Toast Tap & Provisions, LLC

Trademark Trial and Appeal Board

Jun 15, 2020

88123524 (T.T.A.B. Jun. 15, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: June 15, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
_____

In re Toast Tap & Provisions, LLC
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Serial No. 88123524
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Mark Murphey Henry of Rose Law Firm,
for Toast Tap & Provisions, LLC.
Sharon A. Meier, Trademark Examining Attorney, Law Office 112,
Renee Servance, Managing Attorney.
_____

Before Bergsman, Goodman and Lynch,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Toast Tap & Provisions, LLC (“Applicant”) seeks registration on the Principal
Register of the mark TOAST TAP & PROVISIONS (in standard characters,
“PROVISIONS” disclaimed) for “Servingware for serving food and drinks” in
International Class 21 and “Decorative wall hangings, not of textile” in International
Class 27.1

1 Application Serial No. 88123524 was filed on September 19, 2018, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), for the Class 27 goods, alleging March 16, 2018 as the
date of first use and first use in commerce, and under Section 1(b) of the Trademark Act, 15
Serial No. 88123524
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the registered mark TOAST for the following goods:
Busts of Porcelain; Cocktail glasses; Colored sheet glass;
Common sheet glass; Containers for household use,
namely, glass bulbs; Decorative centerpieces of Porcelain;
Decorative glass; Decorative small glass bottles containing
saw dust memorabilia; Drinking glasses; Drinking glasses,
namely, tumblers; Drinking straws of glass; Enamelled
glass; Figured plate glass, not for building; Food preserving
jars of glass; Fruit bowls of glass; Glass beverageware;
Glass bowls; Glass carafes; Glass dishes; Glass floor vases;
Glass for decorative purposes, namely, sea glass; Glass
jars; Glass mosaics not for buildings; Glass mugs; Glass
pans; Glass rods and bars; Glass storage jars; Glass tubes
not for scientific purposes; Ground plate glass; Industrial
packaging containers of glass or porcelain; Jars for jams
and jellies of Porcelain; Luminous glass; Martini glasses;
Modified sheet glass; Mosaic art tiles made of glass and
ceramic; Mosaics of glass and ceramic tiles, not for
construction; Mosaics of glass, not for buildings; Opal glass;
Opaline glass; Ornamental glass spheres; Pilsner drinking
glasses; Plaques of Porcelain; Polished plate glass;
Preserve glasses; Pressed glass; Sculptures of Porcelain;
Smoothed plate glass; Speckled glass; Spun glass; Stained
glass figurines; Stamped glass; Tempered glass; Works of
art made of glass; Works of art made of porcelain in
International Class 21.2
When the refusal was made final, Applicant requested reconsideration. After the
Examining Attorney denied the request for reconsideration, Applicant appealed to
the Board. We affirm the refusal to register.

U.S.C. § 1051(b), for the Class 21 goods, based upon applicant’s allegation of a bona fide
intention to use the mark in commerce.
Page references to the application record refer to the online database of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs on appeal
refer to the Board’s TTABVUE docket system.
2 Registration No. 4708276, issued March 24, 2015.
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I. Record on Appeal
The record on appeal includes Applicant’s specimen of use for the Class 27 goods3
and the following additional materials:
• TSDR records for the cited registration, made of record by the Examining
Attorney; January 14, 2019 Office Action at TSDR 2.
• Dictionary definition of “provision,”4 made of record by the Examining Attorney
and defined as “a supply of something or the act of providing a supply of something”;
dictionary definition of “tap,” made of record by the Applicant, and defined as “a
device for starting or stopping the flow of liquid in a pipe, barrel; faucet” or “an
instrument to draw out liquid”; and the dictionary definition of “toast” defined as “a
speech or raising of the glass in honor of someone, or bread served browned by heat.”
January 14, 2019 Office Action at TSDR 161; June 17, 2019 Response to Office Action
at TSDR 3; September 5, 2019 Request for Reconsideration at TSDR 2, 4.
• Third-party registrations of marks, and third-party webpages, made of record
by the Examining Attorney to show relatedness, or that the goods are offered through
the same channels of trade. January 14, 2019 Office Action at TSDR 5-137; July 24,
2019 Office Action at TSDR 5-156.

