THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: August 6, 2014 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board ________ In re Gold Crust Baking Company ________ Serial Nos. 85678105 and 85691267 _______ Andrew C. Aitken for Gold Crust Baking Company. Janet Lee, Trademark Examining Attorney, Law Office 102 (Mitchell Front, Managing Attorney). _______ Before Quinn, Ritchie and Wolfson, Administrative Trademark Judges. Opinion by Quinn, Administrative Trademark Judge: Gold Crust Baking Company (“Applicant”) filed applications to register the mark GOLD CRUST BAKING COMPANY (in standard characters) (“BAKING COMPANY” disclaimed),1 and the mark shown below 1 Application Serial No. 85678105, filed July 16, 2012 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), alleging first use anywhere and first use in commerce on March 1, 2000. Application Serial Nos. 85678105 and 85691267 (“BAKING COMPANY, INC.” disclaimed).2 The identification of goods in each application reads “bakery goods, namely, bread and buns” in International Class 30. The Trademark Examining Attorney refused registration in each application under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that each of Applicant’s marks, when used in connection with Applicant’s goods, so resembles the previously registered mark shown below (“CARIBBEAN BAKERY & GRILL” disclaimed) for “restaurant services featuring Caribbean style foods” in International Class 43,3 as to be likely to cause confusion. When the Trademark Examining Attorney issued a final refusal, Applicant appealed and requested reconsideration. The Examining Attorney denied the request for reconsideration, and the appeal resumed. The Board, on April 4, 2014, granted the Examining Attorney’s request to consolidate the appeals, and we will decide the appeals in this single opinion. 2 Application Serial No. 85691267, filed July 31, 2012 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), alleging first use anywhere and first use in commerce on March 1, 2000. The application includes the following description of the mark: “The mark consists of the words Gold Crust Baking Company, Inc. with the words Baking Company, Inc. within a banner and stalks of wheat above and below the banner.” 3 Registration No. 2994753, issued September 13, 2005; Sections 8 and 15 combined declaration accepted and acknowledged. The registration indicates that Registrant owns Registration Nos. 2007993; 2651784; and others. 2 Application Serial Nos. 85678105 and 85691267 Applicant argues that the marks, and the goods and services offered thereunder, are different. Applicant also contends that the cited mark is lacking in distinctiveness and, therefore, is entitled to only a narrow scope of protection. Further, Applicant relies upon the absence of any instances of actual confusion between the marks. Applicant introduced the declaration of its attorney, accompanied by excerpts of third-party websites, as well as copies of third-party registrations. The Examining Attorney maintains that the marks are similar, and that the goods and services are related. In support of the refusals, the Examining Attorney introduced dictionary definitions,4 third-party registrations, and excerpts from third-party websites. Our determination of the issue of likelihood of confusion is based on an analysis of all of 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). In any likelihood of confusion analysis, however, 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). 4 These definitions include ones attached to the Examining Attorney’s brief, and of which the Examining Attorney requested the Board to take judicial notice. The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). See In re Thomas White Int’l Ltd., 106 USPQ2d 1158, 1160 n.1 (TTAB 2013). 3 Application Serial Nos. 85678105 and 85691267 We first turn to consider the second du Pont factor regarding the similarity/dissimilarity between the goods and services. It is well settled that the goods and services of the parties need not be identical or competitive, or even be offered through the same channels of trade, to support a holding of likelihood of confusion. It is sufficient that the respective goods and services of applicant and registrant are related in some manner, and/or that the conditions and activities surrounding the marketing of the goods and services are such that they would or could be encountered by the same persons under circumstances that could, because of the similarity of the marks, give rise to the mistaken belief that they originate from the same source. See Hilson Research, Inc. v. Society for Human Resource Management, 27 USPQ2d 1423 (TTAB 1993); In re International Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). Contrary to the gist of one of Applicant’s arguments, the issue here is not whether purchasers would confuse the goods and services, but rather whether there is a likelihood of confusion as to the source of these goods and services. