Perfect Bar, LLC

Trademark Trial and Appeal Board

May 20, 2021

87902532 (T.T.A.B. May. 20, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: May 20, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Perfect Bar, LLC
_____

Serial No. 87902532
_____

Irene M. Hurtado and Margarita Wallach of McCarter & English, LLP,
for Perfect Bar, LLC.
J. Evan Mucha, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
_____

Before Cataldo, Heasley and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicant, Perfect Bar, LLC, applied to register the standard character mark
PERFECT BITES (“BITES” disclaimed) on the Principal Register for a variety of
foods and beverages such as food and snack bars, snack mixes, nuts, dips, spreads,
cereals, yogurts, cheese, and ice cream in International Classes 29 and 30.1

1 Application Serial No. 87902532 was filed on May 1, 2018, based on a declared intention to
use the mark in commerce, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). The
identification of goods is set forth in the Appendix to this decision.

Serial No. 87902532
- 2 -
The Examining Attorney refused registration under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), on the ground of likelihood of confusion with the registered
standard character mark THE PERFECT BITE CO. (“CO.” disclaimed) for “frozen
foods, namely, grain and bread based appetizers, hors d’oeuvres, and canapés” in
International Class 30.2
Applicant filed a notice of appeal and a request for reconsideration, which was
denied. The appeal is fully briefed.3 We affirm the refusal.
I. Evidentiary Matter
In its request for reconsideration, Applicant made of record TSDR records of third-
party application Serial Nos. 86909222 (PERFECT CRUNCH IN EVERY BITE) and
88417395 (4 BITES THE PERFECT SIZE BAGEL NOSH and Design), along with
several third-party registrations, to show coexistence of the marks therein with the
mark in the cited registration.4
The Examining Attorney did not address the third-party applications in his

2 Reg. No. 4662707, issued December 30, 2014; Section 8 and 15 declaration of use and
affidavit of incontestability accepted/acknowledged. Applicant also appealed the Examining
Attorney’s final refusal based on likelihood of confusion with the mark PERFECT BITES OF
DECADENCE in Registration No. 4631314. However, that refusal was obviated following
cancellation of that registration.
3 The Board initially dismissed the appeal based on Applicant’s failure to file a brief in
support of the appeal. 8 TTABVUE. However, Applicant subsequently filed a motion to set
aside the dismissal and accept its late-filed brief, provided with the motion. 10 TTABVUE.
Finding good cause for the motion, the Board vacated the dismissal and reinstated the appeal.
11 TTABVUE.
Page references to the application record are to the downloadable .pdf version of the USPTO's
Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions
and orders on appeal are to the Board's TTABVUE docket system.
4 July 24, 2019 Request for Reconsideration, TSDR 42-52.
Serial No. 87902532
- 3 -
reconsideration letter, perhaps because they were just pending applications. See Wet
Seal, Inc. v. FD Management, 82 USPQ2d 1629, 1634 (TTAB 2007) (A pending
applications is “not evidence of anything except that the application was filed on a
certain date.”). One of the pending applications (Serial No. 86909222) registered one
week prior to the Examining Attorney’s reconsideration letter (Reg. No. 5863428).
The other (Serial No. 88417395) registered five days after the Examining Attorney’s
reconsideration letter (Reg. No. 6161355).
Applicant provided copies of Registration Nos. 5863428 and 6161355 with its brief
and requests that we take judicial notice of them.5 The Examining Attorney opposes
Applicant’s request, and objects to Applicant’s reference to those third-party
registrations in its brief, because “[t]he Trademark Trial and Appeal Board generally
does not take judicial notice of third-party registrations.”6
“The record in the application should be complete prior to the filing of an appeal.”
Trademark Rule 2.142, 37 C.F.R. § 2.142. And as the Examining Attorney correctly
notes, the Board generally does not take judicial notice of registrations. See In re
Jonathan Drew, Inc., 97 USPQ2d 1640, 1644 n.11 (TTAB 2011) (“[T]the Board’s well-
established practice is not to take judicial notice of registrations that reside in the
USPTO….”). As a matter of general principle, routinely “allow[ing] the applicant or
the examining attorney to, in effect, add to the record during the appeal would
subvert the rule and require the Board to re-examine the application during the

