Dreams In Glass, Inc.

Trademark Trial and Appeal Board

May 27, 2016

No. 86634080 (T.T.A.B. May. 27, 2016)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 27, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Dreams In Glass, Inc.
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Serial No. 86634080
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Stephen Burch of Smith & Associates,
for Dreams In Glass, Inc.
Uka Onuoha, Trademark Examining Attorney, Law Office 121,
Michael W. Baird, Managing Attorney.
_____

Before Taylor, Shaw and Greenbaum,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Dreams In Glass, Inc., (“Applicant”) seeks registration on the Principal Register
of the mark POLITICAL FOOD FOR THOUGHT (in standard characters) for
Entertainment in the nature of ongoing television
programs in the field of the preparation of food with guest
politicians discussing the latest politics, important issue
and policy in International Class 41.1

1 Application Serial No. 86634080 was filed on May 19, 2015, based upon Applicant’s claim of
first use anywhere and use in commerce since at least as early as October 4, 2012.
Serial No. 86634080
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark, when used on or in connection with the identified services, is likely
to cause confusion with the mark FOOD FOR THOUGHT (in standard characters)
for
Entertainment, namely, a continuing cooking show
broadcast over television, satellite, audio, and video media;
Production of radio and television programs; Television
show production in International Class 41.2
When the Section 2(d) refusal was made final, Applicant appealed. We affirm the
refusal to register.
I. Applicable Law
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). See
also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905 (Fed. Cir. 2012); and In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the services. See Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental
inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the [services] and differences in the marks.”).

2 Reg. No. 3470204 issued on July 22, 2008. Section 8 affidavit accepted.
Serial No. 86634080
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A. Similarity of the Services, Channels of Trade, and Conditions of
Purchase.
We begin with the du Pont factors of the relatedness of the services and the
conditions of purchase. We base our evaluation on the services as they are identified
in the registration and application. See In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d
1531, 1534 (Fed. Cir. 1997). See also Stone Lion Capital Partners, LP v. Lion Capital
LLP, 76 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys.,
Inc. v. Houston Computers Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990).
In this case, the broadly worded services identified in the registration, “continuing
cooking show broadcast over television, satellite, audio, and video media,” encompass
the “ongoing television programs in the field of the preparation of food with guest
politicians discussing the latest politics, important issue and policy” identified in the
application. See In re Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006) (citing
In re Elbaum, 211 USPQ 639, 640 (TTAB 1981)) (unrestricted and broad
identifications are presumed to encompass all services of the type described). Thus,
the identified services are legally identical in part.
Further, because the services are legally identical in-part and the identification of
services in the cited registration is not limited to any specific channels of trade, we
must presume that the trade channels and classes of purchasers, at least with respect
to the overlapping services, are the same. Viterra, 101 USPQ2d at 1908 (absent
restrictions in an application or registration, the identified services, if identical, are
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“presumed to travel in the same channels of trade to the same class of purchasers.”)
(quoting Hewlett-Packard, 62 USPQ2d at 1001). See also Stone Lion, 110 USPQ2d at
1161; In re Linkvest, 24 USPQ2d 1716, 1716 (TTAB 1992). The limitation as to
“political guests discussing the latest politics, important issue and policy” in the
application has no effect in distinguishing the market channels because the broadly
worded identification in the registration encompasses such guests and subject
matter. Paula Payne Prods. Co. v. Johnson Publ’g Co., Inc., 473 F.2d 901, 177 USPQ
76, 77 (CCPA 1973).
Applicant attempts to distinguish the identified services by arguing that “one is a
political talk show while the other is a generic cooking show.”3 Applicant also relies
on a transcript from Registrant’s website of Registrant’s FOOD FOR THOUGHT
cooking show as evidence that Registrant actually offers a religious-based cooking
show on a religious network.4 However, as identified, Registrant’s “continuing
cooking show” is not limited to religious topics, nor does it exclude political guests or
topics, and Applicant’s television program is not identified as primarily a political
talk show. Moreover, that Registrant’s cooking show service offered under the FOOD
FOR THOUGHT mark is religion-based is not relevant to our likelihood of confusion
analysis. As stated above, we are bound by the identifications of services in the
application and registration, respectively, and cannot limit the services to what
Applicant’s evidence shows them to be. Stone Lion, 110 USPQ2d at 1162; see also In

