Elite Eats & Sweets, LLC

Trademark Trial and Appeal Board

Sep 11, 2009

No. 77363207 (T.T.A.B. Sep. 11, 2009)

Mailed:
September 11, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

Elite Eats & Sweets, LLC
________

Serial No. 77363207
_______

Anthony J. Bourget, Esq. for Elite Eats & Sweets, LLC.

Paul C. Crowley, Trademark Examining Attorney, Law Office
110 (Chris A. F. Pedersen, Managing Attorney).
_______

Before Seeherman, Grendel and Kuhlke, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Elite Eats & Sweets, LLC has appealed from the final
refusal of the Trademark Examining Attorney to register
OBSESSION CHOCOLATES in standard characters, with
CHOCOLATES disclaimed, for “candies, chocolate truffles,
sauces, chocolate barks and hot cocoa mix.”1 Registration
has been refused pursuant to Section 2(d) of the Trademark

1 Application Serial No.77363207, filed January 3, 2008, based
on Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b)
(intent-to-use).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 77363207
2
Act, 15 U.S.C. §1052(d), on the ground that applicant’s
mark so resembles the mark BELGIAN OBSESSION, with BELGIAN
disclaimed, registered for “confectionery, namely,
chocolates and chocolate products, namely, chocolate
coatings, bits, crumbles, and powders; candies and candy
products, namely, truffles and bars,”2 that, if used in
connection with applicant’s goods, it is likely to cause
confusion or mistake or to deceive.
We affirm the refusal of registration.
We begin with a procedural point. In his appeal brief
the examining attorney has asked us to take judicial notice
of definitions of the words “Belgian,” “Belgium” and
“chocolate.” The examining attorney stated that the
definitions were taken from The American Heritage
Dictionary of the English Language, 4th ed. © 2000, and
attached the excerpts, which were printed from the Internet
site http://education/yahoo.com, with his brief. Applicant
has objected to our taking judicial notice of the
definitions because, although the excerpts reference the
American Heritage dictionary, “there is no reliable
indication that Yahoo.com actually received the specific
definitions from American Heritage.” Reply brief, p. 9.
We overrule the objection. The excerpts submitted by the

2 Registration No. 3294776, issued September 18, 2007.
Ser No. 77363207
3
examining attorney clearly identify the American Heritage
dictionary as the source of the definitions. The Board has
consistently taken judicial notice of dictionary
definitions reported on websites without imposing an
additional requirement that it be proved that the website
received the definitions from the dictionary source, as
long as the source is referenced. See In re Hotels.com,
L.P., 87 USPQ2d 1100, 1103 (TTAB 2007), aff’d __F.3d__, 91
USPQ2d 1532 (Fed. Cir. July 23, 2009) (judicial notice
taken of definition from The American Heritage Dictionary
of the English Language, retrieved from bartleby.com
website). We also note that applicant has not argued that
the excerpts submitted by the examining attorney do not
accurately reflect the definitions in the American Heritage
dictionary, nor has applicant requested that we take
judicial notice of definitions that would cast doubt on the
accuracy of those submitted by the examining attorney.3
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set

3 We are frankly surprised that applicant has thought it
worthwhile to object to the examining attorney’s request that we
take judicial notice of the dictionary definitions, as it would
appear to us that even without such definitions it is
indisputable that “Belgium is a country in Europe, that “Belgian”
is an adjective that describes things of or relating to Belgium,
and that “chocolate” is, inter alia, a candy.
Ser No. 77363207
4
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (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/or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976). See also, In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
We turn first to a consideration of the goods. The
goods are, in part, legally identical: applicant’s
identified “candies” encompass the truffles and bars
identified in the cited registration, while both
identifications include “truffles.” Regardless of the
other items in applicant’s identification, the identity of
these goods is sufficient to show that this duPont factor
supports a finding of likelihood of confusion. See Tuxedo
Monopoly, Inc. v. General Mills Fun Group, 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 in
the application). However, the evidence also shows that
the remaining goods identified in applicant’s application
Ser No. 77363207
5
are closely related to the goods in the cited registration.
The examining attorney has made of record numerous
registrations showing that third parties have adopted a
single mark for the goods listed in applicant’s application
and those listed in the cited registration.4 See, for
example, Registration No. 2933055 for, inter alia, cocoa
mixes, chocolates, candy, candy bars; Registration No.
3147785 for, inter alia, candy and chocolates, candy and
chocolate bars, and hot cocoa mixes; and Registration No.
3162087 for, inter alia, chocolate, chocolate bars,
chocolate candies, chocolate chips, chocolate syrup,
chocolate topping, cocoa mixes and filled chocolate;
Registration No. 3167016 for, inter alia, chocolate,
chocolate bars, chocolate candies, chocolate chips,
chocolate syrup, chocolate topping, chocolate truffles,
cocoa, cocoa beverages with milk; and Registration No.
3396341 for, inter alia, candy, chocolate, chocolate syrup,