3 Applicant’s specimen indicates it offers “bar provisions in our studio to last a lifetime.”
4 The Examining Attorney submitted dictionary definitions for “provisions” and third-party
registrations with “provisions” disclaimed in connection with the disclaimer requirement.
Applicant provided the disclaimer of “provisions” on reconsideration.
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• Pages from the website of Applicant, made of record by Applicant. June 17,
2019 Response to Office Action at TSDR 2, 4; September 5, 2019 Request for
Reconsideration at TSDR 9-13.5
• Pages of the website of Registrant, made of record by Applicant, September 5,
2019 Request for Reconsideration at TSDR 3, 5-8.
II. Analysis of Likelihood of Confusion Refusal
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on
an analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973) (“DuPont”). “‘Not all of the DuPont factors are relevant
to every case, and only factors of significance to the particular mark need be
considered.”’ See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800
(Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257,
1259 (Fed. Cir. 2010)). We consider each DuPont factor for which there is evidence
and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160,
1162-63 (Fed. Cir. 2019).

5 Although the web pages did not include the URL or date accessed, the Examining Attorney
did not object, and therefore, any objection has been waived. In re Mueller Sports Medicine,
Inc., 126 USPQ2d 1584, 1587 (TTAB 2018). We consider the web pages for whatever
probative value they have. Id.
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In every Section 2(d) case, two key factors are the similarity or dissimilarity of the
marks and the goods or services. 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.”).
A. Similarity of the Marks
We compare Applicant’s and Registrant’s marks for similarities and
dissimilarities in appearance, sound, connotation and commercial impression. See
Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). The test, under the first DuPont factor,
is not whether the marks can be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently similar in terms of their
overall commercial impression that confusion as to the source of the goods or services
offered under the respective marks is likely to result. Coach Servs. Inc. v. Triumph
Learning, LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quoting
Leading Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d 1901, 1905 (TTAB
2007)). Substantial similarity in one or more attributes of sound, meaning and
appearance may be sufficient to support a determination of likelihood of confusion.
See Krim-Ko Corp. v. The Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA
1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely
to cause confusion”).
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Applicant’s mark is TOAST TAP & PROVISIONS and Registrant’s mark is
TOAST. Applicant’s mark incorporates Registrant’s entire mark. Likelihood of
confusion is often found when one mark subsumes the other. See Mighty Leaf Tea, 94
USPQ2d at 1260 (applicant’s mark ML is similar to opposer’s mark ML MARK LEES
both for personal care and skin products); see also Wella Corp. v. California Concept
Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977) (“When one incorporates the
entire arbitrary mark of another into a composite mark … inclusion of a merely
suggestive or descriptive element, of course, is of much less significance in avoiding
a likelihood of confusion.”).
Applicant argues that the Examining Attorney placed too much emphasis on the
TOAST element, did not consider the additional terms TAP & PROVISIONS in its
mark, and improperly dissected the mark. Applicant submits that Applicant’s mark
is six syllables and “thirteen letters and a special character longer than Registrant’s
mark,” and has substantial differences in appearance and sound. However,
consumers do not memorize marks and, generally, retain only a general, indefinite,
or vague recollection of the marks. Time Warner v. Jones, 65 USPQ2d 1650, 1660
(TTAB 2002) (average consumer “normally retains a general rather than specific
impression of trademarks”). See also United Glob. Media Grp., Inc. v. Tseng, 112
USPQ2d 1039, 1049 (TTAB 2014). We do not expect the public to study marks,
remember specific details of the marks, or engage in “recognitional contortions.”
B.V.D. Licensing Corp. v. Body Action Design, Inc., 846 F.2d 727, 6 USPQ2d 1719,
1721 (Fed. Cir. 1988).
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We acknowledge the specific differences in sight and sound pointed out by
Applicant, but we disagree with Applicant’s contention that the Examining Attorney
has improperly dissected its mark and that Applicant’s and Registrant’s mark are
overall different in sight and sound.
In reaching a conclusion on the issue of likelihood of confusion, there is nothing
improper in stating that, for rational reasons, more or less weight has been given to
a particular feature of a mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. See Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (citing In
re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985)).
In this case, TOAST is the dominant portion of Applicant’s mark. Although we do
not ignore the additional terms in Applicant’s mark, we give these terms less weight
in our analysis, as the terms TAP & PROVISIONS which follow TOAST are either
suggestive or descriptive, and the ampersand has no trademark significance.6
In terms of appearance and sound, we find the marks share a good deal of
similarity based on the common word TOAST. This term TOAST is the only term in
the mark in the cited registration, and is the first term that consumers will see in
Applicant’s mark. It is well-established that prospective consumers are often more

