Anastasia Confections, Inc.

Trademark Trial and Appeal Board

Jan 14, 2021

87588050 (T.T.A.B. Jan. 14, 2021)

This Opinion is not a
Precedent of the TTAB
Mailed: January 14, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Anastasia Confections, Inc.
_____

Serial No. 87588050
_____

James David Johnson of Johnson & Martin, P.A.,
for Anastasia Confections, Inc.

Lisa A. Papale, Trademark Examining Attorney, Law Office 122,
Kevin Mittler, Managing Attorney.
_____

Before Cataldo, Greenbaum, and Johnson,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, Anastasia Confections, Inc., seeks registration on the Principal
Register of the mark displayed below, identifying “coconut and chocolate confections;
cookies; chocolates; chocolate snacks; baked goods, namely, cookies, chocolate-based
bakery goods, and coconut-based bakery goods” in International Class 30.1

1 Application Serial No. 87588050 was filed on August 29, 2017, based on Applicant’s
assertion of a bona fide intent to use the mark in commerce under Section 1(b) of the
Trademark Act. 15 U.S.C. § 1051(b). The application includes the following description of the
mark and color statement:
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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 a
likelihood of confusion with the registered mark THE TASTE OF PARADISE, in
typed characters2 identifying “processed macadamia nuts” in International Class 29.3
After the Trademark Examining Attorney made the refusal final, Applicant filed
a request for reconsideration and appealed to this Board.4 We affirm the refusal to
register.
I. Likelihood of Confusion

We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the

The mark consists of The wording “ANASTASIA” in stylized font above the
wording “TASTE OF PARADISE” in stylized font with an image of three palm
trees on an island surrounded by water above the wording, the foregoing within
an oval design, all imposed in the foreground of an oval surrounded by a larger
oval. Color is not claimed as a feature of the mark.
2 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
A typed mark is the legal equivalent of a standard character mark. In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012) (“until 2003, ‘standard character’
marks formerly were known as ‘typed’ marks, but the preferred nomenclature was changed
in 2003 to conform to the Madrid Protocol … we do not see anything in the 2003 amendments
that substantively alters our interpretation of the scope of such marks”).
3 Registration No. 1370368 issued on the Principal Register on November 12, 1985. Section 8
and 15 affidavits accepted and acknowledged. Second Renewal.
4 Page references to the application record are to the downloadable .pdf version of the
USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs
on appeal are to the Board’s TTABVUE docket system.
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factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Guild Mortg. Co., 912
F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019).
We have considered each DuPont factor for which there is evidence and argument
of record. 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 determination.”); see also 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) (“Not all of
the DuPont factors are relevant to every case, and only factors of significance to the
particular mark need be considered.”)). Two key considerations are the similarities
between the marks and the relatedness of the goods. 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 and differences in the marks.”); In re FabFitFun, Inc., 127
USPQ2d 1670, 1672 (TTAB 2018).

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A. The Goods and their Channels of Trade

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration,” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62
USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Applicant’s goods are “coconut and
chocolate confections; cookies; chocolates; chocolate snacks; baked goods, namely,
cookies, chocolate-based bakery goods, and coconut-based bakery goods” and the
goods in the cited registration are “processed macadamia nuts.”
In support of her contention that the goods are related, the Examining Attorney
introduced into the record pages from third-party websites for entities providing
goods under the same marks, trade names or company names that include both
Applicant’s goods and the goods identified in the cited registration. The following
examples are illustrative:
 Hamakua Macadamia Nut Company, offers chocolate candies, baked
goods and processed macadamia nuts (Office action dated October 3,
2017, TSDR p. 33-37 and Office action dated January 4, 2019, TSDR p.
2-3);

 Royal Hawaiian Orchards, offers chocolate candies and processed
macadamia nuts (Office action dated October 3, 2017, TSDR p. 38);

 Island Princess, offers chocolate candies and processed macadamia nuts
(Office action dated October 3, 2017, TSDR p. 39);

 Big Island Candies, offers chocolate candies, baked goods, and processed
macadamia nuts (Office action dated January 4, 2019, TSDR p. 4-16);

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 Dole Plantation, offers chocolate candies, coconut candies, baked goods,
and processed macadamia nuts (Office action dated January 4, 2019,
TSDR p. 17-19);

