Food Venture Capital Group, Ltd.

Trademark Trial and Appeal Board

Sep 18, 2000

No. 75573202 (T.T.A.B. Sep. 18, 2000)

Paper No.
CEW
9/18/00
UNITED STATES PATENT AND TRADEMARK OFFICE
___________
Trademark Trial and Appeal Board
___________
In re Food Venture Capital Group, Ltd.
___________
Serial Nos. 75/573,200 and 75/573,202
___________
Christine S. Kim and Raphael Golb of Rabinowitz, Boudin,
Standard, Krinsky & Lieberman for applicant.
Michael L. Engel, Trademark Examining Attorney, Law Office
108 (David Shallant, Managing Attorney).
____________
Before Simms, Walters and Bucher, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
Food Venture Capital Group, Ltd. has filed two
applications to register the marks SERAFINA FABULOUS GRILL
and SERAFINA FABULOUS PIZZA for “restaurant services,” in
International Class 42.1 The applications contain
disclaimers of the terms FABULOUS GRILL and FABULOUS PIZZA,
respectively.

1 Serial Nos. 75/573,200 and 75/573,202, respectively, both filed
October 20, 1998, based on allegations of a bona fide intention to use
the marks in commerce.
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT
OF THE T.T.A.B.
Serial Nos. 75/573,200 and 75/573,202
2
The Trademark Examining Attorney has finally refused
registration in each application under Section 2(d) of the
Trademark Act, 15 U.S.C. 1052(d), on the ground that
applicant’s mark so resembles the stylized mark SERAFINI’S,
shown below and previously registered for restaurant
services,2 that, if used on or in connection with
applicant’s services, it would be likely to cause confusion
or mistake or to deceive.
Applicant has appealed in each application. In both
appeals, applicant and the Examining Attorney have filed
briefs, but oral hearings were not requested. Because both
appeals present the same issue and similar facts, we have
considered the appeals together and issue a single opinion.
We affirm the refusals to register in each application.

2 Registration No. 1,112,499, issued January 30, 1979, in International
Class 42. The current owner of record is Serafini’s Restaurant, Inc.
[Sections 8 and 15 affidavits accepted and acknowledged, respectively.
The registration has been renewed for a period of ten years from May
13, 1999.]
Serial Nos. 75/573,200 and 75/573,202
3
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 likelihood of
confusion issue. See, In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In the
analysis of likelihood of confusion in this case, two key
considerations are the similarities between the marks and
the similarities between the services. Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24,
29 (CCPA 1976); and In re Azteca Restaurant Enterprises,
Inc., 50 USPQ2d 1209 (TTAB 1999) and the cases cited
therein.
Applicant’s recited services in the two applications
are identical to those recited in the cited registration.
Although applicant argues about differences in the nature
of applicant’s and registrant’s restaurant services and
their geographic locations, these purported differences are
immaterial to our consideration because neither the
applications nor the cited registration contain any such
limitations to the recitations of services. “The question
of likelihood of confusion must be determined based on an
analysis of the mark as applied to the goods and/or
services recited in applicant’s application vis-à-vis the
goods and/or services recited in [the] registration, rather
Serial Nos. 75/573,200 and 75/573,202
4
than what the evidence shows the goods and/or services to
be.” Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d
1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987). See also,
Octocom Systems, Inc. v. Houston Computer Services, Inc.,
918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1992); and The
Chicago Corp. v. North American Chicago Corp., 20 USPQ2d
1715 (TTAB 1991).
Moreover, neither applicant’s nor registrant’s
recitation of services contains any limitations as to
channels of trade or classes of customers. Thus, we must
presume that the services of applicant and registrant are
offered in all of the normal channels of trade to all of
the usual customers of restaurant services. See Canadian
Imperial Bank v. Wells Fargo, supra. In other words, we
conclude that the channels of trade and class of customers
of the parties’ services are the same.
Turning to the marks, we note that “when 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).
The Examining Attorney contends that SERAFINA is the
dominant portion of each of applicant’s marks because the
Serial Nos. 75/573,200 and 75/573,202
5
additional material in each mark is merely descriptive; and
that SERAFINA and SERAFINI’S are substantially similar in
sound, appearance, connotation and overall commercial
impression.
Applicant contends, on the other hand, that the marks
must be viewed in their entireties; that, as such, SERAFINA
is not the dominant portion of either of its marks; that
the Examining Attorney has improperly dissected its marks;
and that the marks are further distinguished by the
stylized format of the registered mark. Moreover,
applicant contends that the registered mark, SERAFINI’S, is
likely to be understood as a surname; whereas, SERAFINA is
likely to be understood as the name of a Biblical angel.
In support of its position, applicant submitted an excerpt
purportedly from The Oxford English Dictionary of
“seraphim” and four declarations of residents of New York
City.3
Our consideration of the marks is based on whether
each of applicant’s marks and the registered mark, when
viewed in their entireties, are similar in terms of
appearance, sound, connotation and commercial impression.