3 4 TTABVUE 5.
4 September 28, 2015 Response to Office Action.
Serial No. 86634080
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re Thor Tech Inc., 90 USPQ2d 1634, 1637-38 (TTAB 2009) (“[W]e must also analyze
the similarity or dissimilarity and nature of the goods based on the description of the
goods set forth in the application and the registration at issue … we may not limit or
restrict the trailers listed in the cited registration based on extrinsic evidence.”).
With regard to the conditions of sale and the consumers, Applicant argues that
“consumers engaged in politics and religion are careful in discerning the messages
and views that they wish to encounter on a regular basis” and “religious consumers
are more than sophisticated enough to discern between [the] two services.”5 In
addition to lacking evidentiary support, this argument fails because we are bound by
the identification of services in the application and registration, and because the
identifications of services are not restricted as to viewing audience and, in
Registrant’s case, ancillary subject matter. Even if viewers of Applicant’s cooking
shows exercise some degree of care in selecting the show based on the political content
or guests, even knowledgeable and careful purchasers can be confused as to source,
where, as here, very similar marks are used in connection with services that are, in
part, identical. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50
(Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434
F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of
discriminating purchasers … are not infallible.”).
We find that the services, channels of trade, and conditions of purchase favor a
finding of likelihood of confusion.

5 4 TTABVUE 10.
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B. The Similarity/Dissimilarity of the Marks and the Number and Nature
of Similar Marks in Use in Connection With Similar Services.
We next turn to the du Pont factor of the similarities and dissimilarities between
the marks. We analyze “the marks in their entireties as to appearance, sound,
connotation and commercial impression.” Viterra, 101 USPQ2d at 1908 (quoting du
Pont, 177 USPQ at 567). See also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). In
comparing the marks, we are mindful that where, as here, the services are legally
identical, the degree of similarity necessary to find likelihood of confusion need not
be as great as where there is a recognizable disparity between the services. Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); Viterra, 101 USPQ2d at 1912 (citing Century 21 Real Estate Corp. v.
Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992)). Further, “[t]he
proper test is not a side-by-side comparison of the marks, but instead ‘whether the
marks are sufficiently similar in terms of their commercial impression’ such that
persons who encounter the marks would be likely to assume a connection between
the parties.” Coach Servs., 101 USPQ2d at 1721 (quoting Leading Jewelers Guild,
Inc. v. LJOW Holdings, LLC, 82 USPQ2d 1901, 1905 (TTAB 2007). The focus is on
the recollection of the average purchaser, who normally retains a general rather than
a specific impression of trademarks. In re Binion, 93 USPQ2d 1531 (TTAB 2009);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
In comparing the two marks, we note that Applicant’s mark POLITICAL FOOD
FOR THOUGHT incorporates the entirety of Registrant’s mark FOOD FOR
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THOUGHT. Thus, although the marks are not identical in sound and appearance,
they are similar in sound and appearance in that they both contain the same wording
FOOD FOR THOUGHT. Likelihood of confusion often has been found where the
entirety of one mark is incorporated within another. See Coca-Cola Bottling Co. of
Memphis, Tennessee, Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188
USPQ 105 (CCPA 1975) (applicant’s mark BENGAL LANCER for club soda, quinine
water and ginger ale is likely to cause confusion with BENGAL for gin); Johnson
Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ 155, 156 (TTAB 1982) (applicant’s mark
EBONY DRUM for hairdressing and conditioner is likely to cause confusion with
EBONY for cosmetics); In re Cosvetic Labs., Inc., 202 USPQ 842 (TTAB 1979)
(applicant’s mark HEAD START COSVETIC for vitamins for hair conditioners and
shampoo is likely to cause confusion with HEAD START for men’s hair lotion and
after-shaving lotion). Moreover, when viewed in connection with the cooking shows
of Registrant and Applicant, the meaning of FOOD FOR THOUGHT is the same in
both marks. THE AMERICAN HERITAGE IDIOMS DICTIONARY (2002) defines “food for
thought” as “an idea or issue to ponder, as in That interesting suggestion of yours has
given us food for thought. This metaphoric phrase, transferring the idea of digestion
from the stomach to mulling something over in the mind, dates from the late
1800s …”6 (emphasis in original).