6 As to the term TAP, in its July 17, 2019 Response to Office Action at TSDR 1, Applicant
indicated that it offers hand-crafted bar products, including custom wooden tap handles for
beer dispensers which are suggested by the inclusion of the word TAP in Applicant’s mark.
As to the term PROVISIONS, as stated in n.3, Applicant’s specimen indicates it offers “bar
provisions.”

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inclined to focus on the first part of a trademark or service mark. See Palm Bay Imps.,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692; Presto
Products, Inc. v. Nice-Pak Products Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (the first
term of the mark, is the term “most likely to be impressed upon the mind of a
purchaser and remembered”).
As to connotation, Applicant submits that “Registrant uses a connotation in which
TOAST indicates ‘bread served browned by heat’” while Applicant uses the
connotation of TOAST with the term TAP to mean to mean raising of the glass in
honor of someone. 4 TTABVUE 18-19 (“Applicant designs custom beer tap handles
for those drinks which customers will later raise high in celebration or honor.”).
Applicant relies on the dictionary definitions it submitted and Registrant’s website.
Id.
However, we find that consumers viewing the respective marks in connection with
Applicant’s and Registrant’s goods will discern little, if any, difference in connotation
conveyed by the marks. Consumers may consider TOAST in both Applicant’s and
Registrant’s marks to mean to raise a glass in celebration, given that Applicant’s
goods include servingware and Registrant’s goods include beverageware and
drinkware. Therefore, TOAST in Applicant’s and Registrants’ mark are similar in
connotation.
Applicant also argues that the marks as advertised have different commercial
impressions and “strong but polarizing brand images,” again relying on Applicant’s
and Registrant’s websites. Applicant submits that its brand is “edgy and tough” while
Serial No. 88123524
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Registrant’s brand is “a mellow, laidback vibe.” 4 TTABVUE 19-21. However,
although we may consider the commercial impression created by the marks in
advertising as “evidence of whether the word mark projects a confusingly similar
commercial impression,” it may not be used to prove that commercial impressions are
different for a word mark because trade dress may be changed at any time. Specialty
Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 223 USPQ 1281, 1284
(Fed. Cir. 1984); Vornado, Inc. v. Breuer Elec. Mfg. Co., 390 F.2d 724, 727, 156 USPQ
340, 342 (CCPA 1968) (“the [advertising] display of the mark in a particular style is
of no material significance since the display may be changed at any time as may be
dictated by the fancy of the applicant or the owner of the mark.”).
Given the similarities in sound, appearance, and meaning, we find that when the
marks are considered overall, they convey similar commercial impressions.
Although we have focused on the dominant and identical portion of the marks, we
also have considered the marks in their entireties. In this case, we find that the strong
similarities in the marks’ appearance, sound, connotation, and commercial
impression due to the shared wording TOAST outweigh the differences and that,
when viewed as a whole, the marks are more similar than dissimilar.
This DuPont factor weighs in favor of likelihood of confusion.
B. Similarity or Dissimilarity of the Goods and Trade Channels
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration,’” while the third
DuPont factor considers “the similarity or dissimilarity of established, likely-to-
Serial No. 88123524
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continue trade channels.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047,
1051 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 567). Our analysis under these
factors is based on the identifications of goods in the application and the cited
registration. Id.; Stone Lion, 110 USPQ2d at 1161-63.
We first consider the relatedness of the goods. Applicant’s goods are “Servingware
for serving food and drinks” and “Decorative wall hangings, not of textile.”
Registrant’s goods are
Busts of Porcelain; Cocktail glasses; Colored sheet glass;
Common sheet glass; Containers for household use,
namely, glass bulbs; Decorative centerpieces of Porcelain;
Decorative glass; Decorative small glass bottles containing
saw dust memorabilia; Drinking glasses; Drinking glasses,
namely, tumblers; Drinking straws of glass; Enamelled
glass; Figured plate glass, not for building; Food preserving
jars of glass; Fruit bowls of glass; Glass beverageware;
Glass bowls; Glass carafes; Glass dishes; Glass floor vases;
