Trilliant Food and Nutrition, LLC

Trademark Trial and Appeal Board

Jun 6, 2018

No. 87299665 (T.T.A.B. Jun. 6, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 6, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Trilliant Food and Nutrition, LLC
_____

Serial No. 87299665

_____

Kyle T. Peterson of Patterson Thuente Pedersen, PA
for Trilliant Food and Nutrition, LLC.
Khanh M. Le, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
_____

Before Wellington, Masiello, and Larkin,
Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:
Trilliant Food and Nutrition, LLC (“Applicant”) filed an application for
registration on the Principal Register of the mark AMORESPRESSO in standard
characters for “coffee sold in pods for use in single-serve brewing machines,” in
International Class 30.1 The Trademark Examining Attorney refused registration
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that the

1 Application Serial No. 87299665 was filed on January 12, 2017 on the basis of Applicant’s
asserted bona fide intention to use the mark in commerce under Trademark Act Section 1(b),
15 U.S.C. § 1051(b).
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mark, as used in connection with Applicant’s goods, so resembles the registered mark
shown below as to be likely to cause confusion, or to cause mistake, or to deceive.

The cited mark is registered for “Catering services; Coffee supply services; Rental
services in the field of coffee machines and espresso machines and equipment,” in
International Class 43.2 When the refusal was made final, Applicant appealed to this
Board and requested reconsideration. The Examining Attorney denied the request
for reconsideration and this appeal proceeded. Applicant and the Examining Attorney
have filed briefs.3
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the issue of likelihood of confusion as
set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods and services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976). In this case, Applicant and the Examining Attorney have also

2 Reg. No. 5022027 issued on August 16, 2016. No claim is made to the exclusive right to use
ESPRESSO apart from the mark as shown.
3 References to the examination record refer to the pdf version of documents in the USPTO’s
Trademark Status and Document Retrieval system. References to the briefs refer to the
Board’s TTABVUE docketing system.
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submitted evidence and arguments regarding the strength of the cited mark, trade
channels, and classes of customers.
A. The marks.
We first consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. See Palm Bay Imps.,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1691 (Fed. Cir. 2005). “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).
Moreover, marks must be considered in light of the fallibility of memory. In re St.
Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014).
The marks are similar in appearance, sound, and meaning because each includes
the word ESPRESSO and the word AMOR or AMORE. Applicant’s mark differs from
the cited mark in appearance and sound to the extent that the words are in reverse
order; and Applicant’s mark is presented as a single word, as compared to the two
words of the cited mark. Although the inversion of the words causes the two marks
to sound different, they nonetheless have many points of similarity in sound. We also
note that Applicant’s mark may be perceived as a “telescoping” of the words “amore”
and “espresso” (as opposed to a combination of “amor” and “espresso”), so that it could
be pronounced “amore espresso,” an exact inversion of the pronunciation of the cited
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mark. Indeed, the translation statement in the application indicates that the foreign
word in the mark is “amore,” not “amor.”4
The stylized lettering and design element in the cited mark are additional points
of difference in appearance. However, we generally give less weight to the stylization
and design elements of a mark than to its wording, because the wording would be
used by consumers to request the goods or services. In re Dakin’s Miniatures, Inc., 59
USPQ2d 1593, 1596 (TTAB 1999). See also Sweats Fashions Inc. v. Pannill Knitting
Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987); Giant Food, Inc. v.
Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 395 (Fed. Cir. 1983).
Moreover, Applicant seeks to register its mark in standard character form, such that
it would not be limited to any particular form of display, and could be displayed in
stylized letters that resemble those of Registrant’s mark. See Squirtco v. Tomy Corp.,
697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983); see also In re i.am.symbolic, 866
F.3d 1315, 123 USPQ2d 1744, 1748 (Fed. Cir. 2017).
With respect to meaning, both marks conflate the idea of espresso-style coffee with
love. The application, like the registration, contains a statement that “[t]he English
translation of amore in the mark is love.”5 Neither Applicant nor the Examining
Attorney has suggested that the inversion of the words alters the meaning of the
marks. Rather, the Examining Attorney argues that where marks convey the same