6 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imps. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), and we do so here.
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Applicant argues that POLITICAL is the dominant portion of its mark
POLITICAL FOOD FOR THOUGHT because POLITICAL appears first in the mark.
We acknowledge that the common phrase FOOD FOR THOUGHT appears after the
word POLITICAL in Applicant’s mark. However, in this case, we find that the word
placement is not sufficient to distinguish the marks because the adjective
POLITICAL simply modifies, and appears as a variant of, the shared phrase FOOD
FOR THOUGHT, indicating that the guests and topics of discussion pertain to
politics.
Applicant points to a listing of third-party registrations that comprise or
incorporate the phrase FOOD FOR THOUGHT or THOUGHT FOR FOOD7 as
evidence that the phrase FOOD FOR THOUGHT is “highly suggestive” and “weak.”8
However, as the Examining Attorney correctly notes,9 the cited registration is the
only registration that uses the phrase FOOD FOR THOUGHT or in connection with
television programs. The other listed registrations appear to cover unrelated goods or

7 September 28, 2015 Response to Office Action.
8 4 TTABVUE 7. We note that Applicant did not provide copies of the listed registrations, or
the full information regarding them in the USPTO TSDR electronic database. Generally, a
mere listing is insufficient to make such registrations of record. In re Dos Padres Inc., 49
USPQ2d 1860, 1861 n.2 (TTAB 1998). However, in the October 20, 2015 Final Office Action,
the Examining Attorney did not object to (or even mention) the list. The Examining Attorney
therefore has waived any objection, and we will treat the list as being of record, and will
consider the list for whatever probative value it may have. In re District of Columbia, 101
USPQ2d 1588, 1592 n.5 (TTAB 2012); In re Broyhill Furniture Indus. Inc., 60 USPQ2d 1511,
1513 n. 3 (TTAB 2001). We also note that some of the third-party marks on the list are for
applications. “There is no evidence of record that these applications ever registered and a
pending application is evidence only that the application was filed on a certain date; it is not
evidence of use of the mark.” In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016)
(citations omitted).
9 6 TTABVUE 9.
Serial No. 86634080
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services. For example, pursuant to the list Applicant provided, GREEN FOODS FOR
THOUGHT (Reg. No. 3193552) identifies a “newsletter featuring articles and
information concerning green foods and their marketing, for distributors and
retailers of green food products,” FOOD FOR THOUGHT CATERING (Reg. No.
4118059) identifies “catering services; providing of food and drink via a mobile truck,”
FOOD FOR THOUGHT PRODUCTIONS (Reg. No. 2741700) identifies
“entertainment services in the nature of a series of performances by actors of plays,”
and THINK: HEALTHY! FOOD FOR THOUGHT (Reg. No. 4112662) identifies
“pizza.” Further, the registration for THOUGHT FOR FOOD10 is not relevant as that
mark is different from the metaphorical phrase FOOD FOR THOUGHT here at issue.
In sum, there is no evidence to show that Registrant’s mark is particularly weak, such
as third-party use of the phrase FOOD FOR THOUGHT in connection with similar
services. Cf. Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d
1671, 1675 (Fed. Cir. 2015) (Third-party registration evidence may show that a term
carries a highly suggestive connotation in the relevant industry and therefore may be
considered somewhat weak.); Jack Wolfskin Ausrustung Fur Draussen GmbH v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015).
Applicant’s mark POLITICAL FOOD FOR THOUGHT contains nothing by which
to distinguish it from Registrant’s mark FOOD FOR THOUGHT, other than the
highly suggestive, if not descriptive, term POLITICAL. Because of the identical
phrase FOOD FOR THOUGHT, which has the same metaphorical meaning relating

10 Reg. No. 1772658, listed as registered on the Supplemental Register.
Serial No. 86634080
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to the legally identical services identified in the application and registration, we find
that, when viewed in their entireties, the marks POLITICAL FOOD FOR THOUGHT
and FOOD FOR THOUGHT are more similar than they are different and, overall,
convey very similar commercial impressions. That is to say, the marks appear to be
variations of each other, and point to a common source. As such, this du Pont factor
favors a finding of likelihood of confusion.
II. Conclusion
We have carefully considered all evidence of record and Applicant’s arguments,
even if not specifically discussed herein, as they pertain to the relevant du Pont
factors. We treat as neutral any du Pont factors for which there is no evidence or
argument of record.
Because the marks are similar when viewed in their entireties, and Applicant’s
services are legally identical to Registrant’s services, we find that confusion is likely
between Applicant’s mark POLITICAL FOOD FOR THOUGHT, and Registrant’s
mark FOOD FOR THOUGHT.
Decision: The refusal to register under Section 2(d) is affirmed.