151 Foods, LLC

Trademark Trial and Appeal Board

Sep 22, 2020

87431981 (T.T.A.B. Sep. 22, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: September 22, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re 151 Foods, LLC
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Serial No. 87431981
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Nanda P.B.A. Kumar of Dilworth Paxson,
for 151 Foods, LLC.
Joshua Sturman, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.
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Before Thurmon, Deputy Chief Administrative Trademark Judge,
Taylor and Shaw, Administrative Trademark Judges.
Opinion by Taylor, Administrative Trademark Judge:
151 Foods, LLC (“Applicant”) seeks registration on the Principal Register of the
mark 151 FOODS (FOODS disclaimed at the request of the Examining Attorney), as
stylized below,

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for, as amended, “Bakery goods; bread; rolls; baguettes; French bread; Italian bread;
bread dough; bagels; pastries; and frozen confections” in International Class 30.1
The Trademark Examining Attorney has refused registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when
used on or in connection with the identified goods and services, so resembles the mark
151, in Registration No. 5481392, and the mark 151 COFFEE (COFFEE disclaimed),
in Registration No. 5481393, both in standard characters and both for:
“Beverages made of coffee; beverages with a coffee base;
coffee” in International Class 30;
“Energy drinks” in International Class 32; and
“Coffee shop services; drive-thru coffee-house and café
services; coffee bar services” in International Class 43,2
as to be likely to cause confusion, to cause mistake or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Applicable Law
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

1 Application Serial No. 87431981 was filed on May 1, 2017, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s claim of a bona fide intention to
use the mark in commerce. The description of the mark in the application reads:
“The mark consists of the following: The number ‘151’ in gold with a gradient of white and
the word ‘FOOD’ in red beneath; the color white in the background is not a feature of the
mark.” The colors white, gold and red are claimed as features of the mark.

2 Both registrations issued on May 29, 2018 and are owned by the same entity.
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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). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976). We discuss below these and other relevant factors. See In re
Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019) (Board
considers each DuPont factor for which there is evidence and argument).
Since both of the cited marks cover the same goods and services, for the sake of
judicial economy, we focus our analysis on cited Registration No. 5481392 (’392 Reg.)
for the mark 151. If confusion is likely between Applicant ’s mark and the mark in the
’392 Reg., there is no need for us to consider the likelihood of confusion with the other
cited mark. See, e.g., In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB
2010).
II. Discussion
A. Similarity of the Goods and Services and Trade Channels
We first consider the DuPont factors involving the similarity of the goods and
channels of trade. In making our determination regarding the similarity of the goods,
we must look to the goods as identified in the application and the cited registration.
See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
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1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput. Servs., Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Giovanni Food Co., 97
USPQ2d 1990, 1991 (TTAB 2011).
It is settled that it is not necessary that the respective goods and services be
identical or even competitive in order to find that they are related for purposes of our
likelihood of confusion analysis. Confusion may occur if the respective goods and
services are “related in some manner and/or if the circumstances surrounding their
marketing [be] such that they could give rise to the mistaken belief that [the goods
and services] emanate from the same source.” 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)); see also In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984); In re
Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991).
As noted above, Applicant’s identified goods are “bakery goods; bread; rolls;
baguettes; French bread; Italian bread; bread dough; bagels; pastries; and frozen
confections” and Registrant’s goods and services are “beverages made of coffee;
beverages with a coffee base; coffee, and energy drinks,” and “coffee shop services;
drive-thru coffee-house and cafe services; coffee bar services.”
The Examining Attorney made of record various use-based, third-party
registrations showing registration of the same mark by a single entity for one or more
of the bakery, bread or pastry items of the types identified in Applicant’s application
and one or more of the coffee and coffee-related goods and services identified in the
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cited registration.3 Third-party registrations that cover goods from both an
Applicant’s application and a cited registration are relevant to show that the services
are of a type that may emanate from a single source under one mark. See, e.g., In re
Detroit Athletic, 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018); Hewlett-
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir.
2002); In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re
Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck
Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). Record examples include:
Registration No. 5822613 for the mark THE CAP SOUL and design for “coffee” and
“bread and pastry and confectionary”; Registration No. 5860379 for the mark CAMEL
CROWN and design for “coffee” and “biscuits, cakes and bread”; Registration No.
5750348 for the design mark, , for “coffee” and “bread and cakes”; Registration
No. 5842822 for the mark REAUTE for “coffee” and “bread, pastry and confectionary”;
Registration No. 5750980 for the mark FLYING APRON for “coffee shops” and
“bakery goods and bread”; and Registration No. 5864266 for the mark APEXONE for
“coffee” and “pastries.”
The Examining Attorney also made of record printouts from the websites of Nate’s
Baked Goods & Coffee (https://www.natesbakedaustin.com),4 Peet’s Coffee

