Almanac Hotels GmbH

Trademark Trial and Appeal Board

Jul 7, 2020

79226104 (T.T.A.B. Jul. 7, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: July 7, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Almanac Hotels GmbH
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Serial No. 79226104
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Sarah M. Stemer, Lerner Greenberg Stemer LLP,
for Almanac Hotels GmbH.
Michael Eisnach, Trademark Examining Attorney, Law Office 104,
Zachary Cromer, Managing Attorney.
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Before Mermelstein, Shaw and Hudis,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Almanac Hotels GmbH (“Applicant”) seeks registration on the Principal Register
of the mark ALMANAC, in standard characters, for a variety of goods and services in
International Classes 3, 5, 16, 21, 22, 24, 29, 30, 32, 34, 35, and 41, as well as the
following services in International Class 43:
Providing temporary accommodation; rental of furniture,
rental of lighting apparatus other than for theatrical sets
or television studios for presentations, meetings,
conferences, tradeshows or displays, rental of chairs,
tables, table linen, glassware, and table settings; animal
boarding; Hotels, hostels and boarding houses, holiday and
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tourist accommodation being the provision of temporary
accommodation, accommodation bureaux, in the nature of
hotels, boarding houses, boarding house bookings,
boarding houses, hotel reservations, hotels, motels;
providing conference event facilities and meeting facilities,
rental of meeting rooms; Rental of furniture, linens and
table settings, rental of lighting apparatus for
presentations, meetings, conferences, tradeshows or
displays, other than for theatrical sets or television studios,
rental of chairs, tables, table linen, glassware.1
Registration has been refused as to these services in class 43 under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when
used with the services, so resembles the mark ALMANAC,2 in standard characters,
for services identified as “Restaurant, bar, pub, [and] brew pub,” as to be likely to
cause confusion, mistake or deception.
When the refusal was made final, Applicant appealed and requested
reconsideration. The Examining Attorney denied the request for reconsideration, and
the appeal resumed. Applicant and the Examining Attorney filed briefs. We affirm
the refusal to register as to the services in Class 43 only.
Analysis
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence 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

1 Application Serial No. 79226104, filed on May 23, 2017 under Section 66(a) of the
Trademark Act, 15 U.S.C. § 1141f(a), based on International Registration No. 1387258,
registered May 23, 2017, and claiming priority as of November 24, 2016.
2 Registration No. 5156342, issued March 7, 2017 from an application filed on January 28,
2013.
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Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the services and the similarities between the marks. 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 goods [or services] and differences in the marks.”).
A. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression
We begin with the similarity of the marks. Applicant’s mark, ALMANAC, in
standard characters, is identical to the mark in the cited registration, ALMANAC,
also in standard characters, in “appearance, sound, connotation and commercial
impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177
USPQ at 567). Applicant does not dispute this. In view thereof, the DuPont factor of
the similarity of the marks weighs heavily in favor of a finding of likelihood of
confusion.
B. Similarity or Dissimilarity of the Services and Channels of Trade
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
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). We must make our
determinations under these factors based on the services as they are identified in the
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application and cited registration. See In re Dixie Rests. Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys.,
Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990).
Where, as here, the marks of the respective parties are identical, the relationship
between the services need not be as close to support a finding of likelihood of confusion
as would be required if there were differences between the marks. In re Shell Oil Co.,
992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993); In re Iolo Techs., LLC, 95
USPQ2d 1498, 1499 (TTAB 2010). Likelihood of confusion must be found as to the
entire class if there is likely to be confusion with respect to any service that comes
within the recitation of services in that class. Tuxedo Monopoly, Inc. v. Gen. Mills
Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Applicant’s services include the provision of “Hotels, hostels and boarding houses,
holiday and tourist accommodation being the provision of temporary
accommodation,” whereas the cited mark is registered for use in connection with
“Restaurant, bar, pub, [and] brew pub” services. The Examining Attorney argues that
“hotel and restaurant services are commonly provided by the same entity, under the
same mark, to the same consumer via the same trade channels.”3 In support of the
refusal the Examining Attorney introduced the following ten internet webpage

