Curry in a Hurry Inc.v.Pure Indian Foods Corporation

Trademark Trial and Appeal Board

Feb 10, 2021

91247388 (T.T.A.B. Feb. 10, 2021)

Mailed: February 10, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Curry in a Hurry, Inc.

v.

Pure Indian Foods Corporation
_____

Opposition No. 91247388
_____

Samuel Friedman of Samuel Friedman, P.C.
for Curry in a Hurry, Inc.

Andrew G. Morabito, Esq.
for Pure Indian Foods Corporation.
_____

Before Thurmon, Deputy Chief Administrative Trademark Judge, Wellington and
Johnson, Administrative Trademark Judges.

Opinion by Wellington:

Applicant, Pure Indian Foods Corporation, seeks registration of the mark CURRY
IN A HURRY (in standard characters) for “Organic curry sauces; Sauce mixes;
Sauces; Spice blends; Spice mixes; Spice rubs; Spices; Cooking sauces; Curry sauce;
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
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Curry spice mixture; Curry powder; Mixed spice powder; Organic spices; Ready-made
sauces; Savory sauces used as condiments” in International Class 30.1
Curry in a Hurry, Inc. (“Opposer”) filed a Notice of Opposition to registration of
Applicant’s mark on the ground of likelihood of confusion under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), based on Opposer’s alleged common law rights
accrued from its prior use of the mark CURRY IN A HURRY on goods that include
sauces, condiments, and related food products, and in connection with restaurant
services.2
I. Accelerated Case Resolution, Briefs, and the Record
A. Accelerated Case Resolution (“ACR”)
Opposer filed a motion for summary judgment and Applicant filed its brief in
opposition to the motion.3 A telephone conference was then held between the parties
and the Board Interlocutory Attorney assigned to this case and, pursuant to a Board
Order, the parties agreed to “utilize the Board’s summary judgment format of ACR

1 Application Serial No. 88010737, filed on June 22, 2018, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s allegation of first use of the mark
anywhere and in commerce on June 20, 2018.
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, motions
and orders on appeal are to the Board’s TTABVUE docket system.
2 1 TTABVUE. Opposer also asserted a claim under Section 2(a) for alleged false suggestion
of connection; however, this claim later withdrawn (9 TTABVUE 2).
3 6 TTABVUE (Opposer’s motion); 7 TTABVUE (Applicant’s opposition to Opposer’s motion).
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in lieu of a trial.”4 Specifically, the parties entered into the following stipulations
approved by the Board:5
 The opposition will proceed to final decision solely on Opposer’s claim of
likelihood of confusion under Trademark Act Section 2(d).
 The summary judgment briefs and evidence are to be treated as the parties’
ACR briefs and evidence and as the final record and briefs, with Opposer
allowed time for to file ACR rebuttal evidence and a reply brief.
 Pre-trial disclosures and the right to an oral hearing are waived.
 All evidence is admissible “without the need for authenticating or
accompanying witness testimony, subject to the right of the non-offering
party to object to such evidence on substantive grounds such as competency,
relevancy, or materiality. Any such substantive objections have been, or
will be, raised in their ACR briefs.”
 The Board will render a final decision based on the ACR record and briefs,
and may resolve and decide any genuine dispute of material fact that the
Board may find to exist based on the record.
B. The Parties’ Briefs
Pursuant to the ACR agreement, Opposer’s brief in support of its motion for
summary judgment and Applicant’s brief opposing the motion are treated as the
parties’ ACR briefs.6 In addition, Opposer filed a Reply Brief and attached evidence.7
Upon review of the parties’ arguments and the evidence submitted with the briefs,
the Board issued an order allowing the parties time for supplemental briefing and

