Fogo De Chão Churrascaria (Holdings) LLPv.Fogo E Brasa, L.L.C.

Trademark Trial and Appeal Board

Apr 20, 2009

No. 91157167 (T.T.A.B. Apr. 20, 2009)

Hearing: February 20, 2009 Mailed: April 20, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Fogo De Chão Churrascaria (Holdings) LLP
v.
Fogo E Brasa, L.L.C.
_____

Opposition No. 91157167
to application Serial No. 76464941
filed on November 1, 2002
_____

Nicole B. Emmons and John C. Filosa of Baker & McKenzie LLP
for Fogo De Chão Churrascaria (Holdings) LLP.

John G. Browning of Gordon & Rees LLP for Fogo E Brasa,
L.L.C.
______

Before Seeherman, Rogers and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Fogo E Brasa, L.L.C. (“applicant”) filed a use-based
application for the mark FOGO E BRASA and design, shown
below, for “restaurant services,” in Class 43.

The application recites that the term “Fogo E Brasa” is
translated into English as “Fire and Charcoal.”

THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Opposition No. 91157167
2
Fogo De Chão Churrascaria (Holdings) LLP (“opposer)
opposed the registration of applicant’s mark on the grounds
of priority of use and likelihood of confusion under Section
2(d) of the Trademark Act of 1946, 15 U.S.C. §1052(d).
Specifically, opposer alleged that it is the owner of
registrations for FOGO in typed drawing form,1 FOGO DE CHÃO
(stylized), shown below,2

and FOGO DE CHÃO and design, shown below,3

all for restaurant services, and that the registration of
applicant’s mark FOGO E BRASA and design for restaurant

1 Registration No. 2968381, issued July 12, 2005. The
registration states that the word “fogo” is translated into
English as “fire.”

2 Registration No. 2170469, issued June 30, 1998; Sections 8 and
15 affidavits accepted and acknowledged; renewed. The
registration states that the word “Fogo de Chão” means “campfire”
in Portuguese.

3 Registration No. 2170468, issued June 30, 1998, Sections 8 and
15 affidavits accepted and acknowledged; renewed. The
registration states that the word “Fogo de Chão” means “campfire”
in Portuguese.

Opposition No. 91157167
3
services so resembles opposer’s registered marks as to be
likely to cause confusion.4
Applicant denied the salient allegations in the notice
of opposition.
The Record
By rule, the record includes applicant’s application
file and the pleadings. Trademark Rule 2.122(b), 37 CFR
§2.122(b).
The parties stipulated that “all declarations,
affidavits, and evidence introduced in connection with
either party’s summary judgment briefing are deemed admitted
into the record for use by either party during the trial
phase and for the purposes of final decision.” In addition,
the parties stipulated that all written discovery requests
and responses “are deemed admitted into the record and

4 Opposer also claimed ownership of Registration No. 2204333 for
the mark FOGO DE CHÃO (stylized) and Registration No. 2204339 for
the mark FOGO DE CHÃO and design both for clothing. Because the
registered marks for restaurant services are closer to
applicant’s mark than the registered marks for clothing, we limit
our discussion to the marks registered for restaurant services.

Opposer also alleged that “[a]pplicant did not make a
sufficient ‘use in commerce’ of the mark FOGO E BRASA” as of the
filing date of the application. We construe this as an
allegation that applicant did not make the necessary use in
commerce to support registration. However, because opposer did
not refer to this ground in its brief, we find that opposer has
waived it. For the same reason (i.e., failure of briefing), as
well as the fact that they are not appropriately raised in an
opposition proceeding, we have given no consideration to other
matters asserted in the amended notice of opposition that purely
relate to the ex parte examination of the application.

