The Kitchen Cafe, LLC

Trademark Trial and Appeal Board

Nov 17, 2015

No. 85969508 (T.T.A.B. Nov. 17, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: November 17, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re The Kitchen Cafe, LLC
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Serial No. 85969508
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Nadya Davis, Scott S. Havlick, and Andrew Roppel of Holland & Hart LLP,
for The Kitchen Cafe, LLC.
John S. Miranda, Trademark Examining Attorney, Law Office 120,1
Michael W. Baird, Managing Attorney.
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Before Quinn, Ritchie, and Lykos,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
The Kitchen Cafe, LLC (“Applicant”) seeks registration on the Principal Register
of the mark THE KITCHEN (in standard characters), for services identified as
“restaurant services,” in International Class 43.2

1 The case was reassigned to this Trademark Examining Attorney after the appeal was
filed.
2 Application Serial No. 85969508 was filed on June 25, 2013, under Section 1(a) of the
Trademark Act, alleging dates of first use in February 2004 and dates of first use in
commerce on March 16, 2004, and claiming acquired distinctiveness of the mark in whole.
Serial No. 85969508
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The Trademark 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, when applied to the identified services, so resembles the
previously registered mark, DA KITCHEN, also in standard character format, for,
as relevant, “restaurant services; carry out restaurant services; catering services,”
in International Class 43,3 as to be likely to cause confusion, mistake, or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Evidentiary Issues
Preliminarily, we note that the Examining Attorney objects to all evidence
attached to Applicant’s brief on the grounds that it was submitted for the first time
on appeal. The record should be complete prior to the filing of an appeal. 37 C.F.R. §
2.142(d); TBMP § 1203.01 (June 2015). The objection is sustained and we have
given the evidence no consideration in our analysis.4
II. Applicable Law
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence that are relevant to the factors set forth in In re
E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See
also In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.

3 Registration No. 3792358, issued May 25, 2010, and disclaiming “kitchen.”
4 We note that inclusion thereof would not have affected our decision.
Serial No. 85969508
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Cir. 2003). In any likelihood of confusion analysis, 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 (CCPA 1976). See also In re Dixie Restaurants Inc., 105 F.3d 1405, 41
USPQ2d 1531 (Fed. Cir. 1997). We consider the du Pont factors for which there
were arguments and evidence. The others, we consider to be neutral.
Services/Channels of Trade
We consider first the du Pont factor of similarity or dissimilarity of the services.
Applicant identifies “restaurant services.” This is identical-in-part, and thus legally
identical to, the services identified in the cited registration, “restaurant services;
carry out restaurant services; catering services.”
Because the services identified in the application and the cited registration are
in part identical, we must presume that the channels of trade and classes of
purchasers are the same for those identical services. See Squirtco v. Tomy
Corporation, 697 F.2d 1038, 216 USPQ 937 (Fed. Cir. 1983); see also 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.”). Additionally, there is nothing in the
identification of services in either the cited registration or the application that
limits either Registrant’s or Applicant’s channels of trade. See In re Linkvest S.A.,
24 USPQ2d 1716, 1716 (TTAB 1992) (because there are no limitations as to
channels of trade or classes of purchasers in either the application or the cited
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registration, it is presumed that the goods listed in the registration and the
application move in all channels of trade normal for those goods, and that the goods
are available to all classes of purchasers for the goods). Accordingly, we find that
these du Pont factors weigh heavily in favor of finding a likelihood of consumer
confusion.
The Marks
We note that when, as here, the services at issue are identical, the degree of
similarity between the marks which is required to support a finding of likelihood of
confusion is less than if the services were not identical. In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012) (citing Century 21 Real Estate Corp.
v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992)). We
consider and compare the appearance, sound, connotation and commercial
impression of the marks in their entireties. Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed.
Cir. 2005).
In comparing the marks, we are mindful that the test is not whether the marks
can be distinguished when subjected to a side-by-side 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 services offered under the
respective marks is likely to result. San Fernando Electric Mfg. Co. v. JFD
Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons
Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff'd mem.,
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No. 92-1086 (Fed. Cir. June 5, 1992). The proper focus is on the recollection of the
average customer, who retains a general rather than specific impression of the
marks. Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344
(TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Applicant’s mark is THE KITCHEN, whereas the mark in the cited registration
is DA KITCHEN. The Examining Attorney argues that these marks are similar in
sight, sound, and commercial impression, in that the first terms are quite similar
and have the same meaning and the second terms are the same. In particular, the
Examining Attorney asserts that the term “DA” is understood as a slang term for
“the,” which is the same as the first term as the mark in the cited registration.
Applicant, on the other hand, argues that it would not be understood this way.
Rather, Applicant argues that 1) “DA” has other meanings; 2) “DA” only means
“the” if translated from Hawaiian pidgin or Hawaiian slang, which is not subject to
the doctrine of foreign equivalents; 3) regardless, the term “DA” changes the overall
commercial impression of the mark; 4) there is no evidence that consumers are
likely to pronounce the marks identically; 5) the correct analysis is to compare
KITCHEN (without “THE”) and DA KITCHEN; and 6) Registrant has
acknowledged that the cited mark is entitled to a narrow scope of protection, and
that the mark in the cited registration would not be confused with the term “THE
KITCHEN.”
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The Examining Attorney submitted numerous examples of slang dictionary
definitions and third-party uses of the term “DA” as referring to the word “the.”
Some examples include the following:
The Online Slang Dictionary: da: “the” Go get da rake; That was da best
song I ever heard.
October 3, 2013 Office Action, at 23; Onlineslangdictionary.com.

