WinWin Asian Kitchen, LLC

Trademark Trial and Appeal Board

Mar 2, 2021

88414408 (T.T.A.B. Mar. 2, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: March 2, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re WinWin Asian Kitchen, LLC
_____

Serial No. 88414408
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Rory B. Weiner of Rory B. Weiner, P.A.,
for WinWin Asian Kitchen, LLC.
Doritt Carroll, Trademark Examining Attorney, Law Office 116,
Elizabeth Jackson, Managing Attorney.
_____

Before Zervas, Wellington, and Coggins,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:
WinWin Asian Kitchen, LLC (“Applicant”) seeks registration on the Principal
Register of the composite mark shown below for “restaurant services, including sit-
down service of food and take-out restaurant services” in International Class 43.1

1 Application Serial No. 88414408 was filed on May 3, 2019, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
use in commerce since at least as early as April 8, 2019.
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The application contains the following statements:
The mark consists of a red circle, bordered in red and white,
a white and red kitchen basket in the middle surrounded
by the words WinWin Asian Kitchen (on the top of the
circle) in white and Asian Restaurant (in Chinese
characters on the bottom) in white lettering.
The colors red and white are claimed as a feature of the
mark.
The English translation of [C]hinese characters in the
mark is [A]sian [restaurant].
The non-Latin characters in the mark transliterate to
Yàzhou Chúfáng and this means Asian Kitchen in English.
No claim is made to the exclusive right to use ASIAN
KITCHEN or the non-Latin characters that transliterate
to Yàzhou Chúfáng apart from the mark as shown.
The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied
to the restaurant services identified in the application, so resembles the following
three marks:
 WIN WIN (standard characters)2
 WIN WIN FILLIN’ STATION (standard characters,
“filling station” disclaimed)3
 (“filling station” disclaimed)4

2 Registration No. 5556062, issued September 4, 2018.
3 Registration No. 5618808, issued November 27, 2018.
4 Registration No. 5618175, issued November 27, 2018.
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owned by a single entity, each for “take out restaurant services; restaurant services,”5
in International Class 43, on the Principal Register as to be likely to cause confusion,
to cause 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. Procedural Issues
Before proceeding to the merits of the refusal, we address three procedural issues.
In its appeal brief, Applicant summarizes the evidence as including an “Office Action
of July 23, 2019.”6 We presume this is a typographical error, inasmuch as no Office
Action was issued that day. The Examining Attorney issued Office Actions on July
17, 2019; August 14, 2019; and February 11, 2020.
Applicant also states that it “concurrently . . . applied for registration for a design
mark containing the mark herein, under Serial No. 88414408, which was refused
registration for the same reasons as set forth herein.”7 Inasmuch as this appeal
involves application Serial No. 88414408, we presume this is a typographical error.
Board records indicate that an entity with similar name, same address, and same
counsel as Applicant was the owner of application Serial No. 88412518 for the

5 Each registration includes additional goods and/or services not at issue in this appeal.
6 Appeal Brief, p. 5 (6 TTABVUE 6). Citations to the briefs refer to the Board’s TTABVUE
docket system.
7 Appeal Brief, p. 5 (6 TTABVUE 5).
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standard character mark WIN WIN ASIAN KITCHEN, in which the Board last year
affirmed a refusal under Section 2(d) of the Trademark Act.
As the Examining Attorney mentions in her brief,8 Applicant repeatedly refers to
the composite mark at issue in this appeal as a “standard character” mark. However,
inasmuch as Applicant’s mark includes design elements, stylization, non-Latin
characters, and a claim to color as a feature of the mark, it does not meet the
requirements for a standard character mark. See TMEP §§ 807.03(a) (Requirements
for Standard Character Drawings), 807.04 (Special Form Drawings), and 1213.02
(“Composite” Marks) (Oct. 2018).
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)
(“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113
USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003). 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). When analyzing these factors, the overriding concern
is not only to prevent buyer confusion as to the source of the services, but also to
protect the registrant from adverse commercial impact due to use of a similar mark