 Albanese Candy, offers chocolate candies, baked goods, and processed
macadamia nuts (Office action dated January 4, 2019, TSDR p. 20-25);

 Tropical Farms, offers chocolate candies and processed macadamia nuts
(Office action dated January 4, 2019, TSDR p. 26-33);

 Hilo Hattie, offers chocolate candies and processed macadamia nuts
(Office action dated October 1, 2019, TSDR p. 2-10);

 Hale Kai Lana, offers chocolate candies and processed macadamia nuts
(Office action dated October 1, 2019, TSDR p. 11-14);

 Makua Coffee Company, offers chocolate candies and processed
macadamia nuts (Office action dated October 1, 2019, TSDR p. 15);

 MacFarms, offers chocolate and coconut candies and processed
macadamia nuts (Office action dated May 18, 2020, TSDR p. 2-5); and

 Hawaii’s Local Buzz, offers chocolate candies, baked goods, and
processed macadamia nuts (Office action dated May 18, 2020, TSDR p.
6-11).

In addition, the Examining Attorney introduced screenshots from the website
belonging to the owner of the cited registration, indicating that Registrant also offers,
in addition to processed macadamia nuts, chocolate snacks and candies of the type
identified in the involved application (Office action dated October 3, 2017, TSDR 40-
43).
This evidence clearly demonstrates that numerous entities provide both
Applicant’s type of goods and Registrant’s goods under the same marks or names, and
is probative of the relatedness of these goods for likelihood of confusion purposes. See,
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e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re
Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB 2009).
Applicant argues:
None of Applicant’s goods are within the same international class as the
goods of the registrant nor are the goods related. Although Applicant’s
Mark and the Cited Mark are broadly related to food, Applicant and the
registrant each offer very different goods, appeal to very different
customers, and most obviously, serve completely separate markets.5

We disagree. First, the system for classification of goods and services was created
for the convenience of the Office, and has no bearing on the issue of likelihood of
confusion. The Court of Appeals for the Federal Circuit has stated that “classification
is wholly irrelevant to the issue of registrability under section 1052(d), which makes
no reference to classification. Cf. 15 U.S.C. § 1112….” Jean Patou, Inc. v. Theon, Inc.,
9 F.3d 971, 29 USPQ2d 1771, 1774 (Fed. Cir. 1993); see also In re Sailerbrau Franz
Sailer, 23 USPQ2d 1719, 1720 (TTAB 1992) (“[T]he fact that goods are found in
different classes has no bearing on the question of likelihood of confusion. The
separation of goods into the various classes of the classification schedule is merely a
convenience for the Office and is not intended as a commentary on their relationship
to one another in the marketplace.”); Nat’l Football League v. Jasper Alliance Corp.,
16 USPQ2d 1212, 1216 n.5 (TTAB 1990) (“The classification system was established
for the convenience of the Office rather than to indicate that goods in the same class
are necessarily related or that classification in different classes indicates that they
are not related.”).

5 Applicant’s brief; 7 TTABVUE 18.
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Second, the evidence discussed above clearly demonstrates that Applicant’s
various coconut and chocolate snacks and candies are offered by the same entities,
often under the same brands and marks, as the processed macadamia nuts identified
in the cited registration by Registrant and numerous third parties. Consumers are
able to distinguish Applicant’s goods from the goods in the cited registration;
however, that is not the standard. See, e.g., Hydra Mac, Inc. v. Mack Trucks, Inc., 507
F.2d 1399, 184 USPQ 351 (CCPA 1975) (“the confusion found to be likely is not as to
the products but as to their source”) (citation omitted). The test is not whether
consumers would be likely to confuse the goods themselves, but rather whether they
likely would be confused as to their source. In re Anderson, 101 USPQ2d 1912, 1919
(TTAB 2012). In this case, the evidence demonstrates that consumers are accustomed
to encountering both Applicant’s goods and the goods in the cited registration
provided, often under the same marks, by the same sources.
The third DuPont factor concerns “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.” Stone Lion Capital v. Lion Capital, 110 USPQ2d
at 1161 (quoting DuPont, 177 USPQ at 567). We are not persuaded by Applicant’s
conclusory statement that because its goods differ from the goods identified by the
registered mark, the goods are marketed to different consumers through different
trade channels.6 Because there are no limitations as to channels of trade or classes of
purchasers in the recitation of goods in the involved application or the cited
registration, we must presume that the identified goods move in all channels of trade