What does DA mean?
DA is “The” or “District Attorney” or “Dad”
October 3, 2013 Office Action, at 18; InternetSlang.com.

DA: THE for people who are to stupid to string all three letters togather
[sic]: that is da bomb; da 1. (Russian) Yes; 2. (slang) The.
October 3, 2013 Office Action, at 20; urbandictionary.com.

da: (in the US, especially used in Chicago and New York) Eye dialect
spelling of the. Da New York Times. Da Bears. April 24, 2015
Denial of Request for Reconsideration, at 7; http://en.wiktionary.org.

USA Today; December 20, 2014; Only thing even Rahm Emanuel can’t fix:
Da Bears: Chicago (AP) Rahm Emanuel traded Washington politics for
the City of Big Shoulders because here, at least, he figured he could
actually fix things. The Chicago Bears were not on his list.
April 24, 2015 Denial of Request for Reconsideration, at 30; usatoday.com.

How to Fake a Chicago Accent: Emphasize “D” sounds at the start of
words and replace “th-“ sounds with “D”s. For example, “I was supposed to
see the Bears play but I got stuck in traffic on the Dan Ryan” becomes: “I
was supposed to see da Bears play but I got stuck in traffic on da Dan
Ryan.” If talking fast try to blend in the “th” with a “d” sound.
April 24, 2015 Denial of Request for Reconsideration, at 57-58;
Wikihow.com

We find that although “DA” may have other meanings, and while it may indeed
also be Hawaiian pidgin, there is no need to consider those other meanings, or to
invoke the doctrine of foreign equivalents. Rather, the obvious meaning in this
context is clear. The mark DA KITCHEN gives the clear commercial impression of
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“the kitchen.” It also has a very similar sound to the common pronunciation of “the,”
with a soft “e.”
As to Applicant’s other arguments, we must consider the marks in their
entireties. Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 73 USPQ2d at 1692. Furthermore, while Registrant may indeed have argued
against a prior citation of a mark for THE KITCHEN, and design as cited against
its DA KITCHEN, we note that while arguing against the citation, Registrant at the
same time pointed out that it had been abandoned,5 which is illuminative of the
“shade and tone” of the picture before us. See Juice Generation, Inc. v. GS Enters.
LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015), citing to Interstate
Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 198 USPQ 151 (CCPA
1978).
Finally, Applicant argues that the mark in the cited registration is weak and
entitled to only a narrow scope of protection. Applicant cited in its brief to sixteen
third-party registrations that were submitted into the record by the Examining
Attorney with the October 3, 2013 Office Action and that include the term
“KITCHEN” for restaurant services: KITCHEN, and design, Registration No.
3191490, and disclaiming “kitchen”; BROWN SUGAR KITCHEN, Registration
No.4089191, on the Supplemental Register, and disclaiming “kitchen”;