3 September 24, 2019 Final Office Action; TSDR 23-70. The registrations include other goods
and services. We did not consider those registrations that registered based on the registrant’s
claim of ownership of a foreign registration.
4 September 18, 2018 Office Action, TSDR 20-23.
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(https://www.peets.com),5 Starbucks (https://www.starbucks.com),6 Coffee Culture
Café & Eatery (https://www.coffeeculturecafe.com),7 Dunkin’
(https://www.dunkindonuts.com),8 and Godiva (https://www.godiva.com),9
establishing that it is common to find baked goods, breads, bagels, and pastries10 sold
together alongside coffee beverages in coffee shops and cafes under the same mark.
The record further shows that the third-party use evidence demonstrates that
coffee and baked goods and pastries are complementary goods that may be purchased
together and consumed together. This finding is confirmed in an article in Saveur
magazine (https://www.saveur.com) titled “THESE 13 BAKED GOODS ARE
PERFECT WITH A MUG OF COFFEE,” highlighting, e.g., brown butter tarts with
blackberries, all-butter biscuits, Cretan fried cheese pastries, and sour cherry and
pistachio danish.11 Another article from “delish” (https://www.delishcom) titled “14
Delish Treats to Eat With Your Morning Coffee,” states that “… baked goods are what

5 March 20, 2019 Office Action; TSDR 17-22 and September 24, 2019 Final Office Action;
TSDR 18-22.
6 Id. at TSDR 27-32.
7 Id. at TSDR 25-26.
8 September 24, 2019 Final Office Action; TSDR 6-8.
9 Id. at TSDR 9-19.
10 We acknowledge that Applicant’s identification includes additional items. We need not find
similarity as to each and every product listed in Applicant’s description of goods. It is
sufficient for a refusal based on likelihood of confusion that relatedness is established for any
item encompassed by the identification of goods in a particular class in the application.
Tuxedo Monopoly, Inc. v. General Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015); Inter IKEA Sys. B.V. v.
Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014).

11 September 18, 2018 Office Action; TSDR 5-19.
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your cup of joe has been missing.”12 Where evidence shows that the goods at issue
have complementary uses, and thus are often used together or otherwise purchased
by the same purchasers for the same or related purposes, such goods have generally
been found to be sufficiently related such that confusion would be likely if they are
marketed under the same or similar marks. See Martin’s Famous Pastry Shoppe, 223
USPQ at 1290 (holding bread and cheese to be related because they are often used in
combination and noting that “[s]uch complementary use has long been recognized as
a relevant consideration in determining a likelihood of confusion”).
We accordingly find Applicant’s identified bakery and bread items to be related
and complementary to Registrant’s coffee and coffee drinks and coffee shop, coffee bar
and café services. Indeed, Applicant’s brief is silent on the issue of the relatedness of
the goods and services.
Nevertheless, Applicant maintains there is no likelihood of confusion because the
trade channels are different, specifically arguing:
Applicant’s purchasers are businesses who want to buy
baked goods wholesale and Applicant does not even provide
a retail storefront for retail purchasers to “walk-in” and
buy bakery items, however, in contrast, Registrant’s
purchasers are every-day retail consumers who typically
buy a single cup of coffee [through retail brick and mortar
shops].