6 Applicant’s brief; 7 TTABVUE 16.
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normal for such goods and are available to all potential classes of ordinary consumers
thereof. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d
1253, 1261 (Fed. Cir. 2011); In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB
2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). It is the identifications of
goods that controls, not what unsupported argument or even, if it was present,
extrinsic evidence may show about the specific nature of the goods as provided in the
marketplace. Stone Lion, 110 USPQ2d at 1162; Midwest Gaming, 106 USPQ2d at
1165; In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986). As noted
above, the Examining Attorney has introduced evidence that the goods offered under
the involved mark and cited mark are offered for sale on the same webpages of
Registrant and also several third parties. This evidence supports a finding that these
goods are offered in at least one common channel of trade, that is, the websites
operated by these entities and, where applicable, their corresponding physical
locations.
Based upon the foregoing, we find that Applicant’s goods are related to the goods
identified in the cited registration and that such goods may be encountered in the
same channels of trade by the same classes of consumers. The second and third
DuPont factors weigh in favor of finding a likelihood of confusion.
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B. The Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s mark and the mark in the cited registration in their entireties, taking
into account their appearance, sound, connotation and commercial impression.
DuPont, 177 USPQ at 567; Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1160;
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Inn at St.
John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d
1810, 1812 (TTAB 2014)); accord Krim-Ko Corp. v. Coca-Cola Bottling 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.”).
“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal quotation marks omitted); see also
Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In
re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016). Consumers may not
necessarily encounter the marks in close proximity and must rely upon their
recollections over time. In re Mucky Duck Mustard, 6 USPQ2d 1467, 1468 (TTAB
1988), aff’d mem., 864 F.2d 149 (Fed. Cir. 1988).
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Applicant’s mark substantially adopts the wording of the
typed or standard character mark THE TASTE OF PARADISE in the cited
registration in its entirety, deleting the word THE, and adding the term ANASTASIA
and an island, palm tree and water design within an oval carrier. “Marks have
frequently been found to be similar where one mark incorporates the entirety of
another mark, as is the case here.” Coca-Cola Bottling Co. v. Joseph E. Seagram and
Sons, Inc., 526 F.2d 556, 188 USPQ 105, 106 (CCPA 1975) (BENGAL is similar to
BENGAL LANCER); Johnson Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ 155, 156 (TTAB
1982) (EBONY is similar to EBONY DRUM); In re S. Bend Toy Mfg. Co., 218 USPQ
479, 480 (TTAB 1983) (LIL’ LADY BUG is similar to LITTLE LADY); see also TiVo
Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1115 (TTAB 2019).
The omission of the term THE from Applicant’s mark is of no consequence. See
Jay-Zee, Inc. v. Hartfield-Zodys, Inc., 207 USPQ 269 (TTAB 1980) (“Since the
psychological and marketing impact of petitioner’s mark in its earlier version clearly
was derived from the word ‘IMAGE,’ the omission of the word ‘THE’ (the definite
article serving merely to emphasize ‘IMAGE’) from the later version did not interrupt
the continuity of use”); United States National Bank of Oregon v. Midwest Savings
and Loan Association, 194 USPQ 232, 236 (TTAB 1977) (“The definite article ‘THE’
likewise adds little distinguishing matter because the definite article most generally
serves as a means to refer to a particular business entity or activity or division
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thereof, and it would be a natural tendency of customers in referring to opposer’s
services under the mark in question to utilize the article ‘THE’ in front of ‘U-BANK’
in view of their uncertain memory or recollection of the many marks that they
encounter in their everyday excursion into the marketplace”). The wording (THE)
TASTE OF PARADISE in both marks suggests a laudatory feature of the identified
goods, namely that they are so delicious that they taste divine. Thus, the wording
common to the marks is nearly identical in appearance, meaning and sound.
Applicant’s mark also includes the prominently-sized term ANASTASIA
suggesting an individual, real or imaginary, who is the source of the goods and also
identifies Applicant. The term ANASTASIA is also prominently placed in the center
of the mark. We accordingly find this term to be visually dominant and equally
distinctive of the goods as TASTE OF PARADISE.
Applicant’s mark also includes the design of an island with
palm trees and surrounding water inside of a double oval carrier. This design is
equally sized as the wording and also appears to be distinctive as applied to
Applicant’s goods, further suggesting that the products identified thereby are
heavenly or divine in flavor. However, it is settled that where, as here, a mark is
comprised of both words and a design, the words are normally accorded greater
weight, in part because consumers are likely to remember and use the words to
request the goods. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed.
Serial No. 87588050