5 10 TTABVUE 17, 29-33 (Exhibits to Declaration of Applicant’s Counsel).
6 12 TTABVUE 5 (Examining Attorney’s Brief).
Serial No. 87902532
- 4 -
appeal, based on the expanded record.” TRADEMARK TRIAL AND APPEAL BOARD
MANUAL OF PROCEDURE (TBMP) § 1208.02 (June 2020).
However, in this case, the Board’s stated concern regarding the need for
reexamination is not implicated; the application data for both pending applications
were already of record, and issuance of both registrations was imminent at or around
the time Applicant filed its appeal and requested reconsideration.
Thus, unlike the usual scenario where an applicant requests judicial notice of
evidence that clearly should have should have been submitted prior to appeal, the
circumstances of this case are somewhat analogous to an opposition proceeding where
an opposer seeks to rely on a prior pending application that has not yet registered.
There, pleading an application in the complaint provides adequate notice to the
applicant that the opposer intends to rely on the resulting registration, and allows
the opposer to make the issued registration of record without having to amend its
complaint. See United Glob. Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, n. 3 (TTAB
2014) (“When an opposer pleads ownership of the underlying applications in the
notice of opposition, the opposer may make the registrations which issue during the
opposition of record without having to amend the notice of opposition to assert
reliance on the registrations.”); Wise F&I, LLC v. Allstate Ins. Co., 120 USPQ2d 1103
n. 6 (TTAB 2016) (“The pleading of the application provides sufficient notice to
Applicant of Opposer’s intention to rely on the resulting registration.”).
We do not mean to suggest that an examining attorney is responsible for
monitoring the status of a pending application introduced by an applicant; that is an
Serial No. 87902532
- 5 -
applicant’s responsibility. Nevertheless, due to the particular circumstances of this
case, we will exercise our discretion and take judicial notice of Registration Nos.
5863428 and 6161355).7
II. Applicable Law
The fundamental purpose of Trademark Act Section 2(d) is to prevent confusion
as to source, and to protect registrants from damage caused by registration of marks
likely to cause confusion. Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189,
224 USPQ 327, 331 (1985). Our analysis is based on all of the probative evidence of
record. In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“DuPont”) (setting forth factors to be considered, hereinafter referred
to as “DuPont factors”). In making our determination, we consider each DuPont factor
for which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376,
129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). Varying weights may be assigned to each
DuPont factor depending on the evidence presented. See Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular

7 To ensure that this third-party registration evidence would be of record, the better practice
would have been for Applicant to file a request for remand of the application to the Examining
Attorney in order to make of record copies of the registrations. See Trademark Rule 2.142(d),
37 C.F.R. § 2.142(d). In light of the Board’s initial dismissal of the appeal for Applicant’s
failure to file a brief, the request for remand could still have been filed along with Applicant’s
motion to set aside the dismissal.
Our decision to exercise our discretion in this case to take judicial notice of these two third-
party registrations is limited to the particular facts of this case and should not be construed
as holding that an applicant or examining attorney is entitled to judicial notice of USPTO
records.
Serial No. 87902532
- 6 -
determination”).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); 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 Similarity or Dissimilarity of the Goods and Channels of
Trade

We begin with the second DuPont factor, which considers the “similarity or
dissimilarity and nature of the goods … described in an application or registration,”
and the third DuPont factor, which considers the “similarity or dissimilarity of
established, likely-to-continue trade channels.” DuPont, 177 USPQ at 567. Our
determinations under these factors are based on the goods identified in the
application and cited registration. See In re Dixie Rests. Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1534 (Fed. Cir. 1997); Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). “[L]ikelihood of
confusion can be found ‘if the respective goods are related in some manner and/or if
the circumstances surrounding their marketing are such that they could give rise to
the mistaken belief that they emanate from the same source.’” Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012)
(quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
Again, Applicant’s identified goods are essentially snack foods such as food and
Serial No. 87902532
- 7 -
snack bars, snack mixes, nuts, dips, spreads, cereals, yogurts, cheese, and ice cream,
and Registrant’s identified goods are “frozen foods, namely, grain and bread based
appetizers, hors d’oeuvres, and canapés.” To show that the goods are related, the
Examining Attorney introduced approximately 30 use-based, third-party
registrations showing that the same entity has registered a single mark identifying
the same or similar goods of both Applicant and Registrant, including:
Marks Relevant Goods

Reg. No. 3872662
(MANSOURA)8
Candied, roasted, seasoned, and shelled nuts; dried
fruit and fruit mixes; ice creams; cookies and crackers;
and frozen foods, namely, grain and bread based
appetizers, hors d'oeuvres, and canapés.

Reg. No. 4379128
(CACIA’S
BAKERY)9
Cheese spreads; food package combinations consisting
primarily of cheese, meat and/or processed fruit;
cookies and crackers; frozen foods, namely, grain and
bread based appetizers, hors d’oeuvres, and canapés;
ice cream desserts; ice-cream cakes.

