Daniele & Sons, Inc.v.33 Subs, Inc.

Trademark Trial and Appeal Board

Jun 28, 2016

No. 91219007 (T.T.A.B. Jun. 28, 2016)

MW Mailed: June 28, 2016 Opposition No. 91219007 Daniele & Sons, Inc. v. 33 Subs, Inc. Before Quinn, Zervas, and Bergsman, Administrative Trademark Judges. By the Board: On October 23, 2015, Daniele & Sons, Inc. (“Opposer”) filed a consolidated notice of opposition to the registration of application Serial No. 86242067 for the standard character mark GREAT WAZU and application Serial No. 86242071 for the standard character mark THE ORIGINAL GREAT WAZU. Both applications identify the following services in International Class 43: “Café services; Delicatessen services; Restaurant services; Take-out restaurant services.”1 As grounds for opposition, Opposer alleges likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on prior common law use of the mark GREAT WAZU in connection 1 Application Serial No. 86242067 was filed on April 3, 2014, based on use in commerce under Section 1(a), 15 U.S.C. § 1051(a), and claiming a date of first use of April 10, 1982 and a date of first use in commerce of April 13, 1982. Application Serial No. 86242071 was filed on April 3, 2014, based on use in commerce under Section 1(a), 15 U.S.C. § 1051(a), and claiming dates of first use and first use in commerce at least as early as 2010. UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451 General Contact Number: 571-272-8500 THIS OPINION IS NOT A PRECEDENT OF THE TTAB Opposition No. 91219007 2 with “a takeout sandwich shop and deli.” 1 TTABVUE at 4. In its answer, Applicant denied the salient allegations in the notice of opposition. This case now comes before the Board for consideration of Opposer’s motion (filed February 24, 2016) for summary judgment. On March 30, 2016, Applicant filed its response to the motion.2 On April 11, 2016, Opposer filed a reply brief. Both parties filed additional papers related to the motion. While the Board has considered Applicant’s arguments in response to Opposer’s evidentiary objections, we have not considered the evidence attached to Applicant’s surreply brief (filed April 27, 2016) or Opposer’s sur-surreply brief.3 See Trademark Rule 2.127(e)(1); Pioneer Kabushiki Kaisha v. Hitachi High Technologies, 73 USPQ2d 1672, 1677 (TTAB 2005) (pursuant to Rule 2.127, opposer’s surreply to applicant’s motion was not considered); see also, Seay v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003) (evidence submitted with reply brief not considered). Opposer, in the notice of opposition, avers the following facts based on its information and belief: - In April, 1982, Anthony Daniele began using the GREAT WAZU mark in connection with a sandwich shop;4 2 Contrary to Opposer’s contention, Applicant’s response to the motion for summary judgment is timely under Trademark Rule 2.119(c) inasmuch as it was filed within 35 days of service of the summary judgment motion, which was by served by overnight courier. 3 We note that Robert Schaffer, the declarant in Applicant’s substitute declaration attached to its surreply brief, was not identified by Applicant as a witness or a person with knowledge of the facts in response to Opposer’s interrogatory Nos. 3 and 18 or any other interrogatory. Under Fed. R. Civ. P. 26(e), a party has a duty to supplement discovery responses in a timely manner. A party who fails to disclose information or identify a witness is subject to the preclusion sanction set forth in Fed. R. Civ. P. 37(c)(1). 4 Notice of Opposition at ¶ 7. Opposition No. 91219007 3 - In late 1985, Anthony’s brother, Joseph Daniele, principal of Opposer, began using the same mark in connection with a separately-owned sandwich shop and deli and has used the mark continuously since that date;5 - In 1986, Anthony Daniele conveyed his sandwich shop to his older brother, Gerald Daniele, and Robert Schafer, who later formed the entity Buddmen, Inc.;6 - In 1997, the store operated by Buddmen, Inc., was destroyed by fire. Subsequently, Gerald Daniele began working at Opposer’s store;7 - Some time thereafter, Gerald Daniele and Buddmen, Inc. opened a different foodservice business in another location and began using the mark THE ORIGINAL GREAT WAZU in January, 2010;8 and - In late 2013 or early 2014, Buddmen, Inc. sold the store to Applicant, 33 Subs, Inc.9 Opposer argues that summary judgment is appropriate in this case because, based on Applicant’s admissions under Fed. R. Civ. P. 36(a)(3) and the lack of documentary evidence produced by Applicant in discovery, there are no genuine disputes of material fact that (1) the subject marks GREAT WAZU and THE ORIGINAL GREAT WAZU are likely to be confused with Opposer’s mark; (2) Opposer has been using the mark GREAT WAZU as a trademark for its sandwich shop and delicatessen services since as early as September 10, 1985; (3) Applicant did not use the subject marks in commerce prior to 2012; and (4) the services identified in the subject applications are the same as Opposer’s services and are provided through the same channels of trade. 