4 Response of March 23, 2017 at 3.
5 Id.; March 22, 2017 Office Action at 9.
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meaning, the transposition of words is not sufficient to dispel likely confusion.6 This
argument is persuasive in the present case. Giving consideration to the fallibility of
memory, a customer may remember the meaning of the mark but not the precise
order of the words, and in this case either word order would result in the same
meaning.
Overall, we find that the similarities between the marks outweigh the differences
and that the marks create highly similar commercial impressions. Therefore, the du
Pont factor of the similarity or dissimilarity of the marks weighs in favor of a finding
of likelihood of confusion.
B. The strength or weakness of Registrant’s mark.
On a literal level, there is no association between the word AMORE and coffee.
Thus, on its face, AMORE appears to be arbitrary as applied to coffee, making it the
strongest type of source-indicating term. See Abercrombie & Fitch Co. v. Hunting
World, Inc., 537 F.2d 4, 189 USPQ 759, 764-65 (2d Cir. 1976) (categorizing terms as
fanciful, arbitrary, suggestive, descriptive, or generic). However, Applicant argues
that “the term ‘AMORE’ is a weak source indicator and should not be afforded broad
protection in the field of coffee.”7 To demonstrate this purported weakness, Applicant
has made of record the following eight third-party registrations8 of marks that
include the term AMORE or some variant thereof:

6 Examining Attorney’s brief, 10 TTABVUE 5-6.
7 Applicant’s brief, 8 TTABVUE 11.
8 Applicant’s response of March 23, 2017 at 21-49.
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Reg.
No.
Mark Goods/Services
(paraphrased)

3738804 CAFFE
D’AMORE
coffee, powder mixes, and powdered mixes for
producing coffee-flavored beverages

4283378 CAPPUCCINO
L’AMOUR
cappuccino, chocolate, chocolate syrup, cocoa, coffee,
hot chocolate, instant coffee

4923087 PURAMOR supplements, herbal powders, coffee, tea, spices

4146173 CRÊPE
AMOUR
restaurants featuring crepes, Belgian waffles, coffee
drinks and smoothies

4991649 Ô SORBET
D’AMOUR
sherbets and numerous types of foods in Classes 29,
30 and 32, including coffee [not use-based]

3871101 THE AMORE Class 35 services including “retail store services in the
field of … coffee [and many other dissimilar goods]”;
and “mediation of agreements regarding the sale and
purchase of goods in the field of … coffee [and many
other dissimilar goods].”

4957936 AMOUR
DOLCI
(stylized)

numerous food items in Class 30, including coffee [not
use-based]

4665339 AMORE
VENEZIANO
numerous food items in Classes 29 and 30 (including
coffee), and numerous services in Class 43 [not use-
based.]

The Federal Circuit has held that evidence of the extensive registration and use
of a term by others can be powerful evidence of the term’s weakness. Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. v. 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, 1674 (Fed. Cir. 2015). Use evidence may reflect
commercial weakness, while third-party registration evidence that does not equate
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to proof of third-party use “is relevant to prove that some segment of the composite
marks . . . has a normally understood and well recognized descriptive or suggestive
meaning, leading to the conclusion that that segment is relatively weak.” Juice
Generation, 115 USPQ2d at 1675 (quoting 2 MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 11:90 (4th ed. 2015)). “[A] real evidentiary value of third party
registrations per se is to show the sense in which … a mark is used in ordinary
parlance.” Id.
It is difficult to discern in the eight proffered registrations any clear association
between coffee and the term AMORE indicating any sense in which that term is used
in ordinary parlance in connection with coffee. In all but three of the registrations,
coffee is only one of a wide variety of goods listed in the registrations, and it is not
reasonable to presume that a term is suggestive or descriptive of every item listed in
a very lengthy identification of goods. At the very most, these registrations indicate
that AMORE suggests the desirability of certain tasty foods, and it does so in a very
weak way. On this record, Applicant has not shown the word AMORE to be so
suggestive as applied to the pertinent goods as to substantially reduce the scope of
protection to which Registrant’s mark is entitled. Therefore, this du Pont factor
weighs only very slightly against a finding of likelihood of confusion.
C. The goods and services.
We next consider the similarity or dissimilarity of the goods and services as
identified in the application and the cited registration. Stone Lion Capital Partners,
LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-62 (Fed. Cir. 2014);
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Octocom Sys. Inc. v. Hous. Comps. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990). Likelihood of confusion can be found with respect to particular goods
and services if they “are related in some manner and/or if the circumstances
surrounding their marketing are such that they could give rise to the mistaken belief
that they emanate from the same source.” Coach Servs. v. Triumph Learning, 101
USPQ2d at 1722 (internal quotation marks and citations omitted). The Examining
Attorney has focused on comparing Applicant’s goods with Registrant’s catering and
coffee supply services. In order to demonstrate that Applicant’s goods are related to
such services, the Examining Attorney has submitted evidence from the internet
showing 12 businesses that provide coffee catering and also offer their own coffee as
a product.9 In particular, the evidence shows the following businesses that offer coffee
catering services and also sell their own branded coffee:
Vasquez Coffee Company Catering San Francisco events.

