TTAB Finds Restaurant Services and Food and Beverage Items Related, Affirms 2(d) Refusal of ST. JOE'S COFFEE
We know that, for Section 2(d) purposes, pretty much all beverages are related and all snack foods are related. Now it appears that numerous food and beverage products are also related to restaurant services. Third-party registration and website evidence led the Board to affirm a Section 2(d) refusal to register the mark ST. JOE'S COFFEE for a variety of food products, including coffee, pastries, and smoothies [COFFEE disclaimed], on the ground of likelihood of confusion with the registered mark ST JOE for hotel, restaurant, and dining services. In re Gabriel Miller & Jason Miller, Serial No. 77855808 (November 3, 2011) [not precedential].
As to the similarity of the marks at issue here, the Board found that this "critical" du Pont factor points to a finding of likely confusion. Not a surprise.
As to the involved goods/services, the Board has repeatedly observed that there is no per se rule that food and beverage items are related to restaurant services for Section 2(d) purposes. "Something more" must be shown than just the similarity or identity of the marks. Here, the Board found that Examining Attorney Meghan Reinhart "carefully established something more:" the evidence demonstrated a "close relationship between coffee and restaurant services with some of the larges franchise operations in the country" [e.g., DUNKIN DONUTS and STARBUCKS]; between other beverage and food items, and restaurant services [e.g., MAUI WOWI and COLLEGE HILL COFFEE CO.]; and between various pastries/bakery items and restaurant services [e.g., THE CHEESECAKE FACTORY, COCO'S BAKERY, THE CUPCAKERY, and TOBIES RESTAURANT AND BAKERY].
In addition, the Examining Attorney submitted third-party registrations that listed both hotel, dining, and/or restaurant services, on the one hand, and coffee, hot chocolate, bakery goods, and smoothies, on the other hand [e.g., BR BASKIN ROBBINS, CALIFORNIA PIZZA KITCHEN, AUNTIE ANNE'S PERFECT PRETZEL]. [As we know, under Albert Trostel and Mucky Duck, third-party registrations may have some probative value in suggesting that the listed goods and/or services are of a type that may emanate from a single source.
The Board therefore found that the Applicant's "food and beverage items are closely related to registrant's types of restaurant and dining services." Moreover, there is a "significant overlap" in channels of trade, and the classes of consumers are the same.
The Board therefore concluded that confusion is likely, and it affirmed the Section 2(d) refusal.
TTABlog comment: Does this mean that, for Section 2(d) purposes, restaurant services are related to any and every food and beverage item served in restaurants?
Text Copyright John L. Welch 2011.