5 Id. at ¶¶ 8-12. 6 Id. at ¶ 13. 7 Id. at ¶¶ 22, 24. 8 Id. at ¶¶ 25-27. The parties agree that the store operated by Buddmen, Inc. was destroyed by fire in 1997. However, neither party identifies the date that Buddmen, Inc. opened another store. 9 Id. at 29. Opposition No. 91219007 4 Applicant contends that Opposer is not entitled to summary judgment on the issue of priority because Opposer’s use of its mark since 1985 has been through the grant of a license, which is still in operation, from Applicant’s predecessor in interest, Anthony Daniele. In addition, Applicant argues that, because Opposer assigned rights in the mark to Applicant, there is a genuine dispute of material fact regarding Opposer’s ownership in the mark and its standing to bring the opposition. Applicant further argues that summary judgment with respect to application Serial No. 86242071 is inappropriate because there is no evidence in the record that the mark THE ORIGINAL GREAT WAZU is likely to be confused with Opposer’s mark GREAT WAZU. In its reply brief, Opposer argues that all documents submitted as exhibits to Applicant’s reply brief are barred from consideration on summary judgment because Applicant failed to produce any documents in response to Opposer’s specific interrogatories and document requests or in response to the Board’s order granting Opposer’s motion to compel. In addition, the declaration of Vincent Suppa, President of Applicant, is made upon information and belief and not based on his personal, firsthand knowledge of the facts set forth in the declaration. Thus, Opposer contends, the information is hearsay and should not be considered. Opposer further argues that, even if Applicant’s evidence is given consideration, Applicant has not provided sufficient evidence of priority of use because Applicant has provided no evidence that shows any transfer of rights in the mark GREAT WAZU to Buddmen, Inc., Applicant’s predecessor in interest. Opposition No. 91219007 5 Applicant, in its surreply brief, argues that “the discovery-related issues brought up by Opposer have been previously addressed by Applicant” and that Opposer’s characterization of the declaration of Mr. Suppa is incorrect.10 The Pleadings As an initial matter, a decision on summary judgment necessarily requires a review of the operative pleadings in this case. Upon review of the notice of opposition, the Board finds that Opposer’s pleading is legally sufficient to the extent that it contains sufficient allegations which, if proven, would establish Opposer’s standing as well as its claim of likelihood of confusion. The Record In support of its motion for summary judgment, Opposer submitted, among other things, the following exhibits: (1) Applicant’s answers to Opposer’s first set of interrogatories; (2) Applicant’s objections to each of Opposer’s documents requests; (3) Applicant’s amended answers to Opposer’s requests for admission;11 and (4) the declaration of Joseph Daniel, principal owner of Opposer, attesting to Opposer’s continuous use of the mark as a trade name and mark since at least September 10, 1985 and introducing Opposer’s “Certificate of Trade Name” from Morris County, New Jersey.12 10 18 TTABVUE at 4. 11 15 TTABVUE 167-184. 