Hop Daddy LLC

Trademark Trial and Appeal Board

Aug 25, 2020

88175921 (T.T.A.B. Aug. 25, 2020)

Mailed: August 25, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Hop Daddy LLC
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Serial No. 88175921
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Hop Daddy LLC, pro se.

Nancy L. Clarke, Trademark Examining Attorney, Law Office 102,
Mitchell Front, Managing Attorney.
_____

Before Wellington, Lykos and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicant, Hop Daddy LLC, seeks registration on the
Principal Register of the mark SALTY BULL BREWING
and design shown here for “Restaurant and bar services;
Taproom services; Taproom services featuring beer brewed
on premises,” in International Class 43.1

1 Application Serial No. 88175921 was filed on October 31, 2018 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce.
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
Serial No. 88175921
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Applicant disclaimed the exclusive right to use “BREWING” apart from the mark
as shown. Color is not claimed as a feature of the mark. The description of the mark
reads as follows:
The mark consists of the words “SALTY BULL BREWING” in stylized
form with a design. The wording “SALTY BULL” is over a design of a
fish inside a double circle, with ocean in the background and a boat in
the distance. There are leaves on the lower left and right portions of the
double circle encirclng [sic] the fish. The word "BREWING" is below this
design.
Applicant appeals from the Trademark Examining Attorney’s final refusal to
register under Trademark Act § 2(d), 15 U.S.C. § 1052(d), on the ground that
Applicant’s mark, when used in connection with the identified services, so resembles
the mark TORO SALAO, in standard characters, registered on the Principal Register
for “Restaurant services, including sit-down service of food and take-out restaurant
services” in International Class 43.2 The appeal is fully briefed.3
We reverse the refusal to register.
I. Evidentiary Issue

The Examining Attorney objects to new evidence submitted by Applicant for the
first time with its appeal brief, which she argues is untimely and should be
disregarded, specifically: (1) a screen shot from the Google Translate database
regarding the word “salao,” and (2) an excerpt from a website (Real Academia

2 Registration No. 5150833, issued February 28, 2017.
3 Applicant’s briefs do not comply with Trademark Rule 2.126(a) because they are single-
spaced. Nevertheless, since it appears that the briefs would fall within the Rule's page limits
if double-spaced, we have exercised our discretion to consider them. See Univ. of Miami, 123
USPQ2d 1075, 1077 n.2 (TTAB 2017).
Serial No. 88175921
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Española) concerning the word “salao.”4
In reply, Applicant argues that it “previously presented Google Translate evidence
… within the initial response to the Examining Attorney’s Office Action. The Google
Translate evidence is NOT new evidence.”5
Applicant’s argument with respect to the Google evidence is well-taken because
we find that it was already submitted with Applicant’s response to the Examining
Attorney’s first office action.6 We therefore overrule the Examining Attorney’s
objection to the Google evidence.
As to the Real Academia Española website excerpt, Applicant argues that because
the Examining Attorney continues to ignore the fact that there is no
Spanish word ‘Salao’ which translations [sic] into the English word,
“Salty” … and since the translation simply does not exist, It is thus
necessary to add clarity by supplementing additional evidence to the
Appeals Board to further prove the Examining Attorney’s error and lack
of accepting factual evidence which destroys the Examining Attorney’s
primary argument for refusal of the mark.7

Applicant’s argument regarding this evidence is not well-taken. It is well-settled
that the record in an ex parte proceeding should be complete prior to appeal.
Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). Exhibits or other evidentiary material
that are attached to or included with a brief but not made of record during
examination are untimely, and will not be considered. See In re Fitch IBCA, Inc., 64
USPQ2d 1058, 1059 n.2 (TTAB 2002); see also TRADEMARK TRIAL AND APPEAL BOARD

4 6 TTABVUE 3.
5 7 TTABVUE 2.
6 June 26, 2019 Response to Office Action, TSDR 17.
7 7 TTABVUE 6.
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MANUAL OF PROCEDURE (TBMP) § 1203.02(e) (June 2020). Applicant’s contention that
the additional evidence was necessary because the Examining Attorney ignored its
argument is unavailing, as the Board’s rules governing the admissibility of evidence
are not dependent on a party’s subjective belief that its arguments during prosecution
should have been accepted.8 Accordingly, the Examining Attorney's objection to this
evidence is sustained and we give it no further consideration in our analysis.
II. Applicable Law

The fundamental purpose of Trademark Act § 2(d) is to prevent confusion as to
source, and to protect registrants from damage caused by registration of confusingly
similar marks. Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ
327, 331 (1985). Our analysis is based on all of the probative evidence of record. In re
E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”). In making our determination, we consider each DuPont factor for which
there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned to each
DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular

