Nkhil Joshi

Trademark Trial and Appeal Board

May 13, 2008

No. 78851043 (T.T.A.B. May. 13, 2008)

Mailed: May 13, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Nkhil Joshi
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Application No. 78851043
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Joseph Agostino and John K. Kim (on brief) of Greenberg
Traurig, LLP for applicant.

Cheryl Clayton, Trademark Examining Attorney, Law Office 102
(Karen M. Strzyz, Managing Attorney).
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Before Quinn, Hohein, and Wellington,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

On March 31, 2006, Nkhil Joshi, an individual and
citizen of India, filed an application to register the mark
“Chai Time” (in standard character format) on the Principal
Register for “black tea; fruit teas; green tea; tea pods” in
International Class 30.1 Applicant disclaimed the term
CHAI.
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground
that applicant’s mark, when used on his identified of goods,
would so resemble the registered mark CHAI TIME (in standard

1 Application Serial No. 78851043, alleging a bona fide intent to
use the mark in commerce. Trademark Act § 1(b).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Application No. 78851043
2
characters) for “milk and milk products excluding ice cream,
ice milk and frozen yogurt; dairy based beverages” in
International Class 29 and “juice based beverages containing
granular tea and/or tea flavor” in International Class 32,2
as to be likely to cause confusion, mistake or deception.
Applicant has appealed, and briefs have been filed. We
affirm the refusal to register. In reaching this
conclusion, we have followed the guidance of the Court in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973). See also Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689 (Fed. Cir. 2005); In re Majestic Distilling Co.,
Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); In re
Dixie Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed.
Cir. 1997). In considering the evidence of record on these
factors, we keep in mind that “[t]he fundamental inquiry
mandated by Section 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods
and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
Turning first to a consideration of the marks,
applicant’s mark and the registered mark are legally

2 Registration No. 3134055, issued August 22, 2006. The claimed
date of first use (for both classes of goods) is July 1, 2005.
The term CHAI is disclaimed.
Application No. 78851043
3
identical, both consisting of the words CHAI TIME in
standard character format.3 The respective marks are
identical in sound, appearance, connotation, and overall
commercial impression.
This factor strongly supports a finding of likelihood
of confusion. In re Martin's Famous Pastry Shoppe, Inc.,
748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984) (use of
identical mark “weighs heavily against applicant”).
We turn next to the du Pont factor involving the
similarity or dissimilarity and nature of the goods. We
begin our analysis as to this factor with the premise that,
because the marks at issue are legally identical, the extent
to which the applicant’s and registrant’s goods must be
similar or related to support a finding of likelihood of
confusion is lessened. See In re Opus One Inc., 60 USPQ2d
1812, 1815 (TTAB 2001). It is only necessary that there be
a viable relationship between the goods to support a finding
of likelihood of confusion. See In re Concordia Int’l
Forwarding Corp., 222 USPQ 355, 356 (TTAB 1983).
Also, it has been repeatedly held that, when evaluating
the issue of likelihood of confusion in Board proceedings

3 The fact that applicant’s mark (as it appears on the
application drawing page) combines upper and lower case lettering
is irrelevant inasmuch as applicant claims standard character
format. See TMEP Section 807.03(e) (“If the applicant submits a
claim of standard character format, the mark shown in the drawing
does not necessarily have to appear in the same font style, size,
or color as the mark shown on the specimen of use.”)
Application No. 78851043
4
regarding the registrability of marks, the Board is
constrained to compare the goods as identified in the
application with the goods as identified in the cited
registration. See Octocom Systems Inc. v. Houston Computer
Services Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir.
1990); and Canadian Imperial Bank of Commerce, N. A. v.
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir.
1987).
In this case, the registered mark is for “juice based
beverages containing granular tea and/or tea flavor” as well
as “milk and milk products excluding ice cream, ice milk and
frozen yogurt; dairy based beverages.” The subject
application covers “black tea; fruit teas; green tea; tea
pods.” There appears to be some disagreement between
applicant and the examining attorney as to the scope of
applicant’s identified goods. Applicant contends that the
term “tea” refers only to “dry tea and powders for use as
flavorings.” Brief, p. 5. On the other hand, the
examining attorney argues that “tea” potentially includes
ready-made tea drinks as well as dry tea. Brief,
(unnumbered) page 5. Because there is no limitation on
applicant’s identified goods, we agree with the examining
attorney. Except for “tea pods”, we construe the term
“tea(s)” in the application as connoting goods in the nature
Application No. 78851043
5
of dry tea and as ready-made tea beverages.4 The evidence
submitted by the examining attorney shows that third-party
providers of tea-based beverages (and tea pods) may refer to
beverages simply as “black tea” or “green tea.”5 And,
inasmuch as both registrant’s and applicant’s goods include
beverages, they are clearly related. The additional factor
that the respective goods are either tea-based or tea-
flavored increases the degree of similarity.
Even if we were to accept applicant’s narrower
interpretation of his identification of goods, i.e., as not
including ready-made drinks, we would still find a
relationship between dry tea and registrant’s tea-flavored
juice beverages because the obvious purpose of dry tea is to
prepare a tea or tea-based beverage. We agree with the
examining attorney that “it is likely that a purchasing
consumer who came upon the registered goods could wrongfully
presume a connection between applicant’s teas and the
registrant’s juice-based beverage containing tea, assuming
that applicant’s CHAI TIME tea was the flavoring used in the