12 Id. at 209-10. The Board notes that Opposer’s Exhibits A, B, F, G, H, and J to the Shorrock declaration are unnecessary and duplicative because they consist of filings that are already in the record of the proceeding and available to view on the Board’s webpage via TTABVUE. Opposer is advised that, instead of attaching all referenced background information to the motion, the better practice is to cite to the TTABVUE document entry and page number(s). Opposition No. 91219007 6 With its response brief, Applicant submitted the declaration of its president, Vincent Suppa, attesting to Applicant’s use of the mark and the chain of ownership of the mark with accompanying exhibits.13 The exhibits include (1) a contract, dated November, 2013, for the sale of THE GREAT WAZU restaurant in East Hanover, New Jersey from Buddmen, Inc. to Applicant, 33 Subs, Inc.;14 (2) a document assigning “all right title and interest” in the trademark THE GREAT WAZU from Gerald Daniele to Applicant;15 and (3) a document identifying Joseph Daniel as “an owner of an unregistered trademark” THE GREAT WAZU and assigning “the right to use” said trademark to Applicant.16 Evidentiary Issues Before addressing the merits of Opposer’s motion for summary judgment, the Board considers the evidentiary objections raised by Opposer in its reply brief. We turn first to Opposer’s argument that the exhibits submitted with Applicant’s responsive brief should be barred from consideration because they were not produced in response to Opposer’s discovery requests. By way of background, Opposer served its first sets of interrogatories, document requests, and requests for admission on January 29, 2015. On June 3, 2015, the Board granted Opposer’s uncontested motion (filed April 27, 2015) to compel discovery in view of Applicant’s failure to serve its initial disclosures or respond to Opposer’s discovery requests. The Board ordered Applicant to “respond to the 13 16 TTABVUE 33-37. 14 Id. at 39-48. 15 Id. at 53. 16 Id. at 56. Opposition No. 91219007 7 interrogatories and document requests in full and without objection on the merits.”17 On July 6, 2015, Applicant served its answers, including objections, to Opposer’s interrogatory requests and requests for admissions.18 In addition, Applicant served only its objections to Opposer’s document requests.19 On November 3, 2015, the Board denied Opposer’s motion (filed July 7, 2015) for judgment sanctions. On November 25, 2015, Opposer sent a letter to Applicant requesting specific responses to Opposer’s interrogatories and document requests and clarifying the meaning of “the mark WAZU” in Opposer’s document requests.20 Discovery in this proceeding closed on January 29, 2016. “A party that has refused (even rightfully) to produce information sought in a discovery request may not thereafter rely on the information as evidence on its behalf.” Presto Products Inc. v. Nice-Pak Products Inc., 9 USPQ2d 1895, 1897 n.5 (TTAB 1988) (evidence objected to on grounds of attorney-client privilege but submitted on summary judgment stricken). See also, Fed. R. Civ. P. 37(c)(1). Here, Applicant seeks to introduce evidence on summary judgment that was clearly sought by Opposer in discovery and that Applicant failed to produce in response to a the Board’s order compelling responses and production of documents. Opposer’s interrogatories requesting that Applicant identify relevant documents include the following: 2. Set forth all facts, and identify all documents that refer or relate to Your acquisition of any rights in the Subject Mark; 17 7 TTABVUE at 2. 18 15 TTABVUE 169-72, 178-83. 19 Id. at 174-176. 20 Id. at 191-94. Opposition No. 91219007 8 10. Identify any messagees, statements, comments, questions, memoranda or other documents or communications which refer to Opposer or any other entity using the term WAZU; 17. Identify all documents upon which Applicant intends to rely at the hearing of this proceeding.21 Despite the Board’s order to provide full responses without objection within thirty days of the June 3, 2015 order, Applicant submitted various objections to the interrogatories and offered to provide information “at a mutually agreeable place and time” or at some time “prior to hearing.”22 In response to Opposer’s requests for documents establishing Applicant’s date of first use and documents referring to any transfer of rights in the mark WAZU, Applicant objected to each document request as “unduly burdensome and unlikely to lead to the discoverable[sic] of admissible evidence in that ‘WAZU’ (an undefined term for these requests) is not the subject matter of this opposition.”23 In addition, Applicant did not respond to Opposer’s November 25, 2015 letter identifying the deficiencies in Applicant’s discovery responses. Discovery closed over a year after Opposer served its discovery requests and Applicant still had not produced the information on which it seeks to rely on summary judgment. Under the circumstances, there is no excuse for Applicant’s failure to produce in discovery the few documents which it now seeks to introduce in response to Opposer’s summary judgment motion. Opposer had no reason to believe Applicant would 21 15 TTABVUE 51-53. 