Reg. No. 5121797
(BUEN
PROVENCHO and
Design)10
Nut-based snack foods; processed nuts; snack mix
consisting of dehydrated fruit and processed nuts;
cheese spreads; dehydrated fruit snacks; dips; drinking
yogurts; fruit based snack food; fruit chips; fruit paste;
fruit preserves; fruit-based spreads; snack food;
yogurt-based beverages; frozen foods, namely, grain
and bread based appetizers, hors d’oeuvres, and
canapés; cookies crackers; and corn chips.
Reg. No. 5381723
(ATKINS)11
Vegetable based, yogurt based, fruit based and soy
based ready to eat food bars; trail mix consisting
primarily of processed nuts, seeds, dried fruit; grain
based, chocolate based, oat based, cereal based and
granola based ready to eat food bars; cookies; trail mix
consisting primarily of granola and also including

8 July 1, 2018 Office Action, TSDR 45-47.
9 Id. at 48-51.
10 Id. at 52-55.
11 Id. at 68-71.
Serial No. 87902532
- 8 -
dried fruit, chocolate, processed nuts; prepared side
dishes, snacks, appetizers and desserts, and
refrigerated and frozen side dishes, snacks, appetizers
and desserts; dairy products, namely, ice cream, ice
milk, and frozen yogurt, in particular cookies, bakery
goods, and frozen confections, prepared, fresh,
refrigerated and frozen portable foods that are held in
hand while eating.

Reg. No. 5484546
(DEL RE ITALIAN
TRADITION)12
Dairy-based food beverages; fruit and soy based snack
food; fruit-based organic food bars; fruit-based snack
food; nut-based snack foods, namely, nut clusters and
nut crisps; processed fruit- and nut-based food bars;
snack food dips; cereal based energy bars; cereal based
snack food; frozen foods, namely, grain and bread
based appetizers, hors d’oeuvres, and canapés; grain-
based food bars and beverages.

Reg. No. 4827546
(EAT HEALTHY . . .
FEEL HEALTHY)13
Grain-based food bars also containing fruit and nuts;
snack food, namely, granola; granola and cereal based
snack bars, flavored popcorn; pretzels; frozen foods,
namely, grain and bread based appetizers, hors
d’oeuvres, and canapés; grain-based snack foods,
granola bars, cereal bars, cookies, grain-based snack
chips, snack mix consisting primarily of crackers,
candied nuts and pretzels, granola-based snack bars,
grain-based snack bars, ready to eat cereal-derived
food bars; ice cream cones; tortilla chips.

Reg. No. 5609770
(ELMA FARMS)14

Dairy products, namely, milk, yogurt, and cheese;
vegetable chips; dried fruits; preserved fruits,
vegetable-based spreads, tapenades, legume-based
spreads, fruit-based snack foods; vegetable-based
snack foods; grain-based snacks foods; cereal-based
snack foods containing nuts and crackers; frozen foods,
namely, grain and bread-based appetizers, hor [sic]
d’oeuvres, and canapés; quinoa-based snack foods.

Reg. No. 5653546
(NOB HILL
TRADING CO.)15
Cheese, specialty cheese, gourmet cheese, and
packaged gourmet cheese; dips; fruit butters, jams,
and jellies; fruit spreads and hummus spreads;

12 Id. at 79-82.
13 January 24, 2019 Final Office Action, TSDR 54-56.
14 September 24, 2020 Reconsideration Letter, TSDR 10-12.
15 Id. at 16-18.
Serial No. 87902532
- 9 -
cookies; frozen snacks and appetizers consisting
primarily of puff pastry; frozen snacks and appetizers,
namely, pastry based hors d’oeuvres, canapes [sic],
spanakopita and quiches.

Reg. No. 6092003
(PAPAOLIGO)16
Frozen foods, namely, grain and bread based
appetizers, hors d’oeuvres, and canapés; frozen yogurt;
ice creams; sherbets; sorbets.

Third-party registrations are relevant to show that the respective goods are of a
type that may emanate from a single source under one mark. L’Oreal S.A. v. Marcon,
102 USPQ2d 1434, 1140 (TTAB 2012); In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470
n.6 (TTAB 1988), aff’d (unpublished) No. 88-1444, 864 F.2d 149 (Fed. Cir. Nov. 14,
1988).
To further show the relatedness of goods—such as Applicant’s snack mixes,
cereals, cookies, spreads, dips, hummus, and popcorn—to Registrant’s “frozen foods,
namely, grain and bread based appetizers, hors d’oeuvres, and canapés,”17 the
Examining Attorney introduced various examples of third parties offering both types
of goods under the same mark on their websites, including the following:
• Simple Truth sells various frozen appetizers (omelet bites), cookies,
cereal, fruit and nut spreads, hummus, popcorn, nuts, seeds, fruit, nut
and grain-based energy bars, seeds, and trail mix.18

• Dean & Deluca sells appetizers (mini savory tarts, vegetable egg rolls),

16 Id. at 30-32 (Reg. No. 6092003).
17 A “canapé” is “an appetizer consisting of a piece of bread or toast or a cracker topped with
a savory spread (such as caviar or cheese).” https://www.merriam-
webster.com/dictionary/canape (accessed May 17, 2021). Our reference to appetizers thus
includes canapés.
18 July 1, 2018 Office Action, TSDR 15-25 (simpletruth.com).
Serial No. 87902532
- 10 -
nut mixes, pretzels, popcorn, potato chips, and nut-based food bars.19

