Omega Foods Inc.

Trademark Trial and Appeal Board

Jul 26, 2001

No. 75660935 (T.T.A.B. Jul. 26, 2001)

7/26/01 Paper No. 9
CEW

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In re Omega Foods Inc.
___________

Serial No. 75/660,935
___________

Francis M. Pinckney of Kennedy, Covington, Lobdell &
Hickman for Omega Foods Inc.

Lisa Marie Leizear, Trademark Examining Attorney, Law
Office 101 (Jerry Price, Managing Attorney).
____________

Before Cissel, Hanak and Walters, Administrative Trademark
Judges.

Opinion by Walters, Administrative Trademark Judge:

Omega Foods Inc. has filed an application to register
BAR-B-Q KING as a trademark for “barbecue restaurant
services.”1[1] The application includes a disclaimer of
BAR-B-Q apart from the mark as a whole.
The Trademark Examining Attorney has finally refused
registration under Section 2(d) of the Trademark Act, 15
U.S.C. 1052(d), on the ground that applicant’s mark so

1[1] Serial No. 75/660,935, in International Class 42, filed March 15,
1999, based on use in commerce, alleging first use and use in commerce
as of June 30, 1961.

THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
resembles the mark BARBECUE KING, previously registered for
barbecue sauce,2[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. Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested. We affirm the refusal to register.
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
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); and In re Azteca Restaurant Enterprises, Inc., 50
USPQ2d 1209 (TTAB 1999) and the cases cited therein.

2[2] Registration No. 1,171,514 issued September 29, 1981, to Standex
International Corporation a.k.a. Barbecue King Corporation, in
International Class 30. The registration includes a disclaimer of
BARBECUE apart from the mark as a whole. [Sections 8 and 15
declarations accepted and entered, respectively.]

Considering, first, the marks, we note that applicant
does not address the issue of the similarities in the
marks, apparently conceding that the marks are
substantially similar. Regardless, we have considered the
marks and agree with the Examining Attorney that the marks
are identical in terms of sound and connotation. The marks
are very similar in terms of appearance and, further,
applicant’s BAR-B-Q is equivalent to the word “barbecue.”
Thus, we find that the commercial impression of applicant’s
mark is substantially similar to the commercial impression
of the registered mark.
Turning to consider the goods and services involved in
this case, we note that the question of likelihood of
confusion must be determined based on an analysis of the
services recited in applicant’s application vis-à-vis the
goods recited in the registration, rather than what the
evidence shows the goods or services actually are.
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). Further, it is a general rule that goods or
services need not be identical or even competitive in order
to support a finding of likelihood of confusion. Rather,
it is enough that goods or services are related in some
manner or that some circumstances surrounding their
marketing are such that they would be likely to be seen by
the same persons under circumstances which could give rise,
because of the marks used therewith, to a mistaken belief
that they originate from or are in some way associated with
the same producer or that there is an association between
the producers of each parties’ goods or services. In re
Melville Corp., 18 USPQ2d 1386 (TTAB 1991), and cases cited
therein.
The Examining Attorney contends that applicant’s
barbecue restaurant services are closely related to
registrant’s barbecue sauce products, arguing that
consumers familiar with applicant’s restaurant are likely
to believe, upon encountering registrant’s barbecue sauce,
that this product comes from or is sponsored by applicant.
In support of this position, the Examining Attorney
submitted numerous excerpts of articles from the
LEXIS/NEXIS database referring to restaurants that
separately market and sell their barbecue sauces, both at
the respective restaurant and at retail food
establishments. The Examining Attorney also notes that the
menu submitted by applicant includes a statement touting
its barbecue sauce in connection with its “BAR-B-Q TRAY”
special entree.3[3]
Applicant does not dispute or otherwise discuss the
Examining Attorney’s evidence. Applicant simply states
that “restaurant services and a container of barbecue sauce
are sufficiently different from one another that there
would be no likelihood of confusion between the respective
marks”; and that “customers who go to applicant’s
restaurant to purchase barbecue for consumption would, upon
coming into contact with a bottle or jar of barbecue sauce
at a food store, not be likely to make any association
between the restaurant and the food product normally sold
through food chains.”
We find that the evidence in this case supports the
conclusion that applicant’s restaurant services are closely
related to registrant’s goods.
Therefore, we conclude that in view of the substantial
similarity in the commercial impressions of applicant’s
mark, BAR-B-Q KING, and registrant’s mark, BARBECUE KING,
their contemporaneous use on the closely related goods and
services involved in this case is likely to cause confusion
as to the source or sponsorship of such goods and services.

3[3] The menu states, under the menu selection, “Served with Famous Bar-
B-Q King Sauce, Bar-B-Q Beans, Cole Slaw, Hushpuppies” (italics in
original).
Decision: The refusal under Section 2(d) of the Act
is affirmed.