Glass for decorative purposes, namely, sea glass; Glass
jars; Glass mosaics not for buildings; Glass mugs; Glass
pans; Glass rods and bars; Glass storage jars; Glass tubes
not for scientific purposes; Ground plate glass; Industrial
packaging containers of glass or porcelain; Jars for jams
and jellies of Porcelain; Luminous glass; Martini glasses;
Modified sheet glass; Mosaic art tiles made of glass and
ceramic; Mosaics of glass and ceramic tiles, not for
construction; Mosaics of glass, not for buildings; Opal glass;
Opaline glass; Ornamental glass spheres; Pilsner drinking
glasses; Plaques of Porcelain; Polished plate glass;
Preserve glasses; Pressed glass; Sculptures of Porcelain;
Smoothed plate glass; Speckled glass; Spun glass; Stained
glass figurines; Stamped glass; Tempered glass; Works of
art made of glass; Works of art made of porcelain.
In making this analysis, it is not necessary that the goods of Applicant and
Registrant be similar or even competitive to support a holding of likelihood of
confusion. It is sufficient if the respective goods are related in some manner and/or
Serial No. 88123524
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that the conditions surrounding their marketing are such that they would be
encountered by the same persons under circumstances that could, because of the
similarity of the marks used thereon, give rise to the mistaken belief that they
emanate from, or are associated with, the same source. Coach Services, 101 USPQ2d
at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
Applicant argues that its goods are custom-made while Registrant’s goods are
ready-made, pointing to evidence it submitted of Applicant’s and Registrant’s
websites. However, we may not limit, by resort to extrinsic evidence, the scope of
goods as identified in the cited registration or in the subject application. In re Bercut-
Vandervoort & Co., 229 USPQ 763, 764 (TTAB 1986). Both Applicant’s identification
and Registrant’s identification are unrestricted and broadly worded to include ready-
made and custom-made goods, and therefore, we do not restrict our analysis to
custom-made or ready-made goods. See In re Elbaum, 211 USPQ 639, 640 (TTAB
1981) (unrestricted and broad identifications are presumed to encompass all goods of
the type described). See also In re Hughes Furniture Industries, 114 USPQ2d 1134,
1137 (TTAB 2015) (although the record showed that Registrant offered handcrafted
furniture, because the involved application and registration were unrestricted, the
Board must assume that that Applicant’s and Registrant’s brands of residential and
commercial furniture would encompass furniture of all types, both hand-crafted and
mass-produced, and that the furniture would be sold to the general public under the
same conditions).
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Applicant also argues that most of its goods are vastly different from Registrant’s
54 offerings. However, “it is sufficient for finding a likelihood of confusion if
relatedness is established for any item encompassed by the identification of goods
within a particular class in the application.” In re Aquamar, Inc., 115 USPQ2d 1122,
1126 n.5 (TTAB 2015); see also Tuxedo Monopoly, Inc. v. General Mills Fun Group,
648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
We turn first to Applicant’s Class 21 servingware for serving food and drink.
The Examining Attorney submitted website evidence to show the relatedness of
the goods. The Examining Attorney’s website evidence shows that servingware and
glass beverageware and drinking glasses, although specifically different, are closely
related items which are purchased in the same retail outlets by the same class of
purchasers and are used together. In particular, links to both servingware and glass
beverageware and drinking glasses are offered on the same webpage, including some
under the same mark. See In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047,
1050 (Fed. Cir. 2018) (crediting relatedness evidence that third parties use the same
mark for the goods and services at issue because “[t]his evidence suggests that
consumers are accustomed to seeing a single mark associated with a source that sells
both”). These goods are shown together on the webpages and shown being used
together. See e.g., In re Anchor Hocking Corp., 170 USPQ 424 (TTAB 1971) (glass
tableware and china dinnerware although specifically different are closely related
items which are purchased in the same retail outlets by the same class of purchasers,
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possibly at the same time for conjoint use or for display at the dining room or kitchen
table). See for example the following excerpts from the submitted website printouts:
7