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Cir. 2012) (“the verbal portion of a word and design mark likely will be the dominant
portion”); In re Appetito Provisions Co. Inc., 3 USPQ2d 1553, 1554 (TTAB 1987) (“if
one of the marks comprises both a word and a design, then the word is normally
accorded greater weight because it would be used by purchasers to request the goods
or services” and “because applicant’s mark shares with registrant’s mark that
element responsible for creating its overall commercial impression, the marks are
confusingly similar”). There is nothing in the record to suggest that consumers will
utilize the design portion of Applicant’s mark to request its goods rather than the
more conventional wording.
We recognize the differences between the marks, namely, the prominently sized
term ANASTASIA and the tropical design that are not present in the registered
mark. Nonetheless, viewing the marks as a whole, we find purchasers may
reasonably assume, due to the nearly identical nature in sound, appearance,
connotation, and commercial impression between the wording TASTE OF
PARADISE in Applicant’s mark and THE TASTE OF PARADISE comprising the
whole of the registered mark, that Applicant’s goods offered under the
mark emanate from the same source as the goods in the cited
registration.
Upon evaluating Applicant’s mark and the registered mark, we find they are more
similar than dissimilar “in their entireties as to appearance, sound, connotation and
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commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 73 USPQ2d at 1691 (quoting du Pont, 177 USPQ at 567).
This DuPont factor weighs in favor of a finding of likelihood of confusion.
C. Strength of the Cited Mark
Finally, we consider the conceptual strength of the registered mark in relation to
processed macadamia nuts.7 In re FabFitFun, Inc., 127 USPQ2d at 1673. The
Examining Attorney submitted with her Office action dated October 3, 2017, TSDR
26-42, the definitions of terms comprising the cited mark: TASTE – “to ascertain the
flavor of by taking a little into the mouth;” and PARADISE – “a place or state of bliss,
felicity, or delight, heaven.”8
In the context of the goods identified in the cited registration, we find this
definition indicates that THE TASTE OF PARADISE evokes their delicious flavor.
Given this meaning, which at worst is only somewhat suggestive of a characteristic
or feature of the identified goods, the term appears to be inherently distinctive. The
inherent distinctiveness of the mark in the cited registration is further evidenced by
its registration on the Principal Register without a claim of acquired distinctiveness

7 There is little, if any, evidence of record regarding the commercial strength of the cited
mark. In an ex parte appeal, the owner of the cited registration is not a party, and the
Examining Attorney is under no obligation to demonstrate exposure to or recognition of the
cited mark in the marketplace. In re Integrated Embedded, 120 USPQ2d 1504, 1512 (TTAB
2016). For that reason, “in an ex parte analysis of the du Pont factors for determining
likelihood of confusion …, the ‘[commercial strength] of the mark’ … is normally treated as
neutral when no evidence as to [marketplace recognition] … has been provided.” TRADEMARK
MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 1207.01(d)(ix) (Oct. 2018). Thus, because
there is no evidence of record regarding the commercial strength of the cited mark, this
consideration is neutral.
8 Definitions retrieved from merriam-webster.com on October 9, 2017.
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under Section 2(f) of the Trademark Act. Tea Bd. of India v. Republic of Tea Inc., 80
USPQ2d 1881, 1899 (TTAB 2006). Section 7(b) of the Trademark Act, 15 U.S.C.
§ 1057(b), provides that a certificate of registration on the Principal Register shall be
prima facie evidence of the validity of the registration, of the registrant’s ownership
of the mark and its exclusive right to use the mark in connection with the goods or
services identified in the certificate.
We next consider Applicant’s argument concerning the number and nature of
third-party registrations of TASTE OF PARADISE formative marks. In support of its
position, Applicant introduced into the record with the April 3, 2018 response to
Office action, TSDR 13-22, copies of 8 registrations owned by 7 different entities,
retrieved from a search of the USPTO’s Trademark Electronic Search System
(“TESS”) database of applications and registrations that consist of or include the
wording TASTE OF PARADISE.9 All marks are in standard character unless
otherwise noted:
Reg. No. 1360907 for the mark TASTE OF PARADISE identifying “fresh
fruits and vegetables namely, avocados, pineapple, mangos, papaya,
coconuts, limes, environmentally grown tomatoes, cucumbers and
kiwifruit;”