• Harry & David sells frozen appetizers (twice baked potatoes, stuffed
artichoke hearts, mushroom puffs, savory swirls, lobster macaroni &
cheese bites, chicken Dijon croissants), dips, rice cracker snack mix,
vegetable and cheese spread, nuts, and popcorn.20

• MacKenzie Limited sells frozen appetizers (mini quiches) and other
appetizers (savory mini-boules, Cuban Cristo minis), and various dips
and spreads.21

• Williams Sonoma sells frozen appetizers and hors d’oeuvres (quiche
bites, omelet bits, chicken pot pie bites, “pigs in a blanket”), ice cream,
nuts, and hummus, dips.22

• World Market sells frozen appetizers and hors d’oeuvres (quiches,
pizza bites, mini shepherd’s pies, samosa, etc.), nut and fruit-based
snack mixes, cracker mix, trail mixes and snack nuts, vegetable spreads
and dips, and popcorn.23

• Wellsley Farms sells frozen appetizers (toasted ravioli, mozzarella
sticks, mini quiches, potato skins, puff pastries), ice cream, popcorn,
snack bars, nut and fruit spreads, dried fruits and nuts, and nut-based
trail mix.24

• Essential Everyday sells frozen snacks and appetizers (quiches, pizza
bites, cheeseburger sliders), ice cream, snack mixes, trail mixes and
snack nuts, and popcorn.25

• Annie’s sells frozen snacks and appetizers (mini pizza bagels, pizza
poppers), ice cream, snack bars, and snack mixes.26

19 Id. at 35 (deandeluca.com).
20 September 24, 2020 Reconsideration Letter, TSDR 44-46; January 24, 2019 Final Office
Action, TSDR 78-95 (harryanddavid.com).
21 Id. at 96-103 (mackenzieltd.com).
22 Id. at 104-119 (williams-sonoma.com).
23 Id. at 120-141 (worldmarket.com).
24 September 24, 2020 Reconsideration Letter, TSDR 39-43 (wellsleyfarms.com).
25 Id. at 47-50 (essentialeveryday.com).
26 Id. at 54-58 (annies.com).
Serial No. 87902532
- 11 -
This evidence supports the relatedness of the goods in the application and cited
registration by showing that consumers are accustomed to encountering such goods
offered under the same mark. See Detroit Ath. Co., 903 F.3d 1296, 128 USPQ2d 1047,
1050 (Fed. Cir. 2018) (crediting relatedness evidence that third parties use the same
mark for the goods and services at issue because “[t]his evidence suggests that
consumers are accustomed to seeing a single mark associated with a source that sells
both”); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001,
1004 (Fed. Cir. 2002) (stating that evidence that “a single company sells the goods
and services of both parties, if presented, is relevant to a relatedness analysis”).
We find the extensive evidence of third-party use and registration of the same
marks for goods such as Applicant’s and goods such as Registrant’s quite persuasive
to establish their relatedness.
Turning to the trade channels and classes of consumers, because the
identifications in the application and cited registration have no restrictions on
channels of trade, we must presume Applicant’s food and beverages travel in all
channels of trade appropriate for such goods, and the cited registration’s frozen
appetizers and hors d’oeuvres travel in all channels of trade appropriate for those
goods. See Hewlett-Packard, 62 USPQ2d at 1005. The third-party retail website
evidence discussed above establishes that goods such as Applicant’s and Registrant’s
travel in some of the same channels of trade to the same classes of consumers, who
include members of the general public. Applicant does not argue otherwise.
Applicant attempts to distinguish its goods from Registrant’s goods by arguing
Serial No. 87902532
- 12 -
that its goods are ready-to-eat, whereas Registrant’s goods take time to prepare
before they can be eaten:27
Applicant’s Mark covers goods that are convenient and ready for
consumption in an instant, without the need to defrost, microwave, cook,
or otherwise heat. Applicant’s goods are easily digestible and can be
eaten without utensils or flatware. In stark contrast, the Cited Goods
require at least a two-step process of preparation prior to consumption,
as the goods are frozen. Therefore, the Cited Mark’s Goods must be
thawed or defrosted and cooked in order to be consumed. As such, the
Cited Goods are not ready-to-eat, easy to pack and go products, in
contrast with the goods covered by Applicant’s Mark. Indeed, the Cited
Goods require flatware and / or utensils for consumption.