5 Applicant submitted into the record the Office Action and Response to Office Action from
Registrant’s file. The Office Action noted the pending application for THE KITCHEN, and
design as a possible Section 2(d) bar to registration, and the Response to Office Action
argued against any likelihood of confusion therewith, while noting that the application had,
in any regard, been abandoned.
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CALIFORNIA CHUTNEY TANDOORI KITCHEN, Registration No. 4402012, on
the Supplemental Register and disclaiming “Tandoori kitchen”; VILLA ITALIAN
KITCHEN, Registration No.4269655, and disclaiming “Italian kitchen”; O’S
AMERICAN KITCHEN, Registration No. 4290216, and disclaiming “American
kitchen”; YOUR WORLD KITCHEN, Registration No. 4325707, and disclaiming
“kitchen”; RUSTIC KITCHEN, Registration No. 4253386, and disclaiming
“kitchen”; VINE AMERICAN KITCHEN, Registration No. 4373470, and disclaiming
“American kitchen”; ELEVEN14 KITCHEN, Registration No. 4257696, and
disclaiming “kitchen”; KO JA KITCHEN, Registration No. 4312271, and disclaiming
“kitchen”; TWISTED KITCHEN PASTA & NOODLE COMPANY, and design,
Registration No. 4327564, and disclaiming “kitchen pasta & noodle company”;
GLENN’S KITCHEN, Registration No. 4321204, and disclaiming “kitchen”; K-
PAUL’S LOUISIANA KITCHEN, Registration No. 4360386, and disclaiming
“Louisiana kitchen”; LEGACY KITCHEN, and design, Registration No. 4381324,
and disclaiming “kitchen”; CROSBY’S KITCHEN, and design, Registration No.
4383590, and disclaiming “kitchen”; and BUTTERMILK KITCHEN, and design,
Registration No. 4406269, and disclaiming “kitchen.”
The term “kitchen” is disclaimed in all of these registrations. It is also
disclaimed in the cited registration, and Applicant claims acquired distinctiveness
of the mark in whole, thereby acknowledging descriptiveness. The Cold War
Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d 1626, 1629
(Fed. Cir. 2009) (“where an applicant seeks registration on the basis of Section 2(f),
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the mark’s descriptiveness is a nonissue; an applicant’s reliance on Section 2(f)
during prosecution presumes that the mark is descriptive.”) Accordingly, there is
clear evidence of descriptiveness of the term “KITCHEN.” 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. August 19, 2015); Juice
Generation, Inc. v. GS Enters. LLC, 115 USPQ2d at 1675.
That said, there is no evidence of commercial weakness of the mark in the cited
registration. Furthermore, we find that Applicant’s standard character mark at
issue in this proceeding, THE KITCHEN, is more similar than any of the third-
party registrations to the mark in the cited registration, DA KITCHEN, in sight,
sound, meaning and commercial impression.
Accordingly, we find that the similarities in meaning and commercial impression
outweigh differences in sight and sound, and that the first du Pont factor weighs in
favor of finding a likelihood of confusion.
III. Conclusion
In conclusion, considering all of the arguments and evidence of record as they
pertain to the relevant du Pont factors, we find the services are in relevant part
identical and would therefore travel through the same and similar channels of trade
while the marks have the same meaning and commercial impression of “the
kitchen,” and are also similar in sound, which similarities outweigh slight
differences between them. We further find that the weakness of the mark in the
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cited registration does not overcome the similarities between the marks.
Accordingly, we find a likelihood of confusion.
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.