4 In this regard, we take judicial notice that “tea” is defined
as “the dried and prepared leaves of a shrub, Camellia sinensis,
from which a somewhat bitter, aromatic beverage is prepared by
infusion in hot water” and as “the beverage so prepared, served
hot or iced.” Random House Unabridged Dictionary (2006). The
Board may take judicial notice of dictionary evidence.
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co.,
213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983).

5 Lipton website printouts attached to April 6, 2007 Office
Action.
Application No. 78851043
6
registered CHAI TIME beverage containing tea.” Brief,
(unnumbered) p. 4. The examining attorney also provided
evidence that some purveyors of loose tea also sell tea
beverages.6 We have no doubt that, in the minds of
consumers of the respective goods, there is a relationship
between dry tea (used to make tea beverages) and ready-made
tea-flavored, juice beverages.
The examining attorney submitted evidence in support of
her refusal showing a relationship between applicant’s and
registrant’s goods, including seven (7) use-based, third-
party registrations covering at least some of applicant’s
goods (tea or tea-based beverages) and some of the cited
registrant’s goods (fruit juices, dairy-beverages, etc.).7
Applicant does not address these registrations in his brief.
These registrations, while not evidence of use, clearly show
that other purveyors have registered the same mark for both
tea products, such as applicant’s, and tea-flavored juices
or dairy-based beverages, such as registrant’s. See In re
Albert Trostel & Sons, 29 USPQ2d 1783 (TTAB 1993); In re
Mucky Duck Mustard Co., 6 USPQ2d 1467, 1469 (TTAB 1988),
aff'd (unpublished) No. 88-1444 (Fed. Cir. Nov. 14, 1988)
(Third-party registrations which individually cover a number

6 See, e.g., ITO EN website printouts attached to April 6, 2007
Office Action.
7 Attached to April 6, 2007 Office Action; all registrations
contain dates of use in commerce.

Application No. 78851043
7
of different items and which are based on use in commerce
may serve to suggest that the listed goods are of a type
that may emanate from a single source.) Accordingly, there
appears to be an overlap in the market for such goods, such
that use of the same mark for these respective products is
likely to cause confusion.
Applicant submitted evidence involving the registrant
and argued that registrant “manufactures, markets and sells
ingredients and chemicals for food products directly to food
manufacturers and processors.” Brief, p. 7. Applicant
therefore contends that “the goods covered by the [cited
registration] would, in all likelihood, be sold to food
manufacturers and processors and other business entities,
and not directly to end consumers.”8 Id. This argument and
attempt to distinguish the channels of trade is undercut by
the fact that the registration contains no such limitation
in the identification of goods. Accordingly, we must assume
that registrant’s identified goods move in all of the normal
trade channels for said goods and are likely to continue to
do so. And, because both registrant’s and applicant’s goods

8 Applicant also states that “[i]n fact, there is no
reference to [registrant’s] CHAI TIME products in actual
commercial use.” Brief, p. 7. This argument is irrelevant
in the context of an ex parte appeal as it is an improper
attack on the validity of the cited registration. If
applicant had wished to pursue such a claim, it should have
filed a petition to cancel the cited registration pursuant
to Section 14 of the Trademark Act.

Application No. 78851043
8
consist, in part, of non-alcoholic beverages, they may be
sold through the same channels of trade, including grocery
stores, and to the same classes of purchasers, the public at
large. See Chicago Dietetic Supply House v. Perkins
Products Co., 280 F.2d 155, 126 USPQ 367 (CCPA); In re H & H
Products, 228 USPQ 771 (TTAB 1986); and Seven-Up Co. v.
Aaron, 216 USPQ 807 (TTAB 1982). Moreover, the goods are
relatively inexpensive products and, as a consequence, may
also be purchased on impulse, thus increasing the likelihood
of confusion.
In weighing all the relevant likelihood of confusion
factors for which we have evidence, we find that because the
marks are identical, the goods are closely related, and move
in some of the same channels of trade to the same classes of
consumers, there is a likelihood of confusion.
Decision: The refusal to register under Trademark Act
§ 2(d) is accordingly affirmed.