3 These declarations indicate the opinions of the declarants regarding
likelihood of confusion, which is immaterial to our determination. In
addition, they indicate the declarants’ opinions regarding the
connotations of Serafini and Serafina.
Serial Nos. 75/573,200 and 75/573,202
6
The test is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether
the marks are sufficiently similar in terms of their
overall commercial impressions that confusion as to the
source of the services offered under the respective marks
is likely to result. The focus is on the recollection of
the average purchaser, who normally retains a general
rather than a specific impression of trademarks. See,
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975). Furthermore, although the marks at issue must be
considered in their entireties, it is well settled that one
feature of a mark may be more significant than another, and
it is not improper to give more weight to this dominant
feature in determining the commercial impression created by
the mark.4 See, In re National Data Corp., 753 F.2d 1056,
224 USPQ 749 (Fed. Cir. 1985).
Considering applicant’s marks, SERAFINA FABULOUS GRILL
and SERAFINA FABULOUS PIZZA, both the words GRILL and PIZZA
are merely descriptive, if not generic, of significant
aspects of restaurant services; and the term FABULOUS is a
laudatory term describing, respectively, GRILL and PIZZA.

4 As the Examining Attorney correctly points out, the mere fact that the
SERAFINA portion of applicant’s marks is not identical to the word
SERAFINI’S in registrant’s mark, does not render this principle
inapposite.
Serial Nos. 75/573,200 and 75/573,202
7
SERAFINA as the first word in each mark, followed by merely
descriptive matter, is likely to be perceived by customers
as the dominant portion of each mark.
Registrant’s mark appears in a stylized script and in
the possessive form. It further differs from the dominant
portion of applicant’s marks in the final vowel. However,
we find these differences to be inconsequential. Rather,
we are persuaded that the dominant first word of each of
applicant’s marks is substantially similar in appearance
and sound to the word SERAFINI because it differs by only
the final letter. Regarding the connotation of the marks,
neither the few declarations nor the dictionary excerpt
defining “seraphim” establish that consumers are likely to
understand either SERAFINA or SERAFINI to mean seraphim or
angel; or that SERAFINA would be more likely than SERAFINI
to be so understood; or that SERAFINI would be understood
as a surname.
Given the fallibility of consumers’ memories and the
fact that they are unlikely to encounter the marks at the
same time or side-by-side, we find that applicant’s two
marks and registrant’s mark, considered in their
entireties, are substantially similar in overall commercial
impression.
Serial Nos. 75/573,200 and 75/573,202
8
Therefore, we conclude that in view of the substantial
similarity in the commercial impressions of applicant’s
marks, SERAFINA FABULOUS GRILL and SERAFINA FABULOUS PIZZA,
and registrant’s stylized mark, SERAFINI’S, their
contemporaneous use in connection with the identical
services involved in this case is likely to cause confusion
as to the source or sponsorship of such services.
Decision: The refusal under Section 2(d) of the Act
is affirmed.
R. L. Simms
C. E. Walters
D. E. Bucher
Administrative Trademark Judges,
Trademark Trial and Appeal Board