8 Examiner’s Statement, unnumbered p. 1, n.1 (8 TTABVUE 2).
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by a newcomer. In re Country Oven, 2019 USPQ2d 443903, *2-3 (TTAB 2019) (citing
In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993)).
In any likelihood of confusion analysis, varying weights may be assigned to each
DuPont factor depending on the evidence presented, see Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011), and Shell Oil,
26 USPQ2d at 1688, but two key considerations are the similarities between the
marks and the similarities between the services. See In re i.am.symbolic, llc, 866 F.3d
1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017); In re Ox Paperboard, LLC, 2020
USPQ2d 10878, *3 (TTAB 2020). Applicant discusses these two key factors, as well
as the trade channels.
We will confine our DuPont analysis to the standard character mark WIN WIN in
cited Registration No. 5556062 (the “’062 Registration”). If we find a likelihood of
confusion as to that mark for any of the services identified in the ’062 Registration,
we need not reach the refusal based on the other cited registrations. In re Davey
Prods. Pty Ltd., 92 USPQ2d 1198, 1201-02 (TTAB 2009) (Board determined likelihood
of confusion with respect to only one of the two cited registrations). Conversely, if we
do not find a likelihood of confusion as to that mark and any of the services in the
’062 Registration, we would not find it as to the other cited marks, which contains
additional elements. In re St. Julian Wine Co., 2020 USPQ2d 10595, *3 (TTAB 2020)
(citing In re Max Capital Grp., Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010)).
Serial No. 88414408
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A. The Services, Channels of Trade, and Classes of Customers
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 DuPont,
177 USPQ at 567), while the third DuPont factor considers “the similarity or
dissimilarity of established, likely-to-continue trade channels.”’ Id. at 1052 (quoting
DuPont, 177 USPQ at 567). See also Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-63 (Fed. Cir. 2014). We begin with these
DuPont factors.
The services recited in the application are “restaurant services, including sit-down
service of food and take-out restaurant services.” The services at issue recited in the
’062 Registration are “take out restaurant services; restaurant services.” Applicant
argues that Registrant is primarily a gas station and convenience store whose
business model is to attract customers who want gasoline, whereas Applicant is
simply a restaurant whose business model is to attract customers who want to dine
in an Asian restaurant.9 Applicant reasons:
To find that the services are “identical”, as the Examining
Attorney does, requires plucking “restaurant services”
from the Registrant’s incidental or secondary services and
elevating them to primary or fundamental services, which
they are clearly not, and then use these mischaracterized
services as a comparison for the Applicant’s mark. That
move is not a way to show related services; it is a way to
show you can make services related.10

9 Appeal Brief, pp. 13-14 (6 TTABVUE 14-15).
10 Appeal Brief, p. 15 (6 TTABVUE 16).
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Applicant is mistaken. It is well settled that likelihood of confusion is determined on
the basis of the goods and services as they are identified in the application and
registration at issue. Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937,
16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of
registrability of an applicant’s mark must be decided on the basis of the identification
of goods [or services] set forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods [or services], the particular
channels of trade or the class of purchasers to which the sales of goods [or services]
are directed.”); Paula Payne Prods. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ
76, 77 (CCPA 1973) (“Trademark cases involving the issue of likelihood of confusion
must be decided on the basis of the respective descriptions of goods [or services].”). In
this appeal, the ’062 Registration identifies “restaurant services” without limitation
or qualification related to any of Registrant’s other identified goods and services, and
the recitation of services in this registration remains unchallenged.11
Where services are broadly identified in an application or registration (e.g.,
“restaurant services”), “we must presume that the services encompass all services of
the type identified.” Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025
(TTAB 2015) (where the services in an application or registration are broadly

11 An applicant may file for registration in more than one class by filing a single application.
See Trademark Rule 2.86, 37 C.F.R. § 2.86. The Board views a multiple-class application as
a series of individual applications (i.e., one for each class) combined into a single application.
Bad Boys Bail Bonds, Inc. v. Yowell, 115 USPQ2d 1925, 1928 n.3 (TTAB 2015). “As a general
matter, the filer of such an application is in the same position it would be had it filed several
single-class applications instead.” G & W Labs. Inc. v. GW Pharma Ltd., 89 USPQ2d 1571,
1574 (TTAB 2009).
Serial No. 88414408
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described, they are deemed to encompass all the goods of the nature and type
described therein), quoted in Country Oven, 2019 USPQ2d 443903 at * 4, and cited in
In re AC Webconnecting Holding B.V., 2020 USPQ2d 11048, *11-12 (TTAB 2020).
Thus, the broadly worded identification of “restaurant services” in the ’062
Registration necessarily encompasses all types of restaurant services, including
Asian, sit-down, and take-out restaurants, and restaurants affixed to gas stations.
See In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015)
(“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses
Registrant’s narrowly identified ‘residential and commercial furniture.”’). We find the
“restaurant services” recited in the ’062 Registration are identical to Applicant’s
“restaurant services, including sit-down service of food and take-out restaurant
services” as identified in the application.
In addition, because the services in the application and the ’062 Registration are
identical, there is no need for the Examining Attorney or the Board to further
consider the relatedness of Applicant’s services with the other goods and services
identified in the ’062 Registration. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 216
USPQ 937, 938-39 (Fed. Cir. 1983) (holding that a single good from among several
may sustain a finding of likelihood of confusion); Tuxedo Monopoly, Inc. v. Gen. Mills
Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (likelihood of confusion
must be found if there is likely to be confusion with respect to any item that comes
within the identification of goods or services in the application).
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Because the “restaurant services” identified in the application and the ’062
Registration are identical, we must presume that the channels of trade and classes of
purchasers for these services are the same. See In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012). Thus, we are not persuaded by Applicant’s
arguments that “Registrant caters to drivers; the Applicant caters to diners.”12 In re
Info. Builders Inc., 2020 USPQ2d 10444, * (TTAB 2020) (“Because . . . Applicant’s
and Registrant’s goods and services are legally identical in part, we must presume
that these goods and services travel through the same channels of trade and are
offered or rendered to the same or overlapping classes of purchasers.”) (citing Viterra,
101 USPQ2d at 1908; and In re Yawata Iron & Steel Co., 403 F.2d 752 , 159 USPQ
721, 723 (CCPA 1968)). See also DeVivo v. Ortiz, 2020 USPQ2d 10153, *13 (TTAB
2020) (citing, inter alia, Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004 (Fed. Cir. 2002)). Here, because the services are “restaurant
services,” the average customer is an ordinary consumer. See In re Inn at St. John’s,
LLC, 126 USPQ2d 1742, 1747 (TTAB 2018), aff’d mem., 777 F. App’x 516 (Fed. Cir.
2019).
We find that the identity of the services, and their presumed overlapping channels
of trade and consumers weigh heavily in favor of likelihood of confusion.

