mnmco llc

Trademark Trial and Appeal Board

Dec 14, 2007

No. 78622540 (T.T.A.B. Dec. 14, 2007)

Mailed: December 14, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In re mnmco llc
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Serial No. 78622540
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Doyle B. Johnson, Reed Smith, LLP, for applicant.

Megan K. Whitney, Trademark Examining Attorney, Law Office
113 (Odette Bonnet, Managing Attorney).
____________

Before Holtzman, Rogers, and Mermelstein, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:

mnmco llc filed an application to register the mark
LETTÜS (in standard characters) on the Principal Register
for “retail grocery stores” and “restaurant services,” in
International Classes 35 and 43, respectively.1
The examining attorney issued a final refusal to
register under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), on the ground that applicant’s mark so resembles
the mark LETTUCE (typed mark), previously registered for

1 Filed May 4, 2005, alleging a bona fide intent to use the mark
in commerce.

THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 78622540

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“restaurant services”2 that, if used on or in connection
with applicant’s goods, it would be likely to cause
confusion or mistake or to deceive. Applicant has appealed.
Both applicant and the examining attorney have filed briefs.
We affirm in part and reverse in part.
Legal Standard
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on likelihood of confusion.
See In re E. I. du Pont de Nemours and Co., 476 F.2d 1357,
177 USPQ 563 (CCPA 1973). See also Palm Bay Imports, Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003); In re Dixie Restaurants Inc., 105 F.3d
1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods [or services] and
differences in the marks.” Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA

2 Registration No. 1672175, issued January 14, 1992, to Lettuce
Entertain You Enterprises, Inc. Filings pursuant to Trademark
Act §§ 8, 9, and 15, accepted, granted, and acknowledged,
respectively.
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1976); In re Azteca Restaurant Enterprises, Inc., 50 USPQ2d
1209 (TTAB 1999), and cases cited therein.
International Class 35
As noted, the subject application includes services in
International Class 35 (retail grocery stores) and
International Class 43 (restaurant services). Throughout
examination and appeal, no mention has been made of
applicant’s International Class 35 services in connection
with the refusal to register.3 Although the refusal was not
specifically limited to International Class 43, the
examining attorney has consistently referred to applicant’s
services as “restaurant services,” or as “identical” to the
prior registrant’s services, which are also “restaurant
services.” This is clearly a reference to the Class 43
services, and not those in Class 35. The examining attorney
proffered no evidence or argument as to the relationship
between “retail grocery stores” and “restaurant services.”
Likewise, applicant makes no mention of the statutory
refusal in connection with its Class 35 services. Although
it is not clear whether the refusal to register and this
appeal were intended to apply to applicant’s International
Class 35 services, they remain in the application, and

3 The examining attorney did require amendment of the Class 35
recitation of services from the originally-recited “grocery
services.” Applicant’s subsequent amendment to “retail grocery
services” was accepted.
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applicant has paid the appropriate appeal fee for two
classes. Accordingly, we consider the refusal and appeal to
apply to both classes.
Because the examining attorney has presented no
evidence or argument with respect to refusal of applicant’s
“retail grocery stores,” the refusal to register is reversed
as to those services. Although we find the marks
substantially similar, see infra, we will not presume a
connection between applicant’s Class 35 services and the
prior registrant’s “restaurant services,” in the absence of
evidence to support this contention.
International Class 43
Comparison of the Respective Services, Trade Channels,
and Classes of Customers

Applicant’s recited “restaurant services” are identical
to the services in the prior registration. Moreover,
because the services are identical and contain no
restrictions, we must consider the respective channels of
trade and classes of customers to also be identical. In Re
Jump Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In Re
Elbaum, 211 USPQ 639, 640 (TTAB 1981). These factors
strongly support the refusal to register.