Brazil dark roast coffee under same mark.

Jittery Joe’s Packaged coffee.

Office Coffee Service: “Whether you’re looking for a
single coffee station or need coffee for a full-service
cafeteria, we can make your company the envy of all
others.”

Nossa Familia Coffee Roasted coffee.

Coffee catering: “COFFEE CART, ESPRESSO
SERVICE & EVENT CATERING OPTIONS.”

9 Office Actions of March 22, 2017 at 11-24; November 21, 2017 at 8-21; and December 15,
2017 at 4-35. We have not given weight to the evidence relating to Old City Coffee,
, and Sì, Espresso, because it is not clear that these businesses, which
provide coffee supply services, also offer their own branded coffee.
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À Roma Roasters “[L]ocally owned coffee house. We are the oldest
roaster in Sonoma County …”

Offers its own roasted coffee under brands BABE’S
ROCKET FUEL and AWAKEN.

Its “catering services will fulfill all your needs for
coffee and pastries at your next special event. . . .
Our barista will satisfy your needs with our house
coffee and traditional espresso drinks. . . . Any
occasion, from an office meeting to your family or
social event, is suitable for our catering services.”

Insight Coffee Roasters Provides its own marked brewed coffee with its
catering service. Also sells roasted coffee.

Red Bay Coffee Offers packaged coffee.

Catering: “We offer a beautifully curated, full service
event setup with dedicated baristas for events small
and large. Whether you need coffee service for a
small pop-up gathering or a conference serving 500+
people, we have a package to suit your needs.”

Klatch Coffee Coffee under the brand ESPRESSO DUO.

Catering: “Whether you are a seasoned event
planner or planning your own private event, Klatch
Coffee can assist in making your special occasion an
event to remember.”

Community Coffee Office Coffee Service & Delivery

Community Coffee K-Cup Pods

Kaiser’s Coffee & Candy Kaiser’s Coffee Service With Delivery & Convenience

Packaged coffee and K-Cups under the same brand.

Royal Cup Coffee and Tea Packaged coffee.

Office coffee programs

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First Choice Coffee
Services
Office coffee services to businesses.

Its own coffee in pods under the FIRST CAFÉ mark.

Crystal Rock “Gourmet Coffee Delivery Service . . . Our automatic
delivery will take care of coffee inventory and
breakroom accessory management. Premium service,
delivery after delivery …”

Its own coffee in single-serve pods under the COOL
BEANS mark.

The Examining Attorney’s evidence is sufficient to persuade us that relevant
customers would readily believe that coffee as a product and the service of coffee
supply or coffee catering may emanate from the same source. It is a relevant
circumstance of the marketing of the goods and services that coffee catering and
supply are a context in which coffee as a product is recommended, sold and delivered.
This is illustrated by the evidence. Community Coffee, in advertising its “Office
Coffee Service and Delivery,” states: “each of our high-quality coffees has rich flavor,
a delicate aroma and a smooth, satisfying finish. . . . Community coffee K-Cup pods
are a great addition to any coffee program.”10 Jittery Joe’s, in advertising its coffee
supply service, states: “our coffee will make your taste buds go wild …All Products
Top Quality.”11 Although not all of the third-party examples show that the coffee is
offered in the form of pods, as is Applicant’s coffee, we find that there is little
distinction between coffee sold in pods and coffee sold in other forms of packaging,

10 Office Action of December 15, 2017 at 4, 7.
11 Office Action of March 22, 2017 at 16-17.
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and that customers would perceive little difference between companies that sell coffee
in different types of packages. In any event, at least four of the Examining Attorney’s
marketplace examples show that businesses that offer coffee catering also sell coffee
in pods.
Applicant argues that the Examining Attorney’s refusal “provides a scope of
protection for the cited . . . mark that far exceeds any reasonable zone of expansion.”12
Applicant contends that since the 1990s, Registrant has “never expanded into any
goods or services other than those listed in the cited registration.”13 However,
Registrant’s business history or expansion plans are not a relevant consideration in
our analysis, because they are not necessarily known to customers. Our inquiry is
directed to the perceptions of relevant customers who encounter the marks at issue
on the relevant goods and services, and to whether customers would perceive the
goods and services as originating with the same source. Applicant also argues that it
has been “unable to find any major coffee brands that have expanded into catering
services . . .”14 Applicant has not presented any evidence relating to its search efforts.
In any event, whether such an expansion would be undertaken by a major coffee
brand is only part of the relevant inquiry, because customers in the field of coffee and
coffee catering encounter lesser known brands in the marketplace, as the evidence
shows. Even if one assumes that the third-party businesses shown in the Examining