12 Appeal Brief, p. 16 (6 TTABVUE 17).
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B. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we consider “the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.” Palm Bay Imps. 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.” Inn at St. John’s, 126 USPQ2d at 1746 (quoting In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014)).
When comparing Applicant’s WIN WIN ASIAN KITCHEN composite word-and-
design mark to Registrant’s standard character mark, the proper test regarding
similarity “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.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed.
Cir. 2018) (quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal quotation marks and citation omitted)).
The proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of trademark marks. St. Julian Wine Co., 2020
USPQ2d 10595 at *4. Consumers may not necessarily encounter the marks in close
proximity and must rely upon their recollections thereof over time. In re Mucky Duck
Mustard, 6 USPQ2d 1467, 1468 (TTAB 1988). “Because the services at issue are
Serial No. 88414408
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‘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 marks
necessary to support a determination that confusion is likely declines.” In re
i.am.symbolic, llc, 127 USPQ2d 1627, 1630 (TTAB 2018) (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)).
The marks must be considered in their entireties, St. Julian Wine Co., 2020
USPQ2d 10595 at *4-5, 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.” Detroit
Athletic Co., 128 USPQ2d at 1050 (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985)).
In the case of a composite word-and-design mark such Applicant’s mark in this
appeal, “the words are normally accorded greater weight because they are likely to
make a greater impression upon purchasers, to be remembered by them, and to be
Serial No. 88414408
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used by them to request the [services].” In re Aquitaine Wine USA, LLC, 126 USPQ2d
1181, 1184 (TTAB 2018) (citing Viterra, 101 USPQ2d at 1908). “The verbal portion of
a word and design mark ‘likely will appear alone when used in text and will be spoken
when requested by consumers.”’ Id. (quoting Viterra, 101 USPQ2d at 1911). 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 portion of Applicant’s mark is WIN WIN ASIAN KITCHEN, the
element most likely to indicate the origin of the services with which it is used, Viterra,
101 USPQ2d at 1908, because it will be recalled and used when ordering and
recommending the identified restaurant services. The WIN WIN portion of
Applicant’s literal element is identical to Registrant’s WIN WIN mark, and would be
pronounced and heard identically when the marks are verbalized.
Applicant has disclaimed the wording ASIAN KITCHEN in recognition of its
descriptiveness, and disclaimed matter that is descriptive of or generic for a party’s
services is typically less significant or less dominant when comparing marks. See
Detroit Athletic Co., 128 USPQ2d at 1050 (citing Dixie Rests., 41 USPQ2d at 1533-34
Serial No. 88414408
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(Fed. Cir. 1997)). Moreover, 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”)), and the descriptive nature of ASIAN KITCHEN,
it is unlikely that consumers will rely on this term for purposes of distinguishing the
marks. See Aquitaine Wine USA, 126 USPQ2d at 1188 (“consumers often have a
propensity to shorten marks” when ordering goods or services orally); Detroit Athletic
128 USPQ2d at 1049 (“[N]on-source identifying nature of the words and the
disclaimers thereof constitute rational reasons for giving those terms less weight in
the analysis.”).
Applicant’s mark incorporates Registrant’s standard character mark in its
entirety, adding the term ASIAN KITCHEN, and the round design containing
Chinese characters and a kitchen basket. “Marks have frequently been found to be
similar where one mark incorporates the entirety of another mark, as is the case
here.” Coca-Cola Bottling Co. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188
USPQ 105, 106 (CCPA 1975) (BENGAL is similar to BENGAL LANCER); Johnson
Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ 155, 156 (TTAB 1982) (EBONY is similar to
EBONY DRUM); In re S. Bend Toy Mfg. Co., 218 USPQ 479, 480 (TTAB 1983) (LIL’
LADY BUG is similar to LITTLE LADY); see also TiVo Brands LLC v. Tivoli, LLC,
129 USPQ2d 1097, 1115 (TTAB 2019).
With regard to the term WIN WIN, Applicant argues:
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One meaning that is the same for both marks compared in
their entirety is a “win-win game” or a “no lose situation.”
However “Win Win” has a second meaning in front of
“Asian Kitchen.” In front of “Asian Kitchen,” “win win”
connotes a specific type of Asian Kitchen as if the wording
has been transliterated from the original Asian language.13
However, Applicant does not further explain the asserted second meaning of WIN
WIN in its mark, and no definition is of record. Moreover, Applicant has stated that
the non-Latin characters in the mark transliterate to “Yàzhou Chúfáng” which means
“Asian Kitchen” in English, so there is no reason to believe that consumers would
understand the non-Latin characters to be a transliteration of a specific type of Asian
Kitchen. Accordingly, we have no basis to find that WIN WIN possesses a meaning
in Applicant’s mark that differs from the commonly understood connotation of a
situation wherein everyone wins and no one loses. Used in connection with identical
restaurant services, we find that WIN WIN will not have a separate, distinguishable
connotation in Applicant’s composite mark from the registered WIN WIN mark. Thus,
Applicant’s mark connotes an Asian kitchen or restaurant where everyone wins and
no one loses. The registered WIN WIN mark carries similar connotations in
connection with its restaurant services. As a result, the marks are highly similar in
meaning or connotation.
As to appearance and stylization, Registrant’s WIN WIN mark is a standard
character mark, and marks appearing in standard character form may be displayed
in any font style, color, and size, including the identical stylization and color scheme