3 Examining Attorney’s Br., p. 9, 10 TTABVUE 9.
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printouts demonstrating that hotels provide restaurant services under the same
mark, and in some cases both services can be reserved online at a single website:
 Planet Hollywood operates a restaurant in Las Vegas, Nevada along with a
hotel and casino under the same mark, and reservations for both can be made
via its website.4
 The Inn at Little Washington operates a hotel and restaurant in Washington,
Virginia under the same mark, and reservations for both can be made via its
website.5
 Hard Rock operates a number of hotels, restaurants and bars worldwide under
the house mark HARD ROCK.6
 Auberge Du Soleil operates a hotel and restaurant in Napa Valley, California.7
 Farmhouse Inn operates a hotel and restaurant under the same mark in
Sonoma County, California, and reservations for both can be made via its
website.8
 Wheatleigh operates a hotel and restaurant under the same mark in the
Berkshire Mountains of New York.9

4, Office Action of May 8, 2019, pp. 15-23.
5 Id. at 24-25.
6 Id. at 26-34.
7 Id. at 35-38
8 Id. at 39-40.
9 Id. at 41-43.
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 Leku Ona operates a hotel and restaurant under the same mark in Boise,
Idaho.10
 Beach Plum Inn and Restaurant operates a hotel and restaurant under the
same mark in Menemsha, Massachusetts.11
 Blantyre operates a hotel and restaurant under mark a mark incorporating
the name of the hotel in Lenox, Massachusetts, and reservations for both can
be made via its website.12
 Salamander Resort and Spa operates a hotel and restaurant under mark a
mark incorporating the name of the hotel in Middleburg, Virginia.13
We find these excerpts, although somewhat limited in number, to be sufficient to
establish that hotel services and restaurant services are related in that they are of a
type that commonly originate from the same source, are used by the same consumers,
and serve complementary purposes. In re Davey Prods. Pty Ltd., 92 USPQ2d 1198,
1202-04 (TTAB 2009). We note that the definition of “hotel” includes the provision of
meals: a “hotel” is defined as “an establishment that provides lodging and usually
meals, entertainment, and various personal services for the public.”14

10 Id. at 44-45.
11 Denial of Request for Reconsideration of November 27, 2019, pp. 4-19.
12 Id. at 20-25.
13 Id. at 26-35.
14 Https://www.merriam-webster.com/dictionary/hotel. 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)
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In addition, because the identification of services in the application and
registration do not include any restrictions or limitations as to trade channels, we
presume the respective services are or would be marketed in all normal trade
channels for such services. See, e.g., Levi Strauss & Co. v. Abercrombie & Fitch
Trading Co., 719 F.3d 1367, 1373, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013); In re
Thor Tech, Inc., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have no authority to read
any restrictions or limitations into the registrant’s description of goods.”); In re Jump
Designs, LLC, 80 USPQ2d 1370, 1374 (TTAB 2006). Thus, the Examining Attorney’s
evidence also establishes that hotel services and restaurant services are offered
through the same channels of trade to the same consumers.
Applicant argues that “[m]any hotels do have restaurants inside, but often times
they are independently owned or marketed under a separate name. . . . It is entirely
more common to have a hotel restaurant with a different name.”15 In support,
Applicant attached five internet webpage printouts from hotels featuring restaurants
with different names.16 This argument is unpersuasive. The fact that some hotels
may have restaurants with different names does not rebut the Examining Attorney’s
evidence that other hotels offer restaurant services under the same name as the hotel.
It is well settled that Applicant’s and Registrant’s services do not have to be
identical or directly competitive to support a finding that there is a likelihood of
confusion. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471,

15 Applicant’s Br., p. 3, 8 TTABVUE 7.
16 Request for Reconsideration of November 8, 2019, pp. 8-10.
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1475 (Fed. Cir. 2000). Rather, it is sufficient if the respective services are related in
some manner or 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 in connection therewith, give rise to the mistaken
belief that they emanate from or are associated with a single source. In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785 (TTAB 1993). Indeed, Applicant’s original
recitation of services in Class 43 included “services for providing food and drink,”
which Applicant deleted after the Section 2(d) refusal to register was made final by
the Examining Attorney.17 Thus, when Applicant filed the application, Applicant
expressed a bona fide intention to use its ALMANAC mark in connection with both
hotel services and provision of “food and drink.” See Section 66(a) of the Trademark
Act, 15 U.S.C. § 1141f(a).
Relying on Jacobs v. Int’l Multifoods Corp., 668 F.2d 1234, 1236, 212 USPQ 641,
642 (CCPA 1982) and In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063
(Fed. Cir. 2003), Applicant argues that “because hotels and restaurants are not
inherently similar, there would need to be more evidence supporting the conclusion
that hotels and restaurants bearing the same name is common practice.”18 That is,
the Examining Attorney’s evidence is insufficient to support the refusal because
“something more” is required. Jacobs, 212 USPQ at 642. In Jacobs, the court held
that “[t]o establish likelihood of confusion a party must show something more than

