Wednesday, August 13, 2014

Finding Chickpeas Related to Restaurants, TTAB Sustains PITA PAL Opposition

The Board sustained a Section 2(d) opposition to registration of the mark PITA PAL - THE ART OF HEALTHY EATING & Design for "falafel; processed chickpeas; processed garbanzo beans," finding the mark likely to cause confusion with the registered mark THE ART OF EATING HEALTHY for "restaurants." Although opposer's survey evidence failed to pass mustard, the Board found the goods and services related, the marks similar, and the channels of trade overlapping. Pita Jungle – Tempe, Inc. v. Pita Pal Foods, LP, Opposition No. 91204422 (July 24, 2014) [not precedential].

The Board observed the there is no per se rule holding that restaurant services and food items are related for purposes of a likelihood of confusion determination. One claiming likelihood of confusion must show “something more.” Jacobs v. International Multifoods Corp., 668 F.2d 1234, 212 USPQ 641, 642 (CCPA 1982).

Opposer’s restaurant’s offers food “based upon a Mediterranean diet and … includes substantial amounts of hummus, falafel, chick peas and garbanzo beans as well as a lot of grains, olive oil, vegetables, fish, chicken and pita pocket bread.” The Board found that opposer had satisfied the “something more” requirement in two ways. First, “pita” describes a type of food often eaten with applicant’s goods and a type of food served at applicant’s restaurants. Thus there is an “undeniable connection” between applicant’s goods and opposer’s services. Second, Opposer’s restaurants offer takeout and catering services that feature the same food items for which Applicant seeks registration: “Applicant’s processed chickpeas and garbanzo beans (essentially hummus) and falafel are related to Opposer’s restaurant services which offer all of those foods, as well as the pita identified in Applicant’s mark, for takeout.”

The normal channels of trade for applicant’s goods and Opposer’s restaurants “are likely to overlap, as both parties would be expected to market their respective goods and services through the same advertising channels to consumers interested in hummus, falafel and related products.”

As to the marks, applicant’s mark is comprised of a slight variation of Opposer’s mark (THE ART OF HEALTHY EATING rather than THE ART OF EATING HEALTHY) combined with the term PITA PAL, in which PITA is disclaimed. In Applicant’s mark, the slogan THE ART OF HEALTHY EATING makes a separate commercial impression from the rest of the mark. Moreover, the term PITA PAL is at best suggestive of applicant’s goods.

Opposer offered the results of a survey involving the interviews of 26 or 27 customers in each of its 17 PITA JUNGLE locations, for a total of 446 interviews. Opposer’s expert concluded that applicant’s mark caused 30% of survey respondents to be confused by applicant’s mark.

The Board, however, did not find the survey to be reliable. The survey did not include any control, i.e., the survey expert did not use a “test cell” and a “control cell.” The universe of interviewees was skewed because it included only customers who were leaving opposer’s restaurant, and they were questioned immediately after being exposed to Opposer’s marks. Moreover, the extent of the expert’s experience with trademark surveys was unclear, and his qualifications were not impressive. And the key question in the survey was leading.

Giving the benefit of any doubt to the registrant, the Board found confusion likely, and it sustained the opposition.

Read comments and post your comment here.

TTABlog note:  So what do you think?

Text Copyright John L. Welch 2014.


At 8:30 AM, Anonymous Paul Reidl said...

Personally, I think that the Board's views of "something more" just cannot be squared with the Federal Circuit's decision in Coors. There was a time when Federal Courts had the broader view of relatedness. Today, however, we are seeing cases won at the TTAB that would never pass mustar(d) in Federal Courts.


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