22 15 TTABVUE 169-72, 178-83. 23 Id. at 174-176. Opposition No. 91219007 9 produce information or documents after the close of discovery that Applicant failed to produce in response to the Board’s order compelling production or in response to Opposer’s November 25, 2015 letter requsting supplemental responses and production of documents. See, e.g., Panda Travel v. Resort Opotion Enterprises Inc., 94 USPQ2d 1789, 1792 (TTAB 2009).24 The Board’s denial of Opposer’s motion for judgment sanctions did not absolve Applicant of its obligation to produce documents responsive to Opposer’s interrogatories and document requests in a timely manner. See Fed. R. Civ. P. 26(e)(1)(A). Accordingly, Opposer’s objection to the introduction of Exhibits A and B to the declaration of Vincent Suppa as evidence is sustained. With respect to Opposer’s objection to portions of the declaration of Vincent Suppa because they were not made on the declarant’s personal knowledge, the objection is well taken. Pursuant to Fed. R. Civ. P. 56(c)(4), an affidavit or declaration used to support or oppose a motion for summary judgment must be made on personal knowledge and show that the affiant or declarant is competent to testify on the matters stated. Inasmuch as paragraphs 4 to 16 of the declaration of Vincent Suppa are made on Mr. Suppa’s “information and belief” and not his personal knowledge, and there is no evidence that Mr. Suppa had firsthand knowledge of the facts set forth in these paragraphs, Opposer’s objection to paragraphs 4 to 16 of the declaration of Vincent Suppa is sustained. See Ava Ruha Corp. v. Mother’s Nutritional Center, Inc., 113 24 It strains credulity for Applicant to contend that its failure to produce any documents after the Board’s order compelling production was due to Opposer’s failure to follow up on its November 25, 2015 letter or to accept Applicant’s response that it would “produce documents at a mutually convenient time and place.” 16 TTABVUE at 5. Opposition No. 91219007 10 USPQ2d 1575, 1578 (TTAB 2015) (under Fed. R. Civ. P. 56(c)(4), Board may not consider portions of affidavit or declaration not based on personal knowledge). Turning to Opposer’s requests for admissions, because Applicant did not provide Opposer with its written answers to the requests in a timely manner, the requested admissions are deemed admitted by operation of law. Fed. R. Civ. P. 36(a)(3); see Fram Trak Industries v. Wiretracks, LLC, 77 USPQ2d 2000, 2005 (TTAB 2006).25 While Applicant served Opposer with late answers to the requested admissions, Applicant neither moved to reopen its time to respond to the admission requests under Fed. R. Civ. P. 6(b)(2), nor moved to withdraw and amend its admissions pursuant to Fed. R. Civ. P. 36(b). In addition, Applicant has introduced no evidence on summary judgment that contradicts the admissions that are deemed admitted by operation of law. Accordingly, the requests for admission stand admitted. Summary Judgment We now turn to the merits of Opposer’s motion for summary judgment on the ground of likelihood of confusion. Summary judgment is an appropriate method of disposing of cases in which there are no genuine disputes as to any material facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment, the evidentiary record and all justifiable inferences to be drawn from the undisputed facts must be viewed in the light most favorable to the non-moving party. See Lloyd’s Food Products Inc. v. Eli’s Inc., 987 F.2d 766, 25 USPQ2d 2027, 2029-30 (Fed. Cir. 1993); Olde Tyme Foods Inc. v. 25 See also, Board’s order, dated June 3, 2015. Opposition No. 91219007 11 Roundy’s Inc., 961 F.2d 200, 22 USPQ2d 1542, 1546 (Fed. Cir. 1992). The Board may not resolve disputes of material fact; it may only ascertain whether a genuine dispute regarding a material fact exists. See Lloyd's Food Products, 25 USPQ2d at 2029; Old Tyme Foods, 22 USPQ2d at 1544. A party moving for summary judgment has the burden of demonstrating a particular fact cannot be disputed by citing to particular parts of materials in the record, including affidavits or declarations, admissions or interrogatory answers; or showing that the cited materials do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). See generally Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). For Opposer to prevail on summary judgment, there must be a demonstration that there are no genuine