8

7 January 14, 2019 Office Action at TSDR 48, 49, macys.com.
8 July 24, 2019 Office Action, at TSDR 89, zgallerie.com.
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9

10

9 July 24, 2019 Office Action, at TSDR 58, potterybarn.com.
10 July 24, 2019 Office Action, at TSDR 52, 54, potterybarn.com.
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11

12

11 January 14, 2019 Office Action at TSDR 93, crateandbarrel.com.
12 January 14, 2019 Office Action at TSDR 77, crateandbarrel.com.
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13
The Examining Attorney also submitted third-party registrations covering a
variety of home goods to show relatedness. Third-party registrations “may have some
probative value to the extent that they serve to suggest that the listed goods and/or
services are of a type that may emanate from a single source.” In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993).
We find that the third-party registration evidence corroborates the website
evidence to suggest that servingware and glass beverageware and drinkware
emanate from the same source. Probative registrations for Class 21 include
Registration Nos. 4667882, 5787806, 5578673, and 5588196.
We find this evidence sufficient to establish that Applicant’s Class 21 goods are
related to Registrant’s goods.
We next consider Applicant’s goods in International Class 27, which are identified
as “Decorative wall hangings, not of textile.”
Applicant argues that Registrant does not offer wall hangings and its registration
covers Class 21, not Class 27 goods. However, the classification system has no bearing
on the issue of likelihood of confusion. Detroit Ath. Co., 128 USPQ2d at 1051
(“Classification is solely for the ‘convenience of Patent and Trademark Office
administration,’ 15 U.S.C. § 1112, and ‘is wholly irrelevant to the issue of