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); and In re Rexel Inc., 223 USPQ 830 (TTAB 1984). While likelihood of confusion has often been found where similar marks are used in connection with both food or beverage products and restaurant services, there is no per se rule to this effect. See Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987 F.2d 766, 768, 25 USPQ2d 2027, 2030 (Fed. Cir. 1993). Thus, the relatedness of such goods and services may not be assumed and the evidence of record must show “something more” than that similar or even identical marks are used for food 4 Application Serial Nos. 85678105 and 85691267 products and for restaurant services. In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003) (quoting Jacobs v. Int’l Multifoods Corp., 668 F.2d 1234, 1236, 212 USPQ 641, 642 (CCPA 1982)). See also In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). See generally TMEP § 1207.01(a)(ii)(A) (2014). We observe that the Board has found the “something more” requirement to be met where the applicant’s mark made clear that its restaurant specialized in registrant’s type of goods, In re Accelerate s.a.l., 101 USPQ2d 2047, 2050-51 (TTAB 2012) (COLOMBIANO COFFEE HOUSE, for providing food and drink, likely to cause confusion with the registered certification mark COLOMBIAN, for coffee, given the inclusion of COFFEE HOUSE in applicant’s mark, third-party registrations covering both restaurant or café services and coffee beverages, and because coffee houses specialize in coffee beverages), In re Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB 1999) (AZTECA MEXICAN RESTAURANT for restaurant services confusingly similar to AZTECA for Mexican food items), In re Golden Griddle Pancake House Ltd., 17 USPQ2d 1074 (TTAB 1990) (GOLDEN GRIDDLE PANCAKE HOUSE for restaurant services confusingly similar to GOLDEN GRIDDLE for table syrup); where the record showed that registrant’s wines were actually sold in applicant’s restaurant, In re Opus One Inc., 60 USPQ2d 1812 (TTAB 2001) (OPUS ONE for wine confusingly similar to OPUS ONE for restaurant services); or where the mark was found to be “a very unique, strong mark,” In re Mucky Duck Mustard Co. Inc., 6USPQ2d 1467, 1469 (TTAB 5 Application Serial Nos. 85678105 and 85691267 1988) (MUCKY DUCK for mustard confusingly similar to MUCKY DUCK for restaurant services). Cf. In re Giovanni Food Co., 97 USPQ2d at 1992. The Examining Attorney submitted an excerpt of a website stating the following: Comprised of more than 7,000 islands, not all inhabited, a common bond found among the populated countries of the Caribbean is bread … there is no single type of bread that binds the various islands. Breads that are baked, fried, spicy and some – even poisonous if not prepared correctly – can all be found in the Caribbean.” (<ehow.com>) The Examining Attorney also furnished 10 third-party registrations showing that the same entity has registered a single mark for both restaurant services and bakery goods. (Denial of Request for Reconsideration, 12/14/13). Further, the record includes excerpts of 20 third-party websites for restaurants (15 of which appear to feature Caribbean-style cuisine) showing that they, along with cafes, bistros and the like, all list breads and other baked products among their offerings, sold through an on-site bakery. (Office actions, 11/8/12 and 5/22/13). Likewise, an excerpt of Registrant’s website shows that Registrant sells breads at its restaurant and bakery. Applicant countered with the declaration of Andrew Aitken, Applicant’s attorney in this case. In pertinent part, Mr. Aitken’s searches of the USPTO electronic database reveal the following results: 31,449 live registrations and applications for restaurant services; 704 of these records also list bread in the identification. Mr. Aitken thus concludes that live registrations and applications 6 Application Serial Nos. 85678105 and 85691267 that cover both restaurant services and bread reflect only 2.2% of the total number for restaurants. Drawing from these numbers, Applicant contends that most restaurants do not separately brand breads or buns that may be served at these establishments.