12 Id. at TSDR 24-27.
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Applicant’s brief, pp. 10-11.13 Applicant also made of record web pages from
Applicant’s and Registrant’s websites showing the particular nature of the respective
businesses.14
However, like our analysis of the relatedness of the goods, we base our
determination regarding the similarities between the channels of trade and classes
of purchasers on the identifications in the subject application and the cited
registration. Octocom Sys. v. Hous. Comput., 16 USPQ2d at 1787; Canadian Imperial
Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987). Neither
Applicant’s application nor the cited registration contain any limitations as to
channels of trade or classes of customers, and we decline to read any such limitations
into them. Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed. Cir.
1983), quoted in In re Mr. Recipe, 118 USPQ2d 1084, 1091 (TTAB 2016). While
extrinsic evidence illuminate the normal trade channels for the involved goods or
services, we may not limit by argument and extrinsic evidence the scope of the goods
and services identified in the subject application and cited registration. E.g., In re
Dixie Rests. Inc., 105 USPQ2d, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); In re Fisher
Scientific Co., 440 F.2d 43, 169 USPQ 436, 437 (CCPA 1971); In re La Peregrina Ltd.,

13 4 TTABVUE 11-12.
14 Applicant’s September 20, 2019 Response; TSDR 10-11 and Applicant’s March 24, 2020
Request for Reconsideration; TSDR 8-18. Applicant also pointed to its YouTube video at
https://www.youtube.com/watch?v=Od5Dss7oZd8. However, the mere listing of a web
address is insufficient to make the webpage or media associated with that address of record,
see Int’l Dairy Foods Ass’n v. Interprofession du Gruyere, 2020 USPQ2d 10892, *7-8 (TTAB
2020), so this video has been given no consideration.
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86 USPQ2d 1645, 1646 (TTAB 2008); In re Bercut-Vandervoort & Co., 229 USPQ 763,
764 (TTAB 1986).
Accordingly, we must presume that Applicant’s goods and Registrant’s goods and
services move in all channels of trade that would be normal for such goods and
services, and that they would be purchased by all potential customers. See CBS Inc.
v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983); Squirtco v. Tomy, 216
USPQ at 939; In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). As noted
above, the record in this case shows that both coffee and coffee drinks, on the one
hand, and baked goods, breads and pastries, on the other hand, are sold at coffee
shops and cafés.
Thus, at a minimum, the channels of trade and classes of purchasers overlap.
The DuPont factors concerning the similarity of the marks, trade channels and
classes of consumers favor a finding of likelihood of confusion.
B. Sophistication of the Consumers
Applicant argues that confusion is not likely because its purchasers are wholesale
commercial entities which are sophisticated and negotiate large transactions,
whereas Registrant’s purchasers are every-day retail consumers who typically buy a
single cup of coffee. Applicant’s brief, p. 11 and 17.15 The problem with this argument
is that Applicant’s identification of goods does not limit its purchasers to wholesale
vendors. In the absence of such a limitation, even if some of the purchasers of

15 4 TTABVUE 12 and 18.
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Applicant’s goods are sophisticated and exercise care in their purchasing decisions,
we must consider that some would not. See Stone Lion, 110 USPQ2d at 1163 (Where
the purchasers consist of both professionals and the public, the standard of care for
purchasing the goods is that of the least sophisticated potential purchaser.).
Moreover, even knowledgeable and careful purchasers can be confused as to source,
where, as here, very similar marks are used in connection with overlapping goods and
services. 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.”)).
C. Market Interface
Applicant maintains that the DuPont factor involving market interface leans in
its favor, because “[t]he interfaces and methods in which wholesale businesses make
offers to other businesses … are completely different from the interfaces which a
retail consumer buys a single cup of coffee.” Applicant’s brief, p. 12.16 It is clear from
this argument, which goes to the channels of trade, that Applicant misapprehends
this factor. In the context of an ex parte appeal, the “market interface between
applicant and the owner of a prior mark” factor, as explained in DuPont, is whether
there is a consent to register or use, an agreement designed to preclude confusion, an

