Another Broken Egg of Florida, Inc.

Trademark Trial and Appeal Board

Sep 27, 2001

No. 75649851 (T.T.A.B. Sep. 27, 2001)

9/27/01

Paper No. 8
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Another Broken Egg of Florida, Inc.
d/b/a Another Broken Egg Café
________

Serial No. 75/649,851
_______

Gregory C. Smith, Esq. of Garvey, Smith, Nehrbass & Doody,
L.L.C. for Another Broken Egg of Florida, Inc., d/b/a
Another Broken Egg Café.

Allison Hall, Trademark Examining Attorney, Law Office 103
(Michael Hamilton, Managing Attorney).
_______

Before Cissel, Hairston and Bottorff, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

An application has been filed Another Broken Egg of
Florida, Inc., d/b/a Another Broken Egg Café to register
the mark shown below for restaurant services.1

1 Application Serial No. 75/649,851 filed March 1, 1999, alleging
first use on August 18, 1998. The word “CAFÉ” has been
disclaimed apart from the mark as shown. The drawing is lined
for the colors yellow, red and brown. Applicant states that “The
mark consists of a design of a rooster in front of a sun with a
cracked egg at his feet with the words ANOTHER BROKEN EGG CAFÉ
beneath the image.”
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/649,851
2

The Trademark Examining Attorney has refused
registration under Section 2(d) of the Trademark Act on the
ground that applicant’s mark, when used in connection with
applicant’s services, as resembles the mark BROKEN EGG for
restaurant services,2 as to be likely to cause confusion.

2 Registration No. 1,116,493 issued to Broken Egg Enterprises,
Inc. (California corporation) on April 10, 1979; renewed.
Ser No. 75/649,851
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When the refusal was made final, applicant
appealed. Applicant and the Examining Attorney have filed
briefs, but no oral hearing was requested.
Our determination under Section 2(d) of the Act is
based on analysis of all of the probative facts in evidence
that are relevant to the factors bearing on the likelihood
of confusion issue. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In any likelihood
of confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods and/or services.
Turning first to the services, we note that the
services of applicant and registrant are identical.
Moreover, in the absence of any limitations in either the
application or registration, we must presume that
applicant’s restaurant services and registrant’s restaurant
services are offered to same classes of customers, i.e.,
the general public.
Turning next to a consideration of the marks, we begin
our analysis of whether confusion is likely by keeping in
mind two propositions set forth by the Court of Appeals for
the Federal Circuit. First, “when marks would appear on
virtually identical goods or services, the degree of
similarity necessary to support a conclusion of likely
Ser No. 75/649,851
4
confusion declines.” Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992). Second, in articulating reasons for
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 give to a
particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their
entireties. In re National Data Corp., 753 F.2d 1956, 224
USPQ 749, 751 (Fed. Cir. 1985).
In comparing applicant’s mark ANOTHER BROKEN EGG CAFÉ
and design with registrant’s mark BROKEN EGG, we find the
commercial impressions engendered by the marks to be
sufficiently similar that, when the marks are use in
connection with identical services, purchasers are likely
to be confused. In the present case, applicant’s mark is
dominated by the words ANOTHER BROKEN EGG CAFÉ which are
very similar to registrant’s mark BROKEN EGG. Applicant
has disclaimed exclusive rights to use CAFÉ, thereby
acknowledging the descriptiveness of the word with respect
to restaurant services. Further, although the design
element in applicant’s mark, i.e., the rooster in front of
a sun with a cracked egg at his feet, is certainly a
noticeable part of applicant’s mark, it is insufficient to
Ser No. 75/649,851
5
distinguish the marks because it reinforces the connotation
of the words BROKEN EGG. Finally, the addition of the term
ANOTHER in applicant’s mark does not change the overall
commercial impression of the mark. In fact, the term
ANOTHER gives the impression that applicant’s restaurant is
another in a chain or family of BROKEN EGG restaurants.
In sum, we conclude that purchasers familiar with
registrant’s BROKEN EGG restaurant services would be likely
to believe, upon encountering applicant’s restaurant
services offered under the mark ANOTHER BROKEN EGG CAFÉ and
design, that such services originated with or were somehow
associated with or sponsored by the same entity.
Decision: The refusal to register is affirmed.

Ser No. 75/649,851
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