Opposition No. 91157167
4
available for use by either party,” as are discovery
deposition transcripts and exhibits.5
Pursuant to the above-noted stipulation, opposer
introduced the following testimony and evidence during its
testimony period:
1. The declaration of Nathan A. Engels, one of
opposer’s attorneys, with attached exhibits;
2. The declaration of Jair Coser, one of the founders
of opposer, with attached exhibits;
3. Opposer’s objections and responses to applicant’s
first set of interrogatories;
4. Opposer’s objections and responses to applicant’s
first set of requests for production of documents;
5. Applicant’s objections and responses to opposer’s
first set of interrogatories;
6. Applicant’s objections and responses to opposer’s
second set of interrogatories;
7. Applicant’s objections and responses to opposer’s
first request for production of documents;
8. Applicant’s objections and responses to opposer’s
second request for production of documents;
9. The affidavit of Shlomo Pinhas, one of applicant’s
members;

5 Stipulation filed October 5, 2007.
Opposition No. 91157167
5
10. The affidavit of Robert Worthington, the President
of M. Burr Keim Company, attesting that his company
conducted a trademark search for the mark FOGO E BRASA;
11. The discovery deposition of Shlomo Pinhas with
attached exhibits;
12. The discovery deposition of Michael Pinhas, one of
applicant’s members, with attached exhibits; and,
13. The discovery deposition of David Pinhas, one of
applicant’s members, with attached exhibits.
Opposer also filed a notice of reliance on certified
copies of its pleaded registrations showing the current
status and title of the registrations.
Applicant did not introduce any testimony or evidence
during its testimony period.
Standing
Because opposer has properly made its pleaded
registrations of record, opposer has established its
standing. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Industries, Inc.
v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189
(CCPA 1982).
Priority
Because opposer’s pleaded registrations are of record,
Section 2(d) priority is not an issue in this case as to the
marks and the services covered by the registrations. King
Opposition No. 91157167
6
Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182
USPQ 108, 110 (CCPA 1974).
Likelihood of Confusion
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the issue of likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re
Majestic Distilling Company, Inc., 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 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”).
A. The fame of opposer’s marks.

This du Pont factor requires us to consider the fame of
opposer’s marks. Fame, if it exists, plays a dominant role
in the likelihood of confusion analysis because famous marks
enjoy a broad scope of protection or exclusivity of use. A
famous mark has extensive public recognition and renown.
Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63
USPQ2d 1303, 1305 (Fed. Cir. 2002); Recot Inc. v. M.C.
Opposition No. 91157167
7
Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir.
2000); Kenner Parker Toys, Inc. v. Rose Art Industries,
Inc., 963 F.2d 350, 22 USPQ2d 1453, 1456 (Fed. Cir. 1992).
Fame may be measured indirectly by the volume of sales
and advertising expenditures of the goods and services
identified by the marks at issue, “by the length of time
those indicia of commercial awareness have been evident,”
widespread critical assessments and through notice by
independent sources of the products identified by the marks,
as well as the general reputation of the products and
services. Bose Corp. v. QSC Audio Products Inc., 63 USPQ2d
at 1305-1306 and 1309. Although raw numbers of product
sales and advertising expenses may have sufficed in the past
to prove fame of a mark, raw numbers alone may be
misleading. Some context in which to place raw statistics
may be necessary (e.g., the substantiality of the sales or
advertising figures for comparable types of products or
services). Bose Corp. v. QSC Audio Products Inc., 63 USPQ2d
at 1309.
Finally, because of the extreme deference that we
accord a famous mark in terms of the wide latitude of legal
protection it receives, and the dominant role fame plays in
the likelihood of confusion analysis, it is the duty of the
party asserting that its mark is famous to clearly prove it.
Opposition No. 91157167
8
Leading Jewelers Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d
1901, 1904 (TTAB 2007).
Jair Coser testified that opposer opened its first
restaurant in Dallas, Texas in 1997, that it now has seven
restaurants and that it is the number one churrascaria
(i.e., Brazilian style steakhouse) in the United States.6
However, there is no testimony or evidence regarding how
many churrascarias there are in the United States or what
percentage of the market these types of restaurants command.
Opposer made of record the gross revenues generated by
opposer’s seven restaurants and its advertising
expenditures. The revenue figures were designated
confidential so that we may only refer to them in general
terms. We can say that on their face the numbers are
relatively large.
To provide some context for these figures, opposer
introduced articles from Restaurants and Institutions
magazine ranking opposer’s chain of FOGO DE CHÃO restaurants
303 (July 2003), 267 (July 2004) and 271 (July 2005) in
terms of revenue.7
While opposer has achieved commercial success, we find
that the evidence of record is not sufficient to establish
that opposer’s FOGO DE CHÃO or FOGO marks are