4 Applicant has argued that not all of the registrant’s goods
are encompassed by applicant’s identified goods, e.g., the
registrant’s identification includes chocolate bits and crumbles
and the applicant’s does not. However, it is not required that
all of the registrant’s goods be identical or related to all of
the applicant’s identified goods; the question is whether
applicant’s goods are legally the same or are related to any of
the goods in the cited registration. Moreover, as noted above,
if only one of the items identified in an applicant’s application
is likely to cause confusion with the registrant’s mark because
of one of the items identified in the cited registration, that is
a sufficient basis to affirm a refusal of registration.

Ser No. 77363207
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chocolate chips, cocoa and cocoa mixes. Third-party
registrations which individually cover a number of
different items and which are based on use in commerce
serve to suggest that the listed goods and/or services are
of a type which may emanate from a single source. See In
re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
Thus, the du Pont factor of the similarity of the goods
favors a finding of likelihood of confusion.
Further, the legally identical goods would be sold in
the same channels of trade to the same classes of
customers. This duPont factor, too, favors a finding of
likelihood of confusion.
Applicant has stated that there is no likelihood of
confusion because the marks are different when viewed in
their entireties, and because the term OBSESSION, which is
the only term common to both marks, is weak. Accordingly,
we turn to a consideration of the marks, keeping in mind
that “[w]hen marks would appear on virtually identical
goods or services, the degree of similarity necessary to
support a conclusion of likely confusion declines. Century
21 Real Estate Corp. v. Century Life of America, 970 F.2d
874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992).
Applicant’s mark is OBSESSION CHOCOLATES, while the
cited mark is BELGIAN OBSESSION. In comparing the marks,
Ser No. 77363207
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it is well established that there is nothing improper in
stating that, for rational reasons, more or less weight has
been given to a particular feature of a mark, provided the
ultimate conclusion rests on a consideration of the marks
in their entireties. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Although
applicant and the examining attorney agree with this
principle, they dispute how it should be applied, with
applicant arguing that OBSESSION is not the “dominant,
distinguishing portion of the marks.” Response filed
January 6, 2009. Applicant further states that great
weight should be given to the word BELGIAN in the cited
mark because it is the first word of the mark, and that
there is no showing that the word CHOCOLATES in applicant’s
mark is generic.
After considering the arguments and the evidence, we
find that the term OBSESSION is the dominant part of both
marks. The word CHOCOLATES in applicant’s mark is a
generic word for its identified candies, chocolate
truffles, and chocolate barks. Although applicant argues
that “chocolates” is not generic, the record is replete
with evidence showing that this is a generic term. The
cited registration as well as many of the third-party
registrations list “chocolates” as an item in the
Ser No. 77363207
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identification of goods, thus showing that it is a
recognized generic word. Further, applicant has submitted
a third-party registration which includes this
identification, and throughout its submissions applicant
itself has used the word “chocolates” generically.
(“Particularly, there have been significant registrations
in Class 30 for chocolates and/or confections….” Response
filed January 6, 2009; “…Belgium, a location known for its
chocolates” Response filed July 11, 2008 (emphasis
added)). Because the word CHOCOLATES is generic, as used
in applicant’s mark OBSESSION CHOCOLATES it has no source-
identifying function with respect to candies, chocolate
truffles and chocolate barks. It is also highly
descriptive of sauces and cocoa mix. Accordingly, it is
the word OBSESSION in applicant’s mark that consumers will
view as the stronger, and for the candies, truffles and
barks the only source-indicating element, and it is this
element that is entitled to greater weight in our analysis.
As for the registered mark, the examining attorney has
presented evidence taken from the Internet that shows
“Belgian chocolate” is frequently used to describe
chocolate, including the following:
Belgian chocolate has been the food of
champions, a lure for lovers, the
Ser No. 77363207
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indulgence of the rich and later, the
favorite of the masses.
Belgium produces 172,000 tons of
chocolate per year with more than 2,000
chocolate shops throughout the country.
www.visitbelgium.com/chocolate.htm