4 9 TTABVUE 1. Opposer originally asserted a claim under Section 2(a) for alleged false
suggestion of connection; however, that claim was withdrawn as part of the parties’ ACR
stipulations. Id. at 2.
See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 702.04(b)
regarding using summary judgment briefs for ACR.
5 9 TTABVUE 2.
6 6 TTABVUE (Opposer’s brief) and 7 TTABVUE (Applicant’s brief).
7 10 TTABVUE (Opposer’s reply brief).
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submission of evidence limited to the issue of any relatedness between Opposer’s
restaurant services and Applicant’s goods.8 No supplemental briefs or evidence were
submitted.
C. The Record
Only Opposer submitted evidence with its briefs. Applicant did not raise any
evidentiary objections in its brief.
Thus the record includes:
 The declaration of Sayedul Alam, Opposer’s owner and president and
controlling shareholder of a specialty food store “Kalustyan’s” in New York
City, with exhibits;9
 The declaration of Samuel Friedman, Opposer’s counsel, with exhibits that
include Applicant’s responses to Opposer’s discovery requests and Internet
evidence regarding Mr. Alam’s store and Opposer’s restaurant;10 and
 A second declaration of Mr. Friedman, with exhibits that include printouts
of numerous third-party registrations, obtained from the USPTO electronic
database TESS, each identifying “restaurant” services and goods that
include “sauces,”11 and printouts from 25 websites for restaurants that also
offering retail sale of sauces under the same mark.12

8 12 TTABVUE. In Note 4 of the order, the Board clarified that all prior briefs and evidentiary
submissions are of record and will be considered in conjunction with any supplemental briefs
and evidence, subject to objections as permitted by the ACR agreement.
9 6 TTABVUE 16-58.
10 Id., 59-285.
11 10 TTABVUE 12-1316. Mr. Friedman avers in his declaration that there are copies of “632
live U.S. Trademark Registrations.” Id. at 13.
12 Id. at 1319-1479.
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II. Opposer’s Entitlement to Bring a Statutory Cause of Action13
Entitlement to a statutory cause of action is a threshold issue in every inter partes
case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370,
2020USPQ2d 10837 at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 125-26 (2014)). A party in the position of plaintiff
may oppose registration of a mark when such opposition is within its zone of interests
and the plaintiff has a belief in damage that is proximately caused by registration of
the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277, at * 6-
7 (Fed. Cir. 2020) (holding that the test in Lexmark is met by demonstrating a real
interest in opposing or cancelling a registration of a mark, which satisfies the zone-
of-interests requirement, and demonstrating a reasonable belief in damage by the
registration of a mark, which demonstrates damage proximately caused by
registration of the mark).
Here, Mr. Alam avers in his declaration that Opposer sells goods and provides
restaurant and takeout services under the CURRY IN A HURRY mark.14 Opposer
also owns an application for the same mark on sauces, spices and other related food
products.15 This evidence shows that Opposer has a reasonable belief in damage by
the registration of Applicant’s mark and establishes that Opposer is entitled to oppose

13 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change in
nomenclature, our prior decisions and those of the Federal Circuit interpreting Sections 13
and 14 remain equally applicable.
14 6 TTABVUE 16-21; see infra. Regarding Mr. Alam’s specific allegations regarding
Opposer’s use of the mark.
15 Id. at 188-189; Application Serial No. 88366459, filed April 1, 2019.
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registration of Applicant’s mark on the ground of likelihood of confusion.
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000).
III. Priority
“In an opposition founded on section 2(d), the opposer must establish its own prior
proprietary rights in the same or a confusingly similar designation in order to defeat
the application.” T.A.B. Sys. v. Pactel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879, 1881
(Fed. Cir. 1996). These proprietary rights may arise from a prior registration, prior
trademark or service mark use, prior use as a trade name, prior use analogous to
trademark or service mark use, or any other use sufficient to establish proprietary
rights. Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378
(Fed. Cir. 2002).
Because Applicant’s constructive first use date is June 22, 2018 (the filing date of
its application) and it has not submitted any evidence to establish an earlier date of
first use, Opposer must prove that it used its mark CURRY IN A HURRY prior to
that date. In this case, there is no dispute that Opposer has priority for restaurant
services.16 Applicant concedes that Opposer has operated a restaurant under the
CURRY IN A HURRY mark since 1976.17 Opposer’s owner, Mr. Alam, states in his
declaration that “[i]n or about 1976 I opened the quick-service restaurant known as