disputes of material fact as to Opposer’s claim of likelihood of confusion. See Hornblower & Weeks, Inc. v. Hornblower & Weeks, Inc., 60 USPQ2d 1733, 1735 (TTAB 2001). Applicant, as the nonmoving party may not rest on mere allegations, but must designate specific portions of the record or produce additional evidence showing the existence of a genuine dispute of material fact for trial. See Venture Out Properties LLC v. Wynn Resort Holdings LLC, 81 USPQ2d 1887, 1890 (TTAB 2007); see also, Fed. R. Civ. P. 56(c)(1). Standing In every inter partes case before the Board, a plaintiff must prove its standing. Ritchie v. Simpson, 171 F.3d. 1092, 50 USPQ2d 1023, 1025-26 (Fed. Cir. 1999); see Opposition No. 91219007 12 also, Sinclair Oil Corp. v. Kendrick, 85 USPQ2d 1032, 1037 (TTAB 2007) (at summary judgement, opposer must not only establish a valid ground, but also must prove its standing). A plaintiff must plead, and ultimately prove, that it has a “real interest,” i.e., a direct and personal stake, in the outcome of the proceeding, as well as a “reasonable basis” for its belief of damage. Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1063 (Fed. Cir. 2014); Ritchie v. Simpson, 50 USPQ2d at 1025-26; Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). There is no requirement that actual damage be pleaded. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Books on Tape Inc. v. Booktape Corp., 836 F.2d 519, 5 USPQ2d 1301, 1302 (Fed. Cir. 1987). However, the allegations in support of a plaintiff’s belief of damage must have a “reasonable basis in fact.” Ritchie v. Simpson, 50 USPQ2d at 1027; TBMP § 309.03(b). In this case, Opposer has established its standing to maintain the proceeding through the testimony of Joseph Daniele that Opposer is the prior user of a confusingly similar mark for the same or related services. Hunt Control Systems Inc. v. Koninklijke Philips Electronics N.V., 98 USPQ2d 1558, 1565 (TTAB 2011) (prior use established by testimony and conceded by applicant); Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1118 n.8 (TTAB 2009) (use of mark established by testimony sufficient to show reasonable belief of damage even though use “purportedly based on a license which has not been clearly established in Opposition No. 91219007 13 evidence”). Therefore, there is no genuine dispute of material fact as to Opposer’s standing. Priority of Use We next examine Opposer’s claim that there is no genuine dispute that it has established priority by proving that it first used the mark GREAT WAZU in commerce at least as early as September 10, 1985. “To establish priority, the petitioner must show proprietary rights in the mark that produce a likelihood of confusion. These proprietary rights may arise from a prior registration, prior trademark or service mark use, prior use as a trade name, prior use analagous to trademark or service mark use, or any other use sufficient to establish proprietary rights.” Herbko International Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir. 1378). Opposer’s evidence in support of its claim of priority of use consists of the declaration of Joseph Daniele, owner of Daniele & Sons, attesting to the continuous use of “THE GREAT WAZU” as a “trade name and mark” in connection with a sandwich shop and delicatessen since at least as early as September 10, 1985.26 Opposer’s certificate of registration of the trade name GREAT WAZU, while probative of Opposer’s intent to use the mark as a trade name, does not support Opposer’s claim of priority of use because it is only evidence that the name was registered. It does not establish that the mark was in use in commerce in connection with the services as a trade name or trademark at any time on or after the date the trade name was 26 15 TTABVUE 209-10. Opposition No. 91219007 14 registered. See, e.g., Liqwacon Corp. v. Browning-Ferris Industries, Inc., 203 USPQ 305, 308 (TTAB 1979) (the mere act of incorporation does not establish priority of use). However, it is settled that testimony evidence alone may be sufficient to establish prior and continuous use if it is based on personal knowledge of the facts, it is clear and convincing, and it has not been contradicted. See National Blank Book Co. v. Leather Crafted Products, Inc., 218 USPQ 827, 828 (TTAB 1983); Liqwacon Corp. at 316. Here, Joseph Daniele’s statements are made based upon his personal knowlege of the facts as the owner of Opposer since its inception. In addition, Applicant