Reg. Nos. 3418023 and 3539448, owned by the same entity for the mark
TASTE OF PARADISE identifying various travel agency services and
vacation real estate services;

Reg. No. 2813646 for the mark THE TASTE OF PARADISE identifying
“natural spring and artesian water for drinking;”

Reg. No. 3453374 for the mark A TASTE OF PARADISE! identifying
“coconut oil; olive oil; palm oil;”

9 At 16-33.
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Reg. No. 4155808 for the mark A TASTE OF PARADISE identifying a
Christian cooking show;

Reg. No. 4612084 for the mark DELIVERING THE DELICIOUS TASTE
OF PARADISE 24/7 identifying “import services, namely, arranging for the
transportation of the merchandise of others in the nature of fresh fruits
and vegetables;” and “providing a website featuring information and
recipes in the field of food;” and

Reg. No. 5358580 for the mark A TASTE OF PARADISE COCONUT
KENNY’S PIZZA SANDWICHES PREMIUM BREW and design
identifying “pizza parlors; restaurant; restaurant and bar services;
restaurant services; restaurant services featuring sandwiches.”

With regard to the third-party registration evidence, we note that the “existence
of [third party] registrations is not evidence of what happens in the market place or
that customers are familiar with them.” AMF Inc. v. American Leisure Prods.,
Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973). Nevertheless, in determining
the degree of weakness, if any, in the shared term, we must “adequately account for
the apparent force of [third-party use] evidence,” regardless of whether “specifics”
pertaining to the extent and impact of such use have been proven. Juice Generation,
Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-5 (Fed. Cir. 2015).
“[E]xtensive evidence of third-party use and registrations is ‘powerful on its face,’
even where the specific extent and impact of the usage has not been established.”
Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium
Sports, S.L.U., 797 F3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015), citing to Juice
Generation, 115 USPQ2d at 1674.
In this case, one of the eight third-party registrations, Reg. No. 5358580,
includes additional terms and a design that are wholly unlike any term in either the
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cited mark or the applied-for mark. In addition, two of the third-party registrations,
owned by the same entity, recite travel related services, while others recite a
Christian cooking show, restaurant services, and a variety of food and drink items.
None recites the goods, namely, processed macadamia nuts, identified in the cited
registration. In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed.
Cir. 2017) (disregarding third-party registrations for goods where the proffering party
“has neither introduced evidence, nor provided adequate explanation to support a
determination that the existence of I AM marks for goods in other classes, … support
a finding that registrants’ marks are weak with respect to the goods identified in their
registrations”); accord Hunt Foods & Indus., Inc. v. Gerson Stewart Corp., 367 F.2d
431, 151 USPQ 350, 353 (C.C.P.A. 1966). This evidence falls somewhat short of
supporting Applicant’s contention that the weakness of THE TASTE OF PARADISE
will cause consumers to distinguish between the marks based upon the “vast
abundance of marks containing the phrase.”10 Cf. In re FabFitFun, Inc., 127 USPQ2d
at 1675 (evidence of both third-party registration and use established that the shared
term in the marks at issue is suggestive of the goods and commercially weak).
Based on the totality of the evidence, we find that the shared wording TASTE OF
PARADISE has not been shown to be particularly weak. We find, as a result, that the
mark in the cited registration is entitled to an ordinary scope of protection to be
afforded an inherently distinctive mark. On balance, we do not believe that, on this

10 Applicant’s brief, 7 TTABVUE 15.
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record, the relative strength of the cited mark weighs significantly one way or the
other.
D. Conclusion
When we consider the record and the relevant likelihood of confusion factors, and
all of Applicant’s arguments relating thereto, including those arguments not
specifically addressed herein, we conclude that consumers familiar with the goods
offered under the mark in the cited registration would be likely to believe, upon
encountering the related goods under Applicant’s mark, that the goods originated
with or are associated with or sponsored by the same entity.
Decision: The refusal to register Applicant’s mark is affirmed under Section 2(d)
of the Trademark Act.