We are not persuaded. The goods need not be identical or even competitive to find
a likelihood of confusion. In re Country Oven, Inc., 2019 USPQ2d 443903, *4 (TTAB
2019) (citing On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d
1471, 1475 (Fed. Cir. 2000)). As noted, they need only be “related in some manner
and/or if the circumstances surrounding their marketing are such that they could
give rise to the mistaken belief that they emanate from the same source.” Coach
Servs., Inc., 101 USPQ2d at 1722 (internal citation omitted). As the third-party
registration and use evidence clearly demonstrates, the same companies commonly
provide both Applicant’s and Registrant’s goods under the same mark. Further, as
the Examining Attorney notes, “many appetizers, hors d’oeuvres and canapés are
considered ‘finger foods,’ that is, food to be held with the fingers.”28 Flatware is not
needed to eat a slider, a mozzarella stick, or a mini quiche.
Applicant also argues that, “in an effort to address the Examiner’s concerns,”

27 10 TTABVUE 24 (Applicant’s Brief).
28 12 TTABVUE 12 (Examining Attorney’s Brief).
Serial No. 87902532
- 13 -
“Applicant deleted savory frozen foods and all foods that are categorized as ‘frozen’
from its identification of goods with the exception of ice creams and gelato; sherbets;
sorbet; sorbet bars [sic] as those goods fall within a dessert category that is not
included in either the registration for or natural area of expansion of the goods in the
Cited Mark.”29 This too appears to be a distinction without a difference, particularly
in view of the third-party registration and use evidence showing the goods are related.
Finally, Applicant contends that the difference between Applicant’s and
Registrant’s goods “is also highlighted based on the different sections of supermarkets
or grocery stores in which the parties’ goods are found. The Cited Goods are found in
the frozen food sections that contain frozen savory foods such as frozen pizzas and
frozen dinners, whereas the Applicant’s Goods are not found in these sections.”30
Applicant has provided no evidence to support this contention, and “[a]ttorney
argument is no substitute for evidence.” Zheng Cai v. Diamond Hong, Inc., 901 F.3d
1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-
Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005)). Ice cream, gelato, sorbet and sherbet
may well be provided alongside or next to areas of stores providing frozen goods such
as appetizers and hors d’oeuvres. In any event, there is no per se rule that related
goods must be displayed together. The evidence in this case shows that the same
parties offer both frozen and non-frozen sweet and savory food goods under the same
mark.

29 10 TTABVUE 25 (Applicant’s Brief).
30 Id.
Serial No. 87902532
- 14 -
Moreover, “[i]f [goods] are found to be complementary in that they are sold in the
same stores to the same consumers for the same, related or complementary end use,
consumers are likely to be confused upon encountering the goods under the same or
similar marks even though the goods may be found in different areas within a store.
In re Davia, 110 USPQ2d 1810, 1816 (TTAB 2014)). Applicant’s nuts, chips, dips,
spreads, and ice cream are all the types of food items that would be provided together
at any social gathering, such as a party, along with Registrant’s appetizers and hors
d’oeuvres. “Thus, they are functionally related. … Such complementary use has long
been recognized as a relevant consideration in determining a likelihood of confusion.”
Id. at 1815.
The second and third DuPont factors weigh in favor of finding likelihood of
confusion.
B. The Similarity or Dissimilarity of the Marks

The first DuPont factor considers the “similarities or dissimilarities of the marks
in their entireties as to appearance, sound, connotation and commercial impression.”
In re Detroit Athl., 128 USPQ2d at 1051 (quoting DuPont, 177 USPQ at 567).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, 126 USPQ2d 1742, 1746 (TTAB 2018)
(quoting In re Davia, 110 USPQ2d at 1812), aff’d mem., 777 Fed. App’x. 516 (Fed. Cir.
2019).
The test is not whether the marks can be distinguished in a side-by-side
comparison, but rather whether their overall commercial impressions are so similar
Serial No. 87902532
- 15 -
that confusion as to the source of the goods offered under the respective marks is
likely to result. Zheng Cai, 127 USPQ2d at 1801 (citing Coach Servs., Inc., 101
USPQ2d at 1721. Our focus is on the recollection of the average purchaser, who
normally retains a general rather than a specific impression of service marks. See
Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687, 688 (CCPA
1969) (many consumers “may have but dim recollections from having previously seen
or heard one or the other of the involved marks.”); Inter IKEA Sys. B.V. v. Akea, LLC,
110 USPQ2d 1734, 1740 (TTAB 2014).
Although marks must be considered in their entireties, 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 similarity of the marks. In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Nat’l Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“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 consideration of the marks in their
entireties. Indeed, this type of analysis appears to be unavoidable.”).
Applicant argues that its PERFECT BITES mark is distinguishable from
Registrant’s THE PERFECT BITE CO. mark in appearance, sound, meaning and
overall commercial impression. “Applicant’s mark is two words,” whereas
Registrant’s mark “consists of four words, including the additional terms ‘THE’ and
‘CO.,’ as well as the term BITE used in the singular form as opposed to the plural
Serial No. 87902532
- 16 -
term BITES used in Applicant’s mark.”31 According to Applicant, these differences
“render the marks vastly different in appearance.”32 In particular, Applicant
contends that that its PERFECT BITES mark:
evokes the impression that the goods covered by Applicant’s Mark are
not only fulfilling and satiating, but also convenient, in terms of
transport or digestion. In contrast, the Cited Mark does not conjure up
any images of food items. Instead, the Cited Mark brings to mind a
company name, due to the additional terms, namely “THE” and “CO.”
This impression of a trade name is further reinforced by the Cited
Mark’s usage of the word “BITE” in the singular form, as opposed to
“BITES.” In viewing the Cited Mark as a whole, a consumer may even
believe that it is the name of a dental practice. In contrast, Applicant’s
Mark summons images of snack foods that are fulfilling in taste yet
easily digestible or convenient to travel with.33