6 Coser Declaration ¶¶3 and 5.
7 Engel’s Declaration Exhibit D.
Opposition No. 91157167
9
famous marks for purposes of likelihood of confusion. In
particular, there can be a significant difference in the
revenues between a chain restaurant that is number one and
number 271. And the articles about opposer’s restaurants
appear to be more in the nature of telling readers about a
new restaurant than a reflection of the public’s recognition
of the restaurant.
B. The similarity or dissimilarity and nature of the
services described in the application and
registrations.

The services are identical. Applicant is seeking to
register its mark for restaurant services and opposer has
registered its marks for restaurant services.
C. The similarity or dissimilarity of likely-to-continue
trade channels and classes of consumers.

Because the services identified in the application and
the cited registrations are identical, we must presume that
the channels of trade and classes of purchasers are the
same. See Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB
2003) (“Given the in-part identical and in-part related
nature of the parties’ goods, and the lack of any
restrictions in the identifications thereof as to trade
channels and purchasers, these clothing items could be
offered and sold to the same classes of purchasers through
the same channels of trade”); In re Smith and Mehaffey, 31
USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are
legally identical, they must be presumed to travel in the
Opposition No. 91157167
10
same channels of trade, and be sold to the same class of
purchasers”). Accordingly, the trade channels must be
construed to include single location restaurants, both
formal and casual, as well as outlets in food courts or
other locations in which multiple purveyors of restaurant
services are present. And as a result, we must consider the
classes of customers to include all members of the general
public, including those in search of formal dining options,
and those seeking more casual options.
D. The conditions under which and buyers to whom sales are
made, i.e. “impulse” vs. careful, sophisticated
purchasing.

Applicant argues that “[t]he restaurants at issue here
are not fast food restaurants with a value-priced menu, and
based on the atmosphere and the average meal price, common
sense recognizes that even though the purchase of a meal is
not a big-ticket item, consumers use care in deciding where
they want to eat.”8 However, we must make our likelihood of
confusion analysis on the services as they are described in
the application and registrations at issue, regardless of

8 Applicant’s Brief, p. 11. David Pinhas testified that at
applicant’s restaurant, the salad bar at lunch is $9.99, the
salad bar and meats at lunch is $17.97, and the salad bar and
meats at dinner is $29.97. (Pinhas Dep., p. 24). While there
was no direct testimony regarding the price at opposer’s
restaurants, an article in the October 3, 1997 issue of The
Dallas Morning News reports that “[w]ord has spread fast about
Fogo de Chao (sic) and its fixed-price policy. The crowd at
lunch ($19.90) is growing, and tables are full at dinner ($25.50)
for the all-you-can-eat salad bar and rotisserie beef, chicken,
lamb or pork.” (Engels Dec., Exhibit A).
Opposition No. 91157167
11
what the evidence shows the services to actually be.
Canadian Imperial Bank of Commerce vs. Wells Fargo Bank,
N.A., 811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987).
Thus, as noted above, we must assume that the restaurant
services rendered by the parties encompass inexpensive or
moderately-priced restaurants. In view thereof, applicant’s
argument that the restaurant services are not fast food
restaurants and that the atmosphere and actual cost of the
services results in consumers exercising care in selecting a
restaurant is legally irrelevant. In re Bercut-Vandervoort
& Co., 229 USPQ 763, 765 (TTAB 1986) (rejecting applicant’s
arguments regarding the high cost and quality of its wine
and the sophistication of its purchasers where the
application described the goods merely as wine). See also
In re Opus One Inc., 60 USPQ2d 1812, 1817 (TTAB 2001).
E. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We now turn to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
De Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd., 9
USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co., 6
Opposition No. 91157167
12
USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks, we
are mindful that where, as here, the services are identical,
the degree of similarity necessary to find likelihood of
confusion need not be as great as where there is a
recognizable disparity between the services. Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Schering-Plough
HealthCare Products Inc. v. Ing-Jing Huang, 84 USPQ2d 1323,
1325 (TTAB 2007); Jansen Enterprises Inc. v. Rind, 85 USPQ2d
1104, 1108 (TTAB 2007).
While the marks must be compared in their entireties
when analyzing their similarity or dissimilarity, there is
nothing improper in stating that for rational reasons, more
or less weight has been given to a particular feature of a
mark. In re National Data Corporation, 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). In the case of marks
consisting of words and a design, the words are normally
given greater weight because they would be used by consumers
to request the products. In re Dakin’s Miniatures, Inc., 59
USPQ2d 1593, 1596 (TTAB 1999); In re Appetito Provisions
Co., 2 USPQ2d 1553, 1554 (TTAB 1987). In fact, Shlomo
Pinhas testified that most of applicant’s customers heard
about applicant through word-of-mouth.9