8 If Applicant wished to introduce additional evidence after its appeal had been filed,
Applicant should have filed a written request with the Board to suspend the appeal and
remand the application for further examination pursuant to Trademark Rule 2.142(d), 37
C.F.R. § 2.142(d). Applicant did not do so.
Serial No. 88175921
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determination”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods and services. See In re
Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
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 goods and differences in the
marks.”). We discuss the relevant DuPont factors below.
A. Similarity or Dissimilarity of the Services and Trade Channels
We begin our analysis with the second and third DuPont factors. The second
DuPont factor considers the “similarity or dissimilarity and nature of the goods or
services as described in an application or registration,” In re Detroit Athletic Co., 903
F.3d 1296, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting DuPont, 476 F.2d at
1361), and the third DuPont factor considers the “similarity or dissimilarity of
established, likely-to- continue trade channels.” Id. at 1052. It is “not necessary that
the goods [or services] be identical or even competitive to support a finding of a
likelihood of confusion.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven, Inc. v. Wechsler, 83
USPQ2d 1715, 1724 (TTAB 2007)). “[L]ikelihood of confusion can be found ‘if the
respective goods [or services] are related in some manner and/or if the circumstances
surrounding their marketing are such that they could give rise to the mistaken belief
that they emanate from the same source.’” Id.
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Moreover, we need not find similarity as to each and every service listed in an
applicant’s identification of services. It is sufficient for a finding of likelihood of
confusion that relatedness is established for any item encompassed by the
identification of services in a particular class in the application. See Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981) (likelihood of confusion must be found if there is likely to be confusion with
respect to any item that comes within the identification of goods or services in the
application); Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, *6 (TTAB
2019); In re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015).
Applicant’s and Registrant’s services are overlapping and identical in part:
Applicant’s services includes “restaurant services,” which encompasses Registrant’s
“restaurant services, including sit-down service of food and take-out restaurant
services.” The Examining Attorney also made of record copies of fifteen third-party
registrations and webpages from three websites to show that Applicant’s separately
identified bar and taproom services are often provided by entities that provide
restaurant services under the same mark.9 Applicant does not dispute that the
services are related.
The fact that the respective services are identical in part means that we must also
assume that the relevant purchasers and channels of trade are identical to the same
extent. In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1244 (TTAB 2010) (citing
Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005

9 February 19, 2019 Office Action, TSDR 18-61, 67-98.
Serial No. 88175921
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(Fed. Cir. 2002) (“[B]ecause the services are legally identical, they must be presumed
to travel in the same channels of trade and be rendered or offered to the same class
of consumers.”)). See also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908
(Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and
classes of consumers, the Board was entitled to rely on this legal presumption in
determining likelihood of confusion).
The evidence of record establishes that Applicant’s and Registrant’s services are
overlapping and identical in part, and they travel in the same trade channels to the
same or overlapping classes of purchasers. Accordingly, the second and third DuPont
factors strongly support a finding of a likelihood of confusion.
B. Similarity or Dissimilarity of the Marks

The first DuPont factor considers the “similarities or dissimilarities of the marks
in their entireties as to appearance, sound, connotation and commercial impression.”
In re Detroit Athletic Co., 128 USPQ2d at 1047 (quoting DuPont, 177 USPQ at 567).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, 126 USPQ2d 1742, 1746 (TTAB 2018)
(quoting In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014), aff’d mem., 777 Fed.
Appx. 516 (Fed. Cir. 2019)).
The test is not whether the marks can be distinguished in a side -by-side
comparison, but rather whether their overall commercial impressions are so similar
that confusion as to the source of the services offered under the respective marks is
likely to result. See Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d
Serial No. 88175921
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1797, 1801 (Fed. Cir. 2018) (citing Coach Servs., 101 USPQ2d at 1721). Our focus is
on the recollection of the average purchaser, who normally retains a general rather
than a specific impression of trademarks. See Inter IKEA Sys. B.V. v. Akea, LLC, 110
USPQ2d 1734, 1740 (TTAB 2014); Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d
1391, 161 USPQ 687, 688 (CCPA 1969) (many consumers “may have but dim
recollections from having previously seen or heard one or the other of the involved
marks.”). In making our determination, we keep in mind that the more closely related
the goods are, the more “the degree of similarity [between the marks] necessary to
support a conclusion of likely confusion declines.” Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992).
Applicant’s SALTY BULL BREWING and design mark is different from
Registrant’s TORO SALAO mark in appearance and sound, but equivalency in
meaning or connotation can outweigh the differences in marks. In re Aquamar, Inc.,
115 USPQ2d at 1127-28; In re Perez, 21 USPQ2d 1075, 1077 (TTAB 1991). The
Examining Attorney relies on the doctrine of foreign equivalents to assert that the
marks are confusingly similar in meaning and connotation because TORO SALAO is
Spanish for SALTY BULL.10
Under the doctrine of foreign equivalents, foreign words from common languages
are translated into English to determine similarity of connotation with English word
marks. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1696 (Fed. Cir. 2005). The rule, however, is