What is Unique About Belgian Chocolate?
…Belgian chocolate is considered to be
the gourmet standard by which all other
chocolate confections are measured.
www.wisegeek.com/what-is-unique-about-
belgian-chocolate.htm

Belvedere Belgian Style Chocolates
Belvedere Belgian Chocolate Shop
www.belvederechocolates.com

Dolfin Chocolate—Belgium
…Dolfin Belgian Chocolate draws on the
original sources of chocolate….
Dolfin Belgian Chocolate Bars…
Dolfin Belgian Chocolate Squares…
www.chocosphere.com/Html/Products/dolfi
n.html

Even applicant has recognized that Belgium is “a
location known for its chocolates” and that “Belgian
chocolates” are renowned:
There exist a number of renowned brands
of chocolate, particularly Belgian
chocolates (e.g., Callebaut, Cote d’Or,
Neuhaus, Leonidas, Guylian and Godiva),
that create a powerful goods-place
association with use of the term
Belgium or derivatives of that term
such as BELGIAN, and chocolate or
candy. Use of such a term as BELGIAN
plays on those notions developed over
the years by others. The commercial
impression created by using the BELGIAN
term [in the cited mark] is
unmistakable (i.e., having something to
do with those renowned Belgium
Ser No. 77363207
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chocolates, or at least the
geographical location).

Response filed July 11, 2008.
Because there is such a strong connection between
Belgium and chocolates, consumers will view the word
BELGIAN in the cited registration as highly descriptive of
the registrant’s confectionery. Thus, this term is
entitled to less weight when the marks are compared in
their entireties. In reaching this conclusion, we have
considered but are not persuaded by applicant’s argument
that we are bound by the comments made during the
prosecution of another application, Serial No. 78267116,
for BELGIAN OBSESSION, which never registered. Applicant
herein asserts that the entity who filed that application
is a related company of the owner of the cited
registration. The applicant for Serial NO. 78267116, in
attempting to overcome a refusal to register BELGIAN
OBSESSION on the ground that it was geographically
deceptively misdescriptive, argued that “Belgian,” in
addition to denoting a product from Belgium, may also
denote a product that is hardy, rich or flavorful, and
applicant in the present proceeding contends that the
comments made by that applicant “prove” that Belgian means
hardy, big, rich, luxurious or flavorful. We disagree.
Ser No. 77363207
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Statements made in the prosecution of an application are
not treated as admissions against interest even when the
entity making the statement is a party to a proceeding (and
the applicant for Serial No. 78267116 is not a party to
this ex parte proceeding). See Interstate Brands
Corporation v. Celestial Seasonings, Inc., 576 F.2d 926,198
USPQ 151, 153-54 (CCPA 1978) (the decision maker may not
consider as “admitted” a fact shown to be non-existent by
other evidence of record, nor may he consider a party’s
opinion relating to the ultimate conclusion an
“admission”). In fact, as the examining attorney has
pointed out, the applicant in application Serial No.
78267116 asserted that “Belgian” connotes a type of candy,
which would mean that “Belgian” is a generic term.
Although applicant’s mark includes the word CHOCOLATES
and the cited mark does not, this difference does not serve
to distinguish the marks. Rather, the generic term
CHOCOLATES would be understood by consumers viewing or
referring to the registrant’s mark, i.e., that they want to
buy some BELGIAN OBSESSION chocolates. Further, because of
the highly descriptive nature of BELGIAN in connection with
chocolates, they would view the word BELGIAN as modifying
chocolates, rather than modifying OBSESSION. Thus,
contrary to applicant’s position, the connotation of the
Ser No. 77363207
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cited mark is not of a Belgian obsession, but of OBSESSION
chocolates that are from Belgium.
Despite the differences in the marks, discussed at
length in applicant’s brief (e.g., the reversal of the word
order; the differences in sound: “BELGIAN OBSESSION begins
with the hard “B” consonant, and ends in the singular;
whereas OBSESSION CHOCOLATES begins with a soft round vowel
and ends in the plural”, brief, p. 16), the similarities
far outweigh the differences, and the overall commercial
impression of the two marks is highly similar. The word
OBSESSION that dominates both marks has the same
significance in both, and is not affected by the presence
or absence of the highly descriptive word BELGIAN and the
generic word CHOCOLATES.
Although we have chosen not to repeat each of the
arguments made by applicant in contending that the marks
are different, we have considered them all and have found
them unpersuasive.
Applicant also has argued that the word OBSESSION that
is common to both marks is “weak due to dilution.” Brief,
p. 11. Applicant bases this argument on five third-party
registrations, two of which have been cancelled or have
expired:
Ser No. 77363207
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BROWNIE OBSESSION for a “prepared
dessert consisting primarily of
brownies, topping syrup and ice cream
for consumption on or off the
premises,” Reg. No. 3435982, issued May
27, 2008;