9 Shlomo Pinhas Dep., p. 63.
Opposition No. 91157167
13
In this case, not only are the word portions of the
parties’ marks given greater weight, but the word “Fogo” in
the word portion is the dominant element of both applicant’s
mark and opposer’s marks. The significance of “Fogo” as the
dominant element of applicant’s mark and opposer’s composite
marks is reinforced by its location as the first word of the
mark. Presto Products Inc. v. Nice-Pak Products, Inc., 9
USPQ2d 1895, 1897 (TTAB 1988)(“it is often the first part of
a mark which is most likely to be impressed upon the mind of
a purchaser and remembered”). See also Palm Bay Imports
Inc. v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005)(“Veuve” is the most prominent
part of the mark VEUVE CLICQUOT because “veuve” is the first
word in the mark and the first word to appear on the label);
Century 21 Real Estate Corp. v. Century Life of America, 23
USPQ2d at 1700 (Fed. Cir. 1992) (upon encountering the
marks, consumers must first notice the identical lead word).
Opposer has registered FOGO standing alone, presumably
in recognition of the fact that “Fogo” is the dominant part
of its composite marks. In this regard, opposer has
introduced evidence that consumers are likely to abbreviate
its mark to “Fogo.” The following articles are samples of
the evidence submitted by opposer to illustrate how writers
have shortened FOGO DE CHÃO to “Fogo.”10

10 Engel’s Declaration Exhibit B.
Opposition No. 91157167
14
The Dallas Morning News (October 3,
1997):

“Brazilian steakhouse is a meat-eaters’
mecca” (Headline)

But reservations are accepted at Fogo,
so make ‘em, if you must.

* * *

While you can get a reservation at Fogo,
you can’t get a menu.

The Dallas Morning News (January 2,
1998):

Few restaurants generated as many
queries as this one. In fact, calls
came in for “Fogo de something or other”
or “that Brazilian place” even before it
opened, and the inquiries haven’t let
up.

The Atlanta Constitution (November 16,
2001):

Now the city’s second churrasqueria has
debuted in Dunwoody. Carro de Boi
follows the same format [as FOGO DE
CHÃO] but works at a different level.
Compared with Fogo, it is physically
much smaller, and price-wise, charges
about half.

Chicago Tribune (October 31, 2002):

“Cheap steaks for cheapskates”
(Headline)

Run, don’t walk, to Fogo.

Chicago Lawyer (December 2002):

“Fogo: a good place to meat” (Title)

Opposition No. 91157167
15
It’s been a week since I last Fogo’d,
and I’m still on a steroidal meat high.
After one meal here (“you be a man”).
Yes, one meal at Fogo will turn even a
mild-mannered notary public into a fire-
breathing devil.