17 Request for Reconsideration of April 3, 2019.
18 Applicant’s Br., p. 4, 8 TTABVUE 8.
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that similar or even identical marks are used for food products and for restaurant
services.” Id. In Coors Brewing, the court determined that evidence showing only a
very small percentage of restaurants sell private label beer suggests that it is
uncommon for restaurants and beer to share the same trademark. Coors Brewing, 68
USPQ2d at 1063-64. In Coors Brewing, the court reasoned that given the large
number of food items sold by restaurants, a bright line rule holding any food items
and restaurants to be related would be unduly burdensome:
[I]n light of the very large number of restaurants in this
country and the great variety in the names associated with
those restaurants, the potential consequences of adopting
such a principle would be to limit dramatically the number
of marks that could be used by producers of foods and
beverages.
Id. at 1064.
Applicant’s reliance on these cases is unavailing because the same logic does not
apply to hotels and restaurant services. As noted above, both Jacobs and Coors
Brewing involved goods versus services. In such cases, “something more” was needed
to establish the relatedness of tea or beer and restaurant services. Here, we have only
the services recited in Class 43 of the ALMANAC application and the cited
ALMANAC registration. Therefore, “something more” is not required to establish the
relatedness of the services. Unlike in Coors Brewing, where restaurants were found
to rarely sell private label beer, the offering of lodging and restaurant services is
sufficiently common that it is clear that consumers are accustomed to seeing such
services offered under the same mark. See, e.g., In re Summit Hotel Corp., 220 USPQ
927 (TTAB 1983) (restaurants and hotels offer complementary services to the same
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general class of consumers); Venture Out Props. LLC v. Wynn Resorts Holdings LLC,
81 USPQ2d 1887, 1893 (TTAB 2007) (hotel services and restaurant, bar, and cocktail
lounge services, inter alia, are of a type that may emanate from a single source in
connection with the same mark); In re Binion, 93 USPQ2d 1531, 1535 (TTAB 2009)
(close relationship between hotel and bar services, inter alia, and restaurant
services); Bonaventure Assocs. v. Westin Hotel Co., 218 USPQ 537 (TTAB 1983)
(restaurant services are an integral part of hotel services).
The DuPont factors relating to the similarity of the services and channels of trade
favor a finding of likelihood of confusion.
C. Consumer sophistication
Applicant argues, without evidence, that the sophistication of its customers
reduces the likelihood of confusion:
[T]he sophistication of Applicant’s consumers is of
heightened importance when making the argument that
the restaurant and hotel services are related. Applicant
does not feature any of Registrants [sic] restaurants.
Further, Applicant’s hotels are luxury 5-star hotels and
would not feature such casual restaurants as “pubs” or
“brew pubs,” such as listed in the Registration.19
This argument is unavailing as well. Counsel’s arguments are not evidence, and
we will not rely on them. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d
1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d
1276, 1284 (Fed. Cir. 2005) (“Attorney argument is no substitute for evidence.”)). It
also is well settled that we must make our determinations as to a likelihood of

19 Applicant’s Br., p. 5, 8 TTABVUE 9.
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confusion based on the services as they are identified in the application and cited
registration. Dixie Rests., 41 USPQ2d at 1534; Stone Lion, 110 USPQ2d at 1161.
Thus, Applicant may not restrict the scope of its services or the scope of the services
covered in the registration by extrinsic argument or evidence. See, e.g., In re La
Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008); In re Bercut-Vandervoort & Co.,
229 USPQ 763, 764-65 (TTAB 1986).
This DuPont factor, customer sophistication, is neutral.
D. Conclusion
Because the marks are identical, and the respective services are related and travel
in the same trade channels to the same classes of consumers, there is a likelihood of
confusion between Applicant’s mark, ALMANAC, for the services in class 43, and the
cited mark, ALMANAC.

Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act as to International Class 43 only is affirmed. Application Serial No.
79226104 will proceed to publication with the remaining classes.