16 4 TTABVUE 13.
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assignment of the mark, or laches and estoppel. See In re Opus One, 60 USPQ2d 1812,
1819-22 (TTAB 2001). None of these situations is applicable to the present case.
D. Similarity or Dissimilarly of the Marks
We next consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. Stone Lion, 110
USPQ2d at 1160; DuPont, 177 USPQ at 567. We do not predicate our analysis on a
dissection of the involved marks; we consider the marks in their entireties. Stone
Lion, 110 USPQ2d at 1160; Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005,
212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected
and considered piecemeal; rather, it must be considered as a whole in determining
likelihood of confusion.”). However, there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of the
mark, provided the ultimate conclusion rests on a consideration of the marks in their
entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
That is, the issue 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 offered under the respective marks is likely to result. Coach Servs., 101
USPQ2d at 1721 (citation omitted). See also San Fernando Elec. Mfg. Co. v. JFD
Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977). The proper focus
is on the recollection of the average customer, who retains a general rather than
specific impression of the marks. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438
Serial No. 87431981
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(TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344
(TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
The average customer in this case are consumers of coffee, coffee drinks, baked goods
and pastries.
We compare Applicant’s mark with the cited registered mark, 151. The
number 151 is the dominant portion of Applicant’s mark because the word FOOD has
little to no source-indicating significance; the word FOOD is descriptive or generic for
Applicant’s bakery, bread and pastry items and has been disclaimed. As such, this
term is entitled to less weight in our determination. See In re Chatam Int’l Inc., 380
F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004) (descriptive terms are properly given
less weight). Also, the number 151 is the first and the most visually prominent portion
of Applicant’s mark, being much larger than the word FOOD. Moreover, as the first
portion of Applicant’s mark, 151 is most likely “to be impressed upon the mind of the
purchaser and remembered.” Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d
1895, 1897 (TTAB 1988) (“[I]t is often the first part of a mark which is most likely to
be impressed upon the mind of a purchaser and remembered.”). See also Palm Bay
Imps. Inc. v. Veuve Clicquot Ponsardin, 73 USPQ2d at 1692 (“Veuve” is the most
prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in
the mark and the first word to appear on the label); Century 21 Real Estate Corp. v.
Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon
encountering the marks, consumers will first notice the identical lead term).
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Regarding connotation, on this record the number 151 appears to be arbitrary
with respect to both the bakery items covered by Applicant’s mark and the coffee,
coffee drinks and coffee shop and café services in Registrant’s mark. Therefore,
despite Applicant’s unsupported contention to the contrary, we find no difference in
the connotations and commercial impressions between the marks.
We also find unavailing Applicant’s allusion that the distinctive font and coloring
in its mark creates a commercial impression dissimilar to that of the cited registered
mark. The problem with this argument is that Registrant is not limited to any
particular depiction of its mark. More explicitly, because Registrant’s mark is
registered in standard characters, Registrant is entitled to various depictions of its
standard character mark in terms of font style, size, or color; Registrant’s mark could
at any time in the future be displayed in a manner similar to Applicant’s mark, that
is, the number 151 that comprises the whole of Registrant’s mark could not only be
displayed in the same font style and size, but also in the arrangement of the
individual numbers. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909-
10 (Fed. Cir. 2012); Citigroup v. Capital City Bank, 98 USPQ2d at 1259. See also
Squirtco v. Tomy Corp., 216 USPQ at 939 (rejecting argument that a mark in
standard character format (typed) is distinct from a mark in a logo format; “[b]y
presenting its mark in a typed drawing, a difference cannot legally be asserted by
that party” (emphasis in original)); Proquest Info. and Learning Co. v. Island, 83
USPQ2d 1351, 1359 (TTAB 2007) (quoting Phillips Petroleum Co. v. C. J. Webb, Inc.,
442 F.2d 1376, 170 USPQ 35, 36 (CCPA 1971) (“[W]e must not be misled by
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considering [applicant’s] mark only in its printed or typewritten form, with all the
characters being of equal height.”)).
We are perplexed by Applicant’s arguments regarding “transposed marks” and
“material alterations.” Applicant’s mark is neither a transposition of Registrant’s
mark nor did Applicant seek to amend its mark and, therefore, there can be no
material alteration. We make clear that in making our decision on the similarity of
the marks, we do not consider Registrant’s mark to potentially include the word
FOOD.
While as Applicant points out, there are differences between the marks when
viewed on a side-by-side basis, we find that in their entireties, they are similar in
appearance, sound, connotation and commercial impression due to the shared
number 151.
The DuPont factor of the similarity of the marks thus favors a finding of likelihood
of confusion.
III. Conclusion
When we consider all of the arguments and evidence relating to the relevant
likelihood of confusion factors, we conclude that confusion is likely between
Applicant’s mark and the cited registered mark 151. We find so principally
due to the substantial similarity between the marks, the relatedness of the goods and
services, and the overlap in purchasers and trade channels.
Decision: The refusal to register Applicant’s mark is affirmed.