We are unpersuaded. The indefinite article “THE” possesses little, if any, source
identifying capability. See In re Narwood Prods. Inc., 223 USPQ 1034, 1034 (TTAB
1984) (finding THE MUSIC MAKERS and MUSICMAKERS “virtually identical”
marks; the inclusion of the definite article “the” is "insignificant in determining
likelihood of confusion”); In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009)
(“The addition of the word ‘The’ at the beginning of the registered mark does not have
any trademark significance.”). Thus, omission of that term in Applicant’s mark is of
little to no consequence.
Similarly, the appropriately disclaimed generic company designation “CO.” in
Registrant’s mark has little, if any, source identifying capacity, since it “merely

31 10 TTABVUE 20 (Applicant’s Brief).
32 Id..
33 Id. at 22-23.
Serial No. 87902532
- 17 -
describe[s] the business form of the entity that owns the mark[ ].” In re Detroit Athl.,
128 USPQ2d at 1049. See Goodyear’s Rubber Mfg. Co. v. Goodyear Rubber Co., 128
U.S. 598, 602-03, 9 S. Ct. 166, 32 L. Ed. 535, 1889 Dec. Comm’r Pat. 257 (1888)
(adding generic business entity name such as “company” or “Inc.” usually does not
distinguish otherwise confusingly similar marks). Thus, although we do not ignore
this term, we give it little weight.
Nor does the minor difference between the singular and the plural make a
material difference. Swiss Grill Ltd., v. Wolf Steel Ltd., 115 USPQ2d 2001, 2011 n.17
(TTAB 2015) (holding “it is obvious that the virtually identical marks [SWISS
GRILLS and SWISS GRILL & design] are confusingly similar”); Weider Publ’ns, LLC
v. D & D Beauty Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014) (finding the singular
and plural forms of SHAPE to be essentially the same mark) (citing Wilson v.
Delaunay, 245 F.2d 877, 44 CCPA 1019, 114 USPQ 339, 341 (CCPA 1957) (finding no
material difference between the singular and plural forms of ZOMBIE such that the
marks were considered the same mark)).
Given “the penchant of consumers to shorten marks,” In re Bay State Brewing Co.,
117 USPQ2d 1958, 1961 (TTAB 2016) (citing In re Abcor Dev. Corp., 588 F.2d 811,
200 USPQ 215, 219 (CCPA 1978) (Rich, J., concurring) (“the users of language have
a universal habit of shortening full names—from haste or laziness or just economy of
words”)), and the suggestive laudatory nature of the term PERFECT BITE(S), it is
unlikely that consumers will rely on the omissions of “THE” and “CO” from
Registrant’s mark for purposes of distinguishing Applicant’s and Registrant’s marks.
Serial No. 87902532
- 18 -
See In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1188 (“consumers often have
a propensity to shorten marks” when ordering goods or services orally); In re Detroit
Athl., 128 USPQ2d at 1049 (“[N]on-source identifying nature of the words and the
disclaimers thereof constitute rational reasons for giving those terms less weight in
the analysis.”).
Both marks provide similar overall commercial impressions. PERFECT means
“being without fault or defect: FLAWLESS,”34 and a BITE is “a small morsel of
prepared food, intended to constitute a mouthful”35 or “a small amount of food:
SNACK.”36 The use of that term in both marks (whether singular or plural) provides
the same laudatory suggestion: that the food items provided under the marks are
flawless portions or snacks. Applicant’s claim that consumers would believe
Registrant’s mark to refer to a dental practice when it is used for “frozen foods,
namely, grain and bread based appetizers, hors d’oeuvres, and canapés” is, to say the
least, improbable “since a trademark has no existence apart from any goods or
services and the average consumer does not encounter a mark in the abstract.”
Tanners’ Council of America, Inc. v. Scott Paper Co., 185 USPQ 630, 637 (TTAB
1975). Both marks are for food and suggest the offering of PERFECT BITES of food
in snack form.