Serial No. 78622540

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Comparison Of The Marks
We next consider whether applicant’s mark LETTÜS and
the registered mark LETTUCE, when viewed in their
entireties, are similar in terms of appearance, sound,
connotation and commercial impression. In comparing the
marks, we are mindful that where, as here, the services are
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. Century
21 Real Estate Corp. v. Century Life of America, 970 F.2d
874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Real Estate One,
Inc. v. Real Estate 100 Enterprises Corporation, 212 USPQ
957, 959 (TTAB 1981); ECI Div. of E-Systems, Inc. v.
Environmental Communications Inc., 207 USPQ 443, 449 (TTAB
1980). The test is not whether the marks can be
distinguished when subjected to a side-by-side comparison,
but whether the marks are sufficiently similar in their
overall commercial impressions that confusion as to the
source of the goods or services offered under the respective
marks is likely to result. The focus is on the recollection
of the average purchaser, who normally retains a general
rather than a specific impression of trademarks. See Sealed
Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Applicant argues that the marks here differ in
appearance, sound, meaning, and commercial impression. As
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to sound, applicant points out that its mark ends in “-ÜS,”
while the mark in the prior registration ends in “-UCE.”
According to applicant, the prior mark is pronounced “let’
tus,” while the mark in the subject application would be
pronounced “let toos’,” with the accent on the second
syllable. By contrast, the examining attorney argues that
the marks are phonetic equivalents, and could be pronounced
the same way.
In considering the similarity in sound, we must
consider applicant’s mark as it is likely to be pronounced,
not as it is intended by applicant to be pronounced.
Trademark proprietors have little influence on how their
customers pronounce marks. See In re Great Lakes Canning,
Inc., 227 USPQ 483, 485 (TTAB 1985)(“it is well established
that there is no such thing as a ‘correct’ pronunciation of
a trademark.”)
We agree with the examining attorney that many
potential customers would likely pronounce applicant’s mark
the same as the prior registrant’s, i.e., like the familiar
word “lettuce.” The “–TUS” portion of applicant’s mark
would likely be articulated the same as the “–TUCE” portion
of “lettuce.” Although applicant’s mark includes a non-
standard character, applicant does not explain how this is
likely to affect the pronunciation of the mark and why this
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would be so,4 nor does applicant explain why it believes
that its customers would accent the second syllable. But
even if some customers adopt applicant’s proposed
pronunciation, it would still be quite similar in sound to
“lettuce.” In ordinary conversation, even “let’ tus” and
“let toos’” would likely be viewed as a small variation on
the same word.
Applicant also argues that the two marks “differ
significantly” in appearance. Applicant’s Br. at 2. While
the marks are clearly not identical, we find them to be
quite similar in appearance. Both begin with the letters
LETT-. The next letters in the respective marks, “U” and
“Ü”, are visually nearly identical. The only significant
difference in appearance is that applicant’s mark ends in
“-S,” while the cited registrant’s mark ends in “-CE.” But
because English speakers are accustomed to reading from left
to right, it is logical to assume that the beginning of a
word is most likely to have the strongest impression. In
any event, we find that this is the case here.5

4 Diacritical marks such as those over the letter “U” in
applicant's mark are not commonly used in English. It is not at
all clear whether potential consumers would pronounce the letter
as a German umlaut, see MERRIAM WEBSTER’S COLLEGIATE DICTIONARY, 1282
(10th ed. 1998), as a diaerisis, see id. at 319, or in some other
way. Since many consumers are unlikely to be aware of any
“appropriate” pronunciation (if indeed there is one), it seems
quite likely that the diacritical mark as used here would be
ignored in vocalizing applicant’s mark.
5 The examining attorney notes that the prior registration is for
a typed mark, while applicant here has applied for registration

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Finally, although there is no evidence that “lettüs” is
a properly-spelled word, its visual and aural similarity to
the word “lettuce” would likely result in the same
commercial impression among potential customers. In so
finding, we note that the mark – as used in connection with
restaurant services – is suggestive of a restaurant with a
vegetarian- or salad-oriented menu, which is the same
connotation likely to be given to the prior registrant’s
mark.
Accordingly, we find that the marks are identical (or
nearly so) in sound, and quite similar in both visual
presentation and overall commercial impression. This factor
strongly supports the refusal to register.
Conclusion
As noted, applicant’s services are identical to those
identified in the cited registration, and the channels of
trade and classes of purchasers are likewise identical.
_____________________________
of a standard character mark. Whereas earlier applications for
registration “without claim to any particular font style, size,
or color” were referred to as “typed” marks, after November 3,
2003, such marks are said to be in “standard characters.” See
TMEP § 807.03(i). At the same time, the list of characters
permitted in such marks was expanded, allowing use of characters
like “Ü,” which were not allowed prior to November 2003.
Although registration of a typed or standard character mark
generally covers use of the mark in any stylization, we cannot
agree with the examining attorney’s suggestion that the cited
registration must be construed to encompass the same special
character as used in applicant’s mark. Because the prior policy
did not permit the use of “Ü” in a typed mark, we will not
construe opposer’s typed mark to encompass a character which it
could not have included at the time of registration.
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When the relevant services are identical, a lesser degree of
similarity of the marks is necessary to support a finding of
likelihood of confusion. ECI Div. of E-Systems, Inc. v.
Envtl. Communications Inc., 207 USPQ 443, 449 (TTAB 1980).
We conclude that, in view of the substantial similarity
of applicant’s mark and that of the registrant, their
contemporaneous use in connection with restaurant services
is likely to cause confusion as to the source or sponsorship
of such services.
Decision: The refusal under Section 2(d) of the Act is
REVERSED with respect to International Class 35 and AFFIRMED
with respect to International Class 43.