10 6 TTABVUE 5-6.
Serial No. 88175921
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not absolute and should be viewed merely as a guideline. Id. The doctrine should be
applied only when: (1) the relevant English translation is direct and literal and there
is no contradictory evidence establishing another relevant meaning, In re Sadoru
Grp., Ltd., 105 USPQ2d 1484, 1485 (TTAB 2012), and (2) “it is likely that the ordinary
American purchaser would ‘stop and translate [the word] into its English
equivalent.’” Palm Bay, 73 USPQ2d at 1696 (quoting In re Pan Tex Hotel Corp., 190
USPQ 109, 110 (TTAB 1976)). The “ordinary American purchaser” includes “all
American purchasers, including those proficient in a non-English language who
would ordinarily be expected to translate words into English.” In re Spirits Int’l N.V.,
563 F.3d 1347, 90 USPQ2d 1489, 1492 (Fed. Cir. 2009).
To support her argument that the terms SALTY BULL and TORO SALAO have
the same meaning under the doctrine of foreign equivalents, the Examining Attorney
provided a webpage from Wordreference.com’s online language dictionary showing
that “toro” translates from Spanish into English as “bull”:

Serial No. 88175921
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She also provided a page from the same website purportedly showing that “the
adjective salao” translates from Spanish into English as “salty”:11

As shown by the above excerpts, this “translation” evidence is not actually a
dictionary definition, but rather more in the nature of a blog, where someone asked
the meaning of “salao” and two bloggers responded. One opined that “it may mean
‘salado,” which has the meaning of being salty, and said it is also used to express
something with bad luck; the other also said that “in Spain, ‘salao’ (salado) would

11 February 19, 2019 Office Action, TSDR 65-66.
Serial No. 88175921
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mean ‘cute’ or ‘charming’; … also ‘salty’ of course.” Both indicated that context was
necessary to determine meaning.
Applicant does not dispute that “[t]here is a clear definition and translation of the
term ‘toro’ into the English word ‘bull.’”12 However, Applicant does dispute the
Examining Attorney’s definition of SALAO, which Applicant contends has “has no
translation into English” from Spanish.13 Applicant refers to the Examining
Attorney’s webpage evidence on the meaning of that word as
obscure internet blogs where the term Salao is discussed in a chat-like
forum. After close examination of these referenced blogs, one can quickly
determine that the discussion of the term “Salao” within the forum is in
fact vague and not as definitive as the examining attorney has made
them out to be. In fact, the individuals within the blog discuss how they
are not truly sure whether a translation of the term “Salao” is
definitively meant to be “salty”.14

As noted earlier, the doctrine of equivalents should be applied only when the
relevant English translation is direct and literal and there is no contradictory
evidence establishing another relevant meaning. In re Sadoru Grp., Ltd., 105
USPQ2d at 1485. Here, there is no clear single translation and connotation provided
for the term SALAO; the evidence consists solely of two anonymous blog postings
providing differing opinions on its potential meaning depending on context.
Although “we have routinely applied the doctrine of foreign equivalents to Spanish
language marks,” see, e.g., In re Aquamar, 115 USPQ2d at 1127, the absence of any

12 4 TTABVUE 2.
13 Id. at 4.
14 Id. at 2.
Serial No. 88175921
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actual dictionary translation from a recognized source for this common language
raises some doubt as to whether “salty” is a direct and literal translation of SALAO.
Moreover, according to the Cambridge and Collins dictionaries, the direct translation
of “salty” from English to Spanish and vice-versa is “salado.”15
Based on the foregoing, we find the evidence of record insufficient to establish that
“salao” is a direct and literal translation of “salty,” which renders the doctrine of
foreign equivalents inapplicable to our analysis. Accordingly, we need not address
Palm Bay’s second factor regarding whether it is likely that the ordinary American
purchaser would ‘stop and translate’ that word into its English equivalent. We find
that the marks are dissimilar in connotation.
Because the marks are very different in overall appearance, sound, connotation,
and commercial impression, the first DuPont factor strongly supports a finding of no
likelihood of confusion.
III. Conclusion

We find no likelihood of confusion between Applicant’s mark
SALTY BULL BREWERY and design mark and Registrant’s
standard character mark TORO SALAO. Notwithstanding that the
services are legally identical in part, and the channels of trade and

15 https://dictionary.cambridge.org/dictionary/english-spanish/salty;
https://dictionary.cambridge.org/dictionary/spanish-english/salado;
https://www.collinsdictionary.com/us/dictionary/english-spanish/salty;
https://www.collinsdictionary.com/us/dictionary/spanish-english/salado.

The Board may take judicial notice of definitions from dictionaries, including online
dictionaries that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4
(TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016).
Serial No. 88175921
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purchasers are the same, we conclude that the marks are too dissimilar overall to
warrant a finding of likelihood of confusion and that the first DuPont factor,
accordingly, is dispositive in this case. Kellogg Co. v. Pack’em Enters., 951 F.2d 330,
21 USPQ2d 1142 (Fed. Cir. 1991) (“We know of no reason why, in a particular case,
a single du Pont factor may not be dispositive. ... ‘each [of the thirteen factors] may
from case to case play a dominant role.’”). Because the marks are completely different
in appearance and sound, and there is no reliable evidence showing that they have
the same meaning or connotation, we find that the relevant consumers are not likely
to assume that a source connection exists between Applicant’s and Registrant’s
services provided under their respective marks.
Decision: The refusal to register is reversed.