13 Appeal Brief, p. 12 (6 TTABVUE 13).
Serial No. 88414408
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of Applicant’s mark, because the rights reside in the wording and not in any
particular display or rendition. See SquirtCo v. Tomy Corp., 216 USPQ at 939 (“[T]he
argument concerning a difference in type style is not viable where one party asserts
rights in no particular display. By presenting its mark merely in a typed drawing, a
difference cannot legally be asserted by that party.”). Thus, we must consider
Registrant’s standard character mark “regardless of font style, size, or color”
Citigroup Inc. v. Capital City Bank Grp. Inc., 98 USPQ2d at 1259, including iterations
displaying the mark in the same or similar font, size, and color as the term WIN WIN
appears in Applicant’s composite mark. Aquitaine Wine USA, 126 USPQ2d at 1186-
87.14
We recognize the differences between the marks, namely, the wording ASIAN
KITCHEN as well as the red-and-white round design containing the disclaimed
Chinese characters and a kitchen basket that are not present in the cited WIN WIN
mark. Nonetheless, viewing the marks as a whole, the points of distinction do not
significantly diminish the strong similarities in connotation and overall commercial
impression engendered by these two marks for identical services. We find that
Applicant’s composite mark is more similar than dissimilar to Registrant’s WIN WIN
mark in terms of appearance, sound, connotation, and commercial impression. As a
result we find ordinary consumers may reasonably assume, due to presence of the
term WIN WIN in Applicant’s mark which comprises the totality of Registrant’s

14 Indeed, Registrant’s composite mark in cited Registration No. 5618175 presents the term
WIN WIN in white letters on a red background.
Serial No. 88414408
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mark, Applicant’s restaurant services offered under its mark emanate from the same
source as the identical services in the cited registration. As a result, consumers
encountering WIN WIN and could mistakenly believe that the latter is a
variation on the registered mark used to identify a particular type of restaurant, but
nonetheless emanating from a common source. See Bay State Brewing Co., 117
USPQ2d at 1961. Compare China Healthways Inst. Inc. v Wang, 491 F.3d 1337, 83
USPQ2d 1123, 1125 (Fed. Cir. 2007) (“Applying the DuPont factors to the marks
viewed in their entirety, the addition of the word ‘PLUS' in Wang’s mark is unlikely
to avoid the confusion for ‘Plus’ ordinarily connotes a related superior product, not
one from a different source.”). For these reasons, we find that the marks are similar.
The first DuPont factor thus also weighs in favor of finding a likelihood of confusion.
C. Conclusion
When we consider the record and the relevant likelihood of confusion factors, and
all of Applicant’s arguments relating thereto, we conclude that presumed identical
ordinary consumers who are familiar with Registrant’s “restaurant services” offered
under its WIN WIN mark would be likely to believe, upon encountering Applicant’s
proposed mark, that the identical services, offered through presumed
identical trade channels, originated with or are associated with or sponsored by the
same entity.
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III. Decision
The refusal to register Applicant’s composite mark is affirmed.