16 Because we find that Opposer has priority with respect to its restaurant services, and we
ultimately find a likelihood of confusion exists between these services and Applicant’s goods,
we need not reach a determination as to Opposer’s alleged priority on goods.
17 7 TTABVUE 3, 5-6.
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CURRY IN A HURRY on lower Lexington Avenue in the [Borough] of Manhattan,
City of New York, State of New York. The dishes served were available for on
premises dining and take-out.”18 The record also makes abundantly clear that
Opposer’s CURRY IN A HURRY restaurant and takeout services feature Indian
cuisine, including various curry dishes.19
IV. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on the likelihood of confusion. In re E.I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth
factors to be considered); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods and services. 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.”). Opposer bears the burden of establishing that there
is a likelihood of confusion by a preponderance of the evidence. Cunningham, 55
USPQ2d at 1848. We consider the likelihood of confusion factors about which there
is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d
1160, 1162-63 (Fed. Cir. 2019).

18 6 TTABVUE 17 (Alam Dec. ¶ 5).
19 See, e.g., 6 TTABVUE 56-58 (Alam Exhib. H – CURRY IN A HURRY restaurant menu
touting “serving finest quality Indian food”).
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A. Similarity of the Marks
As to the first DuPont factor, “similarity or dissimilarity of the marks,” we analyze
“the marks in their entireties as to appearance, sound, connotation and commercial
impression.” In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.
2012) (quoting du Pont, 177 USPQ at 567). See also Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567).
In this case, Opposer has established prior rights in the mark CURRY IN A
HURRY for restaurant and takeout services, and this is identical to the mark
Applicant seeks to register. The mark CURRY IN A HURRY, viewed in the context
of Indian restaurant and takeout services or on goods, like curry sauces, has the same
commercial impression, namely that the consumers may quickly (“in a hurry”) receive
a prepared Indian curry sauce or dish.
Given the marks are identical and convey the same, or nearly the same, overall
commercial impression in connection with the goods and services, we find that the
DuPont factor regarding the similarity of the marks weighs strongly in favor of a
finding that confusion is likely.
B. Relatedness of the Goods and Services, Their Trade Channels and Classes of
Consumers

