Tuesday, September 29, 2009

WYHA? TTAB Finds "LUCA'S CHOPHOUSE" Confusingly Similar to "LUCA PIZZA"

In this enervating Section 2(d) appeal, the Board affirmed a refusal to register the mark LUCA'S CHOPHOUSE & Design for "restaurant and bar services," finding it likely to cause confusion with the registered marks LUCA PIZZA and LUCA PIZZA DI ROMA for restaurant services. Applicant trotted out several feeble arguments, which the Board promptly chopped down. In re Luca’s Chophouse LLC, Serial No. 77335047 (September 15, 2009) [not precedential].

The Board first noted that the involved services overlap. Applicant argued, irrelevantly, that Registrant's restaurants are "casual style eateries specializing in pizza that are frequently located in shopping malls," while applicant operates "a single restaurant that is 'an upscale fine dining establishment' offering 'a full service bar and live dinner entertainment such as small jazz/singing groups' and providing table service by wait staff." Of course, the Board pointed out that it must look to the services as recited in the involved application and registration, regardless of what the evidence shows the services to be.

Because the recited services are in part identical, the Board must presume that they are offered offered in the same channels of trade to the same classes of consumers.

As to the marks, the names LUCA'S and LUCA are clearly the dominant elements of the respective marks, since CHOPHOUSE, PIZZA, and PIZZA DI ROMA are "generic terms for the goods sold in the restaurant."

The registered marks are in standard character form (not in "standardized font," as Applicant alleged), and therefore the Board must consider each registered mark "in all reasonable manners in which it may be displayed." Applicant did not argue that the oval background in its mark is a distinguishing feature.

Applicant asserted that "Luca" is a "fairly common name for individuals from the Mediterranean Area," but it provided no evidence to support that statement and no evidence that others use the mark LUCA in the restaurant or food service field. In fact, Applicant stated that it “is unaware of any other restaurant [than its own] with the name Luca contained in it.”

Finally, Applicant claimed a lack of any actual confusion, but the Board noted that Applicant's restaurants are in Michigan, where Registrant does not have restaurants. Thus there has been no opportunity for confusion to occur.

Considering the relevant du Pont factors, the Board found confusion likely, and it affirmed the Section 2(d) refusal.

TTABlog comment: Do you think there was a snowball's chance in Hell, Michigan, that this refusal would be overturned?

PS: Registrant operates in Indiana, Ohio, and Texas.

Text Copyright John L. Welch 2009.


At 8:09 AM, Anonymous Anonymous said...

Also, Luca Pizza is owned by Luca Brazzi; he filed an Opposition that the Board "could not refuse"


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