does not dispute Opposer’s date of first use in commerce.27 Further, Applicant has failed to submit any evidence on summary judgment or produce any evidence in response to discovery requests that would support its argument that Opposer’s use of the mark was only as a licensee.28 Thus, there is no genuine dispute regarding Opposer’s alleged date of first use of the mark in commerce of at least September, 1985. Additionally, Applicant has failed to submit any evidence of use of its marks by Applicant or a predecessor in interest that predates Opposer’s use. Cf. Opryland USA Inc. v. The Great American Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir. 1992) (nonmovant not required to present entire case but just sufficient evidence to show an evidentiary conflict as to the material fact in dispute). In view 27 See Applicant’s response brief at 7, 8; 16 TTABVUE at 9, 10. 28 We also note that, while not considered, Applicant’s evidence submitted as Exhibit B and titled “Assignment of Unregistered Trademark” states that Joseph Daniele is “an owner of an unregistered trademark ‘THE GREAT WAZU’” and that he assigns “the right to use the trademark” to Applicant. This evidence contradicts Applicant’s argument that Joseph Daniele has always operated as a licensee of the mark. 16 TTABVUE at 56. Opposition No. 91219007 15 thereof, the Board finds that there is no genuine dispute of material fact that Opposer has priority of use over Applicant’ marks.29 Similarity of the Marks With respect to the similarity or dissimilarity of the marks and the relatedness of the goods and services, the parties agree that Opposer’s use of the mark GREAT WAZU in connection with a sandwich shop and delicatessen is identical to Applicant’s use of the mark GREAT WAZU for restaurant and delicatessen services in application Serial No. 86242067.30 Thus, there is no geniune dispute of material fact regarding the similarity of the marks, the relatedness of the goods and services and the channels of trade for the services. In view of the above, there are no geniune disputes of materal fact regarding Opposer’s claim of likelihood of confusion with application Serial No. 86242067 for the mark GREAT WAZU. Accordingly, Opposer’s motion for summary judgment is granted with respect to Serial No. 86242067 and registration is refused on that basis. Turning to application Serial No. 86242071 for the mark THE ORIGINAL GREAT WAZU, the Board finds that there is no genuine dispute of material fact with respect to the similarity of the mark with Opposer’s mark GREAT WAZU used in connection with the same services in the same channels of trade. The Board takes judicial notice of the word “ORIGINAL.” See In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 29 In the absence of any evidence of actual use, Applicant is confined to its application filing date of April 3, 2014 as its constructive use date for purposes of priority. See Spirits International B.V. v. S. S. Taris Zeytin Ve Zeytinyagi Tarim Satis Kooperatifleri Birligi, 99 USPQ2d 1545, 1549 (TTAB 2011). 30 See 16 TTABVUE at 10. Opposition No. 91219007 16 2006) (Board may take judicial notice of dictionary definitions); see also, Fed. R. Evid. 201(c) and TBMP § 704.12. Here, the additional word “ORGINAL” in the subject application means “being the source from which a copy, reproduction, or translation is made.”31 Thus, the term “THE ORIGINAL” merely provides information to purchasers as to Applicant’s services and merely serves to modify the wording “GREAT WAZU.” Additionally, it creates an impression that there is a sponsorship or association with other GREAT WAZU sandwich shops.32 In view of the identical nature of the parties’ services and channels of trade and the strong similarity of the marks, we find that there are no genuine disputes of material fact with respect to Opposer’s claim of likelihood of confusion with application Serial No. 86242071. Accordingly, Opposer’s motion for summary judgment is granted with respect to the application, and registration is refused on that basis. In view of the above, judgment is hereby entered against Applicant in the consolidated proceeding. 31 The American Heritage Dictionary of the English Language (5th ed.2015). 32 The article “THE” in the mark has no source-indicating significance. See, e.g., Conde Nast Publ’ns Inc. v. Redbook Publications Co., 217 USPQ 356, 357, 360 (TTAB 1983) (article “the” is insignificant and cannot serve as an indicator of origin).