12 Applicant’s brief, 8 TTABVUE 6.
13 Id.
14 Id.
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Attorney’s evidence are not “major” brands (which has not been shown), the evidence
nonetheless shows that such third parties are present in the marketplace offering
both coffee and coffee catering.
Applicant argues that “it has never been held that a registration for a mark on a
service that supplies a beverage product would preclude a similar mark on all related
beverage products. . . . Indeed, if all catering services are considered ‘complementary’
to any goods which might be offered by a caterer, then the scope of protection for all
catering and supply services has been drastically expanded.”15 This “slippery slope”
argument is unavailing because, in cases before the Board, the comparison of goods
and services must relate to the specific goods and services identified in the application
and the cited registration. Stone Lion, 110 USPQ2d at 1161-62; Octocom, 16 USPQ2d
at 1787. Accordingly, there is no need to rely on the type of sweeping per se rules
hypothesized by Applicant. The issues raised by the case before us are much narrower
than whether catering is commercially related to all foods and beverages.
Based upon the evidence of record, we find that the du Pont factor of the similarity
or dissimilarity of the goods and services at issue favors a finding of likelihood of
confusion.
D. Trade channels; customers.
Applicant argues that it “intends to sell its goods using different trade channels
than [the] owner of the Cited Mark . . . ,”16 and that “what constitutes a normal trade

15 Id. at 6-7.
16 Id. at 5.
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channel for one type of goods can be entirely different from the normal trade channel
for another type.”17 Applicant does not explain what the different trade channels are,
other than to point out that the goods and services may be offered to different types
of customers. What the evidence shows, as is discussed above, is that Registrant’s
service is, in fact, a trade channel in which coffee pods for single-serve brewing
machines travel; to this extent, catering services and coffee pods are advertised
together. It is clear that there is, at a minimum, an overlap between the trade
channels of these goods and services, because coffee pods are sometimes a feature of
coffee catering services. Even where pods are not part of the catering service,
however, the evidence shows that purveyors of coffee have advertised both their
catering services and their coffee pods on the same website.
With respect to customers, Applicant argues that it “sells coffee to consumers,”
while Registrant “provides catering services that are purchased by event planners
and venue managers”;18 and that “the types of consumers seeking out services offered
under the Cited Mark are unlikely to seek out and [sic] retail coffee company or
encounter the goods Applicant intends to offer . . .”19 We do not agree that the relevant
customer classes are entirely separate. The evidence shows that business customers
of catering services may purchase coffee pods as part of such service. In addition,
several of the third-party coffee caterers offer their services not only to managers of

17 Id. at 9.
18 Id. at 8.
19 Id. at 9.
Serial No. 87299665
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large events, but also to consumers. À Roma Roasters advertises, “Any occasion, from
an office meeting to your family or social event, is suitable for our catering
services” (emphasis added).20 Klatch Coffee advertises, “Whether you are a seasoned
event planner or planning your own private event, Klatch Coffee can assist . . .”
(emphasis added).21 Red Bay Coffee advertises, “Whether you need coffee service for
a small pop-up gathering or a conference serving 500+ people, we have a package
to suit your needs (emphasis added).”22 Moreover, coffee is such a commonly
consumed beverage that it is likely that the individuals who make purchasing
decisions for event planners and venue managers are, themselves, coffee drinkers.
Finally, we find Applicant’s contention that Registrant’s customers are
“Sophisticated Purchasers”23 unpersuasive, inasmuch as coffee catering is sometimes
offered to individual customers who may have no particular sophistication, and we
must base our determination on the least sophisticated potential purchasers. Stone
Lion, 110 USPQ2d at 1163.
In sum, we find that there is overlap between the trade channels and the customer
classes for the goods and services at issue, and that these du Pont factors weigh in
favor of a finding of likelihood of confusion.

20 Office Action of November 21, 2017 at 10.
21 Id. at 21.
22 Id. at 19.
23 Applicant’s brief, 8 TTABVUE 7.
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E. Balancing the factors.
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. Applicant’s
standard character mark is highly similar to the cited mark and would be used on
goods that are commercially related to Registrant’s services. Although the term
AMORE as it appears in the marks may have some suggestiveness, it only very
slightly weakens Registrant’s mark as a source indicator. The goods and services are
offered through some of the same trade channels, and there is overlap between the
relevant customer classes. While some customers may be sophisticated
businesspeople, some are ordinary consumers, and we must consider the least
sophisticated potential customer. Overall, we find that Applicant’s mark so resembles
the cited registered mark as to be likely to cause confusion, mistake, or deception as
to the source of Applicant’s goods.
Decision: The refusal under Section 2(d) is AFFIRMED.