Opposer also introduced into evidence news articles in
which applicant’s mark FOGO E BRASA was shortened to
“Fogo.”11
Phoenix Magazine (October 2002):

Fogo E Brasa is a classy joint with
remarkably good food. And trust me on
this: The masses will be so turned off
by Fogo’s pricing ($29.97 per person for
dinner, $17.97 for a more limited lunch)
that they’ll go elsewhere, leaving you
in peace with a splendid, rodizio-style
feast in a pleasantly upscale setting.

Ahwatukee Foothill News
(www.ahwatukee.com):

It may seem unusual for a restaurant to
mix fine dining and an all-you-can-eat
buffet, but it is done extremely well at
Fogo e Brasa Brazilian Steak House.

* * *

The service is rock solid at Fogo with a
staff that is trained to know not to ask
you how you’re doing every two minutes,
but to keep your dining area clear and
to answer your questions.

At the end of an online review of FOGO E BRASA (dated
May 16, 2006),12 readers left the following messages:
Lisa says:
May 17, 2006 at 8:23 am

11 Engel’s Declaration Exhibit C.
12 Shlomo Pinhas Dep., Exhibit 30.
Opposition No. 91157167
16
OMG that is such a bargain! The local
Fogo here in DFW charges $20 if you only
want the salad bar.13 It’s a good salad
bar and the salad bar and sides (not hot
buffet) is close to $50 per person. Of
course, you don’t have to drive all the
way out to Ahwatukee.

Melati says:
May 17, 2006 at 4:35 pm

This must be the reason why Fogo and Rio
has (sic) stayed in business while
countless other Brazilian restaurants
have come and gone.

Finally, we note that applicant identifies its carry-
out services as FOGO TO GO.14 Thus, applicant itself
shortens the full name of its restaurant from FOGO E BRASA
to FOGO.
“[U]sers of language have a universal habit of
shortening full names – from haste or laziness or just
economy of words. Examples are: automobile to auto;
telephone to phone; necktie to tie; gasoline service station
to gas station.” In re Abcor Development Corp., 588 F.2d
511, 200 USPQ 215, 219 (CCPA 1978) (J. Rich, concurring).
[C]ompanies are frequently called by
shortened names, such as Penney’s for
J.C. Penney’s, Sears for Sears and
Roebuck (even before it officially
changed its name to Sears alone), Ward’s

13 Applicant does not have a restaurant in Dallas. Its only
restaurant is in a Phoenix suburb. (Shlomo Pinhas Dep., 54). On
the other hand, opposer opened its first FOGO DE CHÃO restaurant
in Dallas, Texas in 1997. Opposer has continuously operated its
FOGO DE CHÃO restaurant in Dallas through trial. (Coser Dec. ¶3
and Exhibits A, B, and C).
14 Shlomo Pinhas Dep., p. 39; David Pinhas Dep., p. 28.
Opposition No. 91157167
17
for Montgomery Ward’s, and Bloomies for
Bloomingdales.

Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321,
1333 (TTAB 1992). The evidence shows that the same thing
has occurred with the marks of opposer and applicant.
Accordingly, we find that FOGO is the dominant element of
applicant’s mark FOGO E BRASA and of opposer’s composite
mark FOGO DE CHÃO.
Despite the fact that applicant’s mark includes the “E
BRASA” suffix and a drawing of a bull, these differences are
not sufficient to distinguish applicant’s mark from
opposer’s marks FOGO DE CHÃO and FOGO because the word
“fogo” is the easiest part of the marks to say and remember.
Also, we recognize that FOGO E BRASA, FOGO DE CHÃO and
FOGO have different meanings to those familiar with the
Portuguese language. However, we are dealing with the issue
of likelihood of confusion vis-à-vis the general public in
the United States, most of whom do not know Portuguese.
Therefore, the word “Fogo” must be treated as an arbitrary
term when used in connection with restaurant services, and
the marks of the parties highlighted by the word “fogo”
would engender similar commercial impressions.
In view of the facts that opposer has registered the
mark FOGO as well as FOGO DE CHÃO, and that the word “Fogo”
is the dominant element of applicant’s mark and opposer’s
composite mark, we find that applicant’s mark is similar to
Opposition No. 91157167
18
opposer’s mark in terms of appearance, sound, meaning and
commercial impression.
F. Instances of actual confusion.
Opposer contends that it has made of record four
instances of actual confusion. The first purported instance
of actual confusion is a March 15, 2002 email15 from a
prospective customer located in Phoenix inquiring about
opposer’s recent opening of a restaurant in Phoenix (“I’ve
heard you would open a Fogo de Chao in Scottsdale, can you
give me further information?”).16 Applicant argues that
this email does not establish actual confusion because it
shows that the writer allegedly heard from an unnamed source
that opposer “would open a restaurant in Phoenix,” not that
the writer saw a Fogo E Brasa advertisement, and not that
the writer was aware that there was a Fogo E Brasa
restaurant.
The second purported instance of actual confusion is a
November 8, 2002 email from a prospective customer stating
that “I thought I saw an ad in the Phoenix airport for a
Fogo de Chao restaurant in Chandler, Arizona. I don’t see
it on your website. Was I dreaming?”17 Applicant argues

15 Applicant opened its restaurant on March 4, 2002. (Applicant’s
answers and objections to opposer’s first set of interrogatories;
Shlomo Pinhas Dep., p. 49).
16 Coser Dec., Exhibit E. Applicant’s restaurant is located in a
suburb of Phoenix. (Shlomo Pinhas Dep., pp. 53-54, 57).
17 Coser Dec., Exhibit E.
Opposition No. 91157167
19
that this email is not probative of actual confusion because
it does not in any way refer to applicant nor does it
identify any specifics regarding the ad in the Phoenix
airport.
The third purported instance of actual confusion is a
July 17, 2003 email from a prospective customer expressing
his disappointment that opposer was not operating a
restaurant in Arizona.18
I live in Arizona and make it a point to
visit Fogo de Chao every time I’m in
Texas. Recently (sic) I heard you
opened a restaurant in Arizona and was
disappointed to find out it was Fogo E
Brasa.

Applicant argues that this email is not evidence of actual
confusion because the statement confirms that the writer
recognized the differences in the marks and the source of
the services.
The final purported instance of actual confusion is the
user commentary at the end of an online review of FOGO E
BRASA (dated May 16, 2006) stating that “[t]he local Fogo
here in DFW charges $20 if you only want the salad bar.” 19
Applicant did not discuss the probative value of this
exhibit.

18 Coser Dec., Exhibit E.
19 Shlomo Pinhas Dep., Exhibit 30. This exhibit was referenced in
the previous section regarding whether consumers shorten
applicant’s mark FOGO E BRASA to FOGO.
Opposition No. 91157167
20
We recognize that none of these reported instances of
actual confusion constitutes a “smoking gun” (e.g., the is
no statement from an individual saying “here is a photograph
of the ad I saw in the Phoenix airport for FOGO E BRASA and
I thought it was a FOGO DE CHÃO restaurant”), but we also
recognize that evidence of actual confusion is very
difficult to obtain, and that any such evidence can be
criticized. Taken together, though, this evidence supports
our conclusion, as discussed below, that applicant’s use of
its mark for restaurant services is likely to cause
confusion with opposer’s marks.
G. Balancing the factors.
In view of the facts that the marks are similar and
that the services are identical, and because we must presume
that the services move in the same channels of trade and are
available to the same classes of consumers, we find that
applicant’s registration of the mark FOGO E BRASA and design
is likely to cause confusion with opposer’s marks FOGO, FOGO
DE CHÃO (stylized) and FOGO DE CHÃO and design all for
restaurant services.
Decision: The opposition is sustained and registration
to applicant is refused.