CHOCOLATE RASPBERRY OBSESSION for
“frozen confections,” Reg. No. 3176007,
issued November 28, 2006;

CONCESSION OBSESSION for “ice cream,”
Reg. No. 2839370, issued May 11, 2004;

CHOCOLATE OBSESSION (cancelled) for
“bakery goods for consumption on or off
the premises,” Reg. No. 1394246, issued
May 20, 1986; and

SWEET OBSESSION (cancelled) for “boxed
chocolates,” Reg. No. 2425701, issued
Jan. 30, 2001.

Applicant argues that the coexistence of these
registrations demonstrates “the ability of consumers to
distinguish between the goods sold under the marks based on
disclaimed portions of the respective marks,” and that “the
term OBSESSION is so commonly used that the public will
look to other aspects of the composite marks to distinguish
the sources of the goods.” Brief, p. 11. The problem with
applicant’s position is that third-party registrations are
not evidence that the marks are in use; thus, they are not
pertinent to the sixth du Pont factor, the number and
nature of similar marks in use on similar goods. See In re
Albert Trostel & Sons Co., supra. We acknowledge that
Ser No. 77363207
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third-party registrations can be used in the manner of
dictionary definitions, to show that a term has a
significance in a particular industry, and we may assume
that the term OBSESSION is used for these various dessert
items to suggest that people have or will have a great love
or devotion to the product or, if we apply the definition
submitted by applicant (“a persistent disturbing
preoccupation with an often unreasonable idea or feeling”),
an unhealthy need for it. However, in either event, the
term OBSESSION is not so highly suggestive that, when the
marks are used for identical goods, consumers are likely to
distinguish the marks based on the generic term CHOCOLATES
and the highly descriptive term BELGIAN.
Applicant has also argued that the cited registration
coexisted with the now-cancelled registration for SWEET
OBSESSION for a year from the issuance of the notice of
allowance for the BELGIAN OBSESSION application until the
SWEET OBSESSION mark was cancelled, despite the fact that
both included the identical item, chocolates. To the
extent that applicant is arguing that this coexistence on
the register shows that consumers knew these marks and were
able to distinguish between them, we have already explained
that third-party registrations are not evidence of the use
of the marks. In any event, there are clear differences
Ser No. 77363207
15
between SWEET OBSESSION and BELGIAN OBSESSION that are not
present in the marks at issue, OBSESSION CHOCOLATES and
BELGIAN OBSESSION, in that SWEET both modifies obsession
and acts as a pun because the goods are sweets, while, as
we have already stated, BELGIAN describes the goods,
chocolates, rather than modifying the word OBSESSION.
We reiterate that we recognize that there are some
differences between applicant’s mark and the cited mark,
but that these differences are not sufficient to
distinguish the marks. When the marks are compared in
their entireties, the similarities far outweigh the
differences, and they convey a similar commercial
impression. It must also be remembered that the goods are
identical, that the purchasers are the general public, and
that candies and candy bars are often purchased on impulse,
without deliberation or careful examination of trademarks.
After considering all of the relevant du Pont factors,
we find that applicant’s mark, if used on the identified
goods, so resembles the cited registration for BELGIAN
OBSESSION that it is likely to cause confusion or mistake
or to deceive. To the extent that there is any doubt on
this issue, it is a well-established principle that such
doubt must be resolved in favor of the registrant and prior
user. In re Pneumatiques, Caoutchouc Manufacture et
Ser No. 77363207
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Plastiques Kleber-Colombes, 487 F.2d 918, 179 USPQ 729
(CCPA 1973).
Decision: The refusal of registration is affirmed.