We assess the DuPont factors of the similarity or dissimilarity of the goods and
services and their trade channels based on the actual services for which Opposer has
demonstrated prior common law rights and the goods as they are identified in the
application. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052
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(Fed. Cir. 2018); 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).
Opposer, as discussed above, has demonstrated rights based on prior use of the
mark CURRY IN A HURRY in connection with restaurant and takeout services
featuring Indian cuisine. Applicant’s goods, as listed in the application, include “curry
sauce [and] ready-made sauces.” For purposes of our analysis, we focus on these
particular goods listed in the application and, in this regard, point out that we need
not further consider whether the other goods identified in the application also are
related to the Opposer’s services. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 216
USPQ 937, 938-39 (Fed. Cir. 1983) (holding that a single good among several may
sustain a finding of likelihood of confusion); Tuxedo Monopoly, Inc. v. Gen. Mills Fun
Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (likelihood of confusion must
be found if there is likely to be confusion with respect to any item that comes within
the identification of goods or services in the application or registration).
As to whether Opposer’s restaurant and takeout services are related to Applicant’s
curry and ready-made sauces, Opposer “must show something more than that similar
or even identical marks are used for food products and for restaurant services.”
Jacobs v. International Multifoods Corp., 668 F.2d 1234, 212 USPQ 641, 642 (CCPA
1982). This “something more” requirement has been found to exist where the food
products are the same type of food offered in the restaurant. See, e.g., In re Azteca
Restaurant Enterprises Inc., 50 USPQ2d 1209, 1211 (TTAB 1999) (“something more”
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was found because “Mexican food items are often principal items of entrees served by
restaurants, certainly by Mexican restaurants. The average consumer, therefore,
would be likely to view Mexican food items and Mexican restaurant services as
emanating from or sponsored by the same source if such goods and services are sold
under the same or substantially similar marks”); In re Golden Griddle Pancake House
Ltd., 17 USPQ2d 1074, 1075 (TTAB 1990) (“Applicant’s mark makes it clear that its
restaurant serves pancakes and, no doubt, pancake (or table) syrup, as well. There is
an undeniable connection between the goods of the registrant and the services of
applicant.”). Cf., In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1064 (Fed.
Cir. 2003) (finding evidence of “something more” insufficient to establish a
relationship between registrant’s “restaurant services” and applicant’s “beer,” but
opining that “if the registrant’s mark had been for a brewpub or for restaurant
services and beer ... the goods and services associated with the two marks clearly
would be related[.]”).
In this case, the circumstances are closely analogous to those in the Azteca and
Golden Griddle cases, and we find the “something more” requirement is met. That is,
like pancakes and syrup in Golden Griddle, we find an “undeniable connection”
between Opposer’s Indian cuisine restaurant and takeout services and Applicant’s
curry sauces. Curry sauce is well-known staple of Indian cuisine, and Opposer’s
restaurants and Applicant’s food products target consumers interested in Indian
cuisine. To wit, Applicant’s specimen of use is a CURRY IN A HURRY label for a
curry sauce and contains an inspirational message from two individuals who hark
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back to the fresh meals they had “growing up in India.”20 Opposer’s restaurant menu
reveals at least four different curry dishes.21
Opposer has also established that the several different third-party entities use
and have registered identical marks for restaurant services as well as on “sauces.”
Specifically, Opposer submitted copies of more than 100 use-based third-party
registrations showing the same marks registered in connection with both restaurant
services and sauces.22 “Third-party registrations which cover a number of differing
goods and/or services, and which are based on use in commerce, although not evidence
that the marks shown therein are in use on a commercial scale or that the public is
familiar with them, may nevertheless have some probative value to the extent that
they may serve to suggest that such goods or services are of a type which may
emanate from a single source.” See In re Mucky Duck Mustard Co., 6 USPQ2d 1467,
1470 n.6 (TTAB 1998). Opposer also introduced Internet evidence showing well over
a dozen third parties using the same marks for restaurant services and the retail sale
of sauces, including Ledo Pizza, Taco Bell, Winger’s, Nathan’s Famous, and Omaha
Steakhouse.23
In sum, Opposer has met its burden of establishing a clear relationship between
its restaurant and takeout services and Applicant’s goods. Applicant’s goods,
particularly its curry sauces, are the types of goods or dishes that can be expected to

20 Specimen filed June 22, 2018, TSDR p. 1.
21 6 TTABVUE 58 (Alam Exhib. H).
22 12 TTABVUE 14-1316 (Friedman Exhibs. A and B).
23 Id. at 1317-1479 (Friedman Exhib. C).
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be served by Opposer through its restaurant and takeout services that feature Indian
cuisine.
As to the third DuPont factor, involving the established, likely-to-continue
channels of trade for the goods and services, the identification in the application has
no restrictions on channels of trade for Applicant’s sauces. Thus, we must presume
that Applicant’s sauces will travel in all channels of trade appropriate for the sauces,
which the record shows includes restaurants. In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)). For example, in addition
to the already mentioned evidence of third parties that provide restaurant services
and the retail sale of sauces, the Famous Dave’s restaurant website touts the sale of
its “Rich & Sassy sauce … [that] made Dave Famous!,”24 and the Hooters restaurant
website advertises “Take Hooters Home With Hooters Food Products” that include
chicken wing sauces.25 In other words, the evidence shows that restaurants, like
Opposer’s, constitute at least one trade channel through which goods, like Applicant’s
curry sauces, may be sold.
Accordingly, we find that the second and third DuPont factors regarding the
relatedness of the goods and services, and their trade channels, favor finding
confusion likely.

24 Id. at 1341-1348.
25 Id. at 1361-1363.
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C. Conclusion
We have carefully considered all of the evidence made of record, as well as all of
the arguments related thereto. The identity of the marks coupled with the related
nature of Opposer’s restaurant and takeout services featuring Indian cuisine and
Applicant’s goods, including curry sauces, that may be found in the same trade
channel, leads us to the conclusion that consumers are likely to confuse the source of
the involved services and goods.26
Decision: The opposition is sustained, and registration of Applicant’s mark
CURRY IN A HURRY is refused.

26 We treat as neutral any DuPont factors for which there is no evidence of record.