13 July 24, 2019 Office Action, at TSDR 111, westelm.com.
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registrability under section 1052(d), which makes no reference to classification.’”)
(citation omitted).
Applicant also argues that “while both [parties’ goods] may be very broadly
construed as home goods, that does not necessitate that the products are so related
that customers would confuse Applicant’s decorative wall hangings with Registrant’s
glassware.” 4 TTABVUE 12. As stated, goods can be related in several ways, one of
which is through the circumstances surrounding their marketing. The Examining
Attorney has submitted evidence that the goods bear a commercial relationship in
that the goods are of the type that come from a common source.
The Examining Attorney submitted website evidence from various retail store
home furnishing lifestyle websites. This evidence shows that these retailers offer
glassware and drinkware as well as wall hangings, wall décor or wall art, including
some under the same mark. Although these goods are not are featured on the same
pages as glassware and drinkware and sold in a different category, the evidence
establishes that consumers would expect to find these type of goods offered by home
lifestyle retailers and their websites. We note that the landing pages of the websites
include links to all the categories of goods offered by the retailer, including the
categories “Tabletop,” or “Kitchen,” or “Kitchen and Dining,” or “Dining and
Entertaining” for servingware and drinkware goods and the categories of “décor,” or
“wall art,” or “art” for decorative non-textile wall hangings. January 14, 2019 Office
Action at TSDR 66; July 24, 2019 Office Action at TSDR 50, 88, 103.
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In addition, the Examining Attorney submitted third-party registration evidence
which further corroborates the relationship between the goods. See e.g., Registration
Nos. 5417574, 5623898 and 5316332. This evidence is sufficient to establish the
relatedness of Registrant’s goods with Applicant’s Class 27 goods.
The second DuPont factor weighs in favor of a finding of likelihood of confusion.
As to trade channels, both Applicant’s and Registrant’s identifications are
unrestricted, and we must presume that Applicant’s and Registrant’s goods move in
all channels of trade normal for such goods and are available to all potential
purchasers. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842,
1846 (Fed. Cir. 2000) (affirming Board finding that where the identification is
unrestricted, “we must deem the goods to travel in all appropriate trade channels to
all potential purchasers of such goods.”)
The website evidence referred to above shows that a normal trade channel for
Applicant’s and Registrant’s goods is an Internet retail website featuring home goods.
Thus, the goods are offered in at least one similar trade channel. Additionally, the
marketplace evidence set out above reflects that these goods reach the same
consumers by being offered through the same websites. Thus, we find that at a
minimum, the trade channels and classes of consumers overlap.
This DuPont factor also weighs in favor of likelihood of confusion.
C. Conditions of Sale
We next consider “the conditions under which and the buyers to whom sales are
made.” DuPont at 567.
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Applicant argues that the purchasers for Applicant’s products are “hospitality
professionals” that collaborate with Applicant’s team to “curate unique, memorable
and shareworthy experiences for their clientele.” 4 TTABVUE 22. In particular,
Applicant argues that
Purchasing these services and products for commercial
purposes requires time and careful consideration. This is
far different than Registrant’s products which may be
purchased on impulse for home use and décor. Where
Registrant’s products may be bought by any consumer,
perhaps for a family member’s Christmas gift or as a
centerpiece for the dinner table, Applicant’s
products/services require sophisticated purchasers making
an informed decision to suit their business needs. Id.
Applicant relies on the printouts from Applicant’s website. Applicant’s website
states that it is “devoted to hospitality professionals” and that it provides custom
designed goods to enhance the culinary experience, including custom servingware
and custom signage. June 17, 2019 Response to Office Action, at TSDR 2; September
15, 2019 Request for Reconsideration at TSDR 9-11.
However, as noted above, we may not resort to extrinsic evidence to restrict the
price or nature of the descriptions of goods. See In re Bercut-Vandervoort & Co., 229
USPQ at 764 (evidence that relevant goods are expensive wines sold to discriminating
purchasers must be disregarded given the absence of any such restrictions in the
application or registration).
And while perhaps consumers of custom goods might exercise greater care,
because Applicant’s identification is not limited to custom goods sold at a high price
point, we must consider all types of servingware and decorative non-textile wall
hangings, including those mass produced and sold at lower prices to the less
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knowledgeable consumer. See e.g., In re Hughes Furniture Industries, 114 USPQ2d
at 1137 (although acknowledging that customers are likely to exercise more care in
purchasing custom furniture, the Board considered all types of residential furniture
including custom and mass-produced sold to the less knowledgeable consumer due to
unrestricted identification). The website evidence in the record shows that
servingware and decorative non-textile wall hangings include ordinary consumer
goods sold at modest price points.
We deem this DuPont factor neutral.
IV. Conclusion
After considering all of the evidence of record and arguments pertaining to the
DuPont likelihood of confusion factors, we find that there is a likelihood of confusion
between Applicant’s applied-for mark and Registrant’s registered mark.
Decision: The refusal to register Applicant’s mark TOAST TAP & PROVISIONS
is affirmed.