34 https://www.merriam-webster.com/dictionary/perfect (accessed May 13, 2021). The Board
may take judicial notice of dictionary definitions, including online dictionaries that exist in
printed format or regular fixed editions. Int’l Dairy Foods Ass’n v. Interprofession du Gruyère
and Syndicat Interprofessionnel du Gruyère, 2020 USPQ2d 10892, * 17 n. 115 (TTAB 2020).
35 July 1, 2018 Office Action, TSDR 43-44 (Oxford Dictionary).
36 https://www.merriam-webster.com/dictionary/bite (accessed May 13, 2021).
Serial No. 87902532
- 19 -
Viewing the marks in their entireties, as we must, we find them highly similar in
appearance, sound, connotation and commercial impression. The first DuPont factor
weighs strongly in favor of finding likelihood of confusion.
C. The Strength of the Registered Mark
Under the sixth DuPont factor, we consider “[t]he number and nature of similar
marks in use on similar goods.” DuPont, 177 USPQ at 567. As the Federal Circuit has
stated, “evidence of third-party use of similar marks on similar goods [or services]
‘can show that customers have been educated to distinguish between different marks
on the basis of minute distinctions.’” Jack Wolfskin Ausrustung Fur Draussen GmbH
& Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129,
1136 (Fed. Cir. 2015) (quoting Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d
1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015)).
Applicant did not provide evidence regarding the use of similar third-party marks
for similar goods or services, but did provide evidence of the following six third-party
registrations37 to show that Registrant’s mark “continues to coexist with numerous
other marks that include the terms PERFECT and BITE, for the same or related
goods and services.… Thus, the scope of protection afforded to the Cited Mark is
narrow, such that even slight differences in the marks and goods or services are
sufficient to prevent consumer confusion.”38
Marks Goods or Services

37 July 24, 2019 Request for Reconsideration, TSDR 43-46, 48-52. This list includes the two
third-party applications discussed above that matured into registrations.
38 10 TTABVUE 17 (Applicant’s Brief).
Serial No. 87902532
- 20 -
PERFECT BITES39
Pet food, cat food and cat treats.

40
Bite-size meat-based snack items.

PERFECT BITE BBQ41
Online retail store services featuring ribs
and sauces.
PERFECT BITE BUTT
POLISH42
Barbecue dry rub; dry spice rub for meats
and fish; spice rubs.
PERFECT CRUNCH IN
EVERY BITE43
Potato-based snack foods.
44
Bagel chips; bagels.

Applicant also points to its own registration of the mark PERFECT BITES for
“dietary and nutritional supplements; nutritional supplement energy bars;
nutritional supplements in the form of bars and bites,” in International Class 5, which
coexists with these third-party registrations.
Third-party registrations cannot show that Registrant’s mark coexists with a
“crowded field” of other similar marks in the marketplace “because third-party

