applicant cites numerous cases for the proposition that “if the common element of two
marks is ‘weak’ in that it is generic, descriptive, or highly suggestive of the named goods or
services, it is unlikely that consumers will be confused unless the overall combinations have
other commonality.” 7 TTABVUE 13-14. Applicant argues that “the trademarks at issue
share the same, weak, overlapping term(s) namely BNG,” id. at 14, but we agree with the
Examining Attorney that Applicant has provided no evidence of the claimed weakness of
BNG in the context of restaurant services. 9 TTABVUE 9. Indeed, Applicant argues that
“consumers have no immediate knowledge of what BNG stands for,” id., which completely
belies his suggestion that BNG is “weak in that it is generic, descriptive, or highly suggestive
of the named goods or services.”
Serial No. 87355546
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DuPont factor, the number and nature of similar marks in use on similar services,14
and the eighth DuPont factor, the length of time during and conditions under which
there has been concurrent use without evidence of actual confusion. 7 TTABVUE 6-
7. The only one of these factors that Applicant discusses beyond merely listing it is
the fourth DuPont factor, as to which Applicant recites the proposition that
“circumstances suggesting care in purchasing may tend to minimize likelihood of
confusion.” Id. at 8 (citing TMEP § 1207.01(d)(vii)). As the cited TMEP section notes,
however, our decision must be based “on the least sophisticated potential
purchasers,” id. (quoting Stone Lion, 110 USPQ2d at 1160), and Applicant offers no
evidence that the least sophisticated potential purchaser of restaurant services is
likely to exercise any particular care in purchasing. Accordingly, we find that the
fourth DuPont factor is neutral in our analysis of likelihood of confusion.
D. Summary and Conclusion
The services, channels of trade, and target consumers in the application and cited
registration are identical, which reduces the degree of similarity between the marks
that is required for confusion to be likely. The marks are similar in appearance,
sound, and connotation and commercial impression. Their similarity in sound is
particularly significant given their use for restaurant services, as to which shortened
verbal uses of marks are prevalent. There are no countervailing DuPont factors. We

14 As noted above, Applicant made of record a list of registrations from the TESS database,
November 30, 2017 Response to Office Action at TSDR 13, and argued that they showed that
“there are 5 other marks also using the initials BNG.” Id. at 10. He has abandoned this
argument on appeal, and the TESS list is insufficient in any event to make the listed
registrations of record. See, e.g., Edom Labs., Inc. v. Lichter, 102 USPQ2d 1546, 1550 (TTAB
2012).
Serial No. 87355546
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therefore find that confusion is likely as a result of use of the applied-for mark for the
services identified in the application.
Decision: The refusal to register is affirmed.