39 July 24, 2019 Request for Reconsideration, TSDR 43 (Reg. No. 3999990).
40 Id. at 44 (Reg. No. 4348097).
41 Id. at 45 (Reg. No. 4231585).
42 Id. at 46. (Reg. No. 4651335).
43 Id. at 48-40 (Application Serial No. 86909222, now Reg. No. 5863428).
44 Id. at 51-52 (Application Serial No. 88417395, now Reg. No. 88417395).
Serial No. 87902532
- 21 -
registrations standing alone, are not evidence that the registered marks are in use
on a commercial scale, let alone that consumers have become so accustomed to seeing
them in the marketplace that they have learned to distinguish among them by minor
differences.” In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745
(TTAB 2016) (citing Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ
462 (CCPA 1973); AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268
(CCPA 1973); and Richardson-Vicks, Inc. v. Franklin Mint Corp., 216 USPQ 989
(TTAB 1982)). Nor can they be used to justify the registration of another confusingly
similar mark. In re J.M. Originals Inc., 6 USPQ2d 1393, 1394 (TTAB 1987). See also
Plus Prods. v. Star-Kist Foods, Inc., 220 USPQ 541, 544 (TTAB 1983) (“[T]hird party
registrations relied on by applicant cannot justify the registration of another
confusingly similar mark”).
Third-party registrations can be “relevant evidence of the inherent or conceptual
strength of a mark or term because they are probative of how terms are used in
connection with the goods or services identified in the registrations.” Id. at 1745-46.
But in this case, they are not. The registrations for the marks PERFECT CRUNCH
IN EVERY BITE and the [4 BITES THE PERFECT SIZE BAGEL
and Design] are not probative to show that the term “PERFECT BITE” is
conceptually weak because they do not contain the term “PERFECT BITE.” The
registrations for the marks PERFECT BITES for pet food and cat treats, and
Serial No. 87902532
- 22 -
PERFECT BITE BUTT POLISH for rubs and spices for meats and fish, are also not
probative in the absence of evidence showing, respectively, that human food is
commercially related to pet food and cat treats, or that spices and rubs are
commercially related to prepared snack foods. See Omaha Packing Co., 908 F.3d
1315, 128 USPQ2d 1686, 1693-94 (Fed. Cir. 2018) (the controlling inquiry under the
sixth DuPont factor is the extent of third-party marks in use on “similar” goods or
services); In re Inn at St. John’s, 126 USPQ2d at 1745 (unrelated third-party
registrations of little or no probative value).
We are thus left to consider the impact of the two remaining third-party
registrations for the marks PERFECT BITE BBQ for “online retail store services
featuring ribs and sauces” and for “bite-size meat-based snack items”
that arguably cover similar marks and goods/services. The probative value of the
mark in the latter registration is somewhat limited because the wording in the mark
is displayed in a manner that sets out the term “COOKED PERFECT” (shown
together and within a darkened bubble background) apart from the term “BITES”
(shown below and in a different and larger font), giving it the appearance that
“BITES” may be part of a line of “COOKED PERFECT” foods goods. Hence, the term
“PERFECT BITES” is not emphasized in the mark as a specific term. In any event,
the existence of these two third-party registrations hardly amounts to evidence
Serial No. 87902532
- 23 -
showing that the term PERFECT BITE in Registrant’s mark is conceptually weak.45
Neither does Applicant’s ownership of a registration for the same mark with
arguably similar goods. “To the extent Applicant is making an equitable estoppel
argument, it is not well taken. ... As often stated, each case must be decided on its
own facts, and occasionally an applicant with registrations for the same or very
similar marks may be unable to obtain subsequent registrations.” In re Jack B.
Binion, 93 USPQ2d 1531, 1535 (TTAB 2009); see also In re Sunmarks Inc., 32
USPQ2d 1470, 1472 (TTAB 1994). In any event, the Board is not bound by the actions
of prior examining attorneys. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001) (“Even if some prior registrations had some
characteristics similar to [applicant's] application, the PTO’s allowance of such prior
registrations does not bind the board or this court.").
The sixth DuPont factor is neutral in our analysis.
III. Conclusion
Having considered all evidence and arguments bearing on the relevant DuPont
factors, we conclude that Applicant’s PERFECT BITES mark for a variety of food and
beverage items including food and snack bars, snack mixes, nuts, dips, spreads,
cereals, yogurts, cheese, and ice cream, all offered to the same class of consumers

45 Applicant also argues that Registrant’s mark previously coexisted with Registration No.
4631314 for the mark PERFECT BITES OF DECADENCE for certain goods including snack
foods, which had been cited by the Examining Attorney as an additional basis for the
likelihood of confusion refusal but was withdrawn following its cancellation. “Dead’ or
cancelled registrations have no probative value at all.” In re Information Builders Inc., 2020
USPQ2d 10444, *19 n. 19 (quoting In re Kysela Pere et Fils Ltd., 98 USPQ2d 1261, 1264
(TTAB 2011)).
Serial No. 87902532
- 24 -
through some of the same trade channels, is likely to cause confusion with
Registrant’s mark THE PERFECT BITE CO. mark for “frozen foods, namely, grain
and bread based appetizers, hors d’oeuvres, and canapés.”46
Decision: The refusal to register is affirmed under Section 2(d) of the Trademark
Act. 15 U.S.C. § 1052(d).

46 While we have considered the likelihoood of confusion cases cited by Applicant as allegedly
analogous, we do not find the nature of their comparison of the marks applicable here. We do
not agree that the other cases offer helpful guidance in our analysis “because the critical facts
of different cases almost always differ substantially,” as they do here. In re Gen. Mills IP
Holdings II, LLC, 124 USPQ2d 1016, 1027 (TTAB 2017).
Serial No. 87902532
- 25 -
APPENDIX
Identification of Goods in the Application:
Nut based food bars; nut and seed based food bars; nut based snack
foods; fruit and nut food bars; fruit based snack bars also containing
nuts, grains, cereal and dried fruit; Fruit based snack foods; fruit based
food bars; Fruit and vegetable based snack foods; Fruit and vegetable
based food bars; Healthy snacks, namely, food bars comprised primarily
of nuts and fruits and also containing other ingredients; snack mixes
consisting primarily of processed fruits and nuts; Nutrition bars,
namely, nut and seed based snack bars; processed fruit-and nut-based
food bars; nut based snack food bars; fruit based snack food bars also
containing nuts, grains, cereals and dried fruit; Healthy snacks, namely,
nut and seed based snack bars; Dried fruit-based snacks; dried fruit
mixes; nut based snack foods, namely nut crisps and clusters; snack
dips; dairy based beverages; nut based beverages; hummus and
vegetable spreads and dips; yogurt based dips and spreads; yogurt,
[G]reek yogurt; cottage cheese, cheese; fruit chips; dried vegetables; nut
butters; nut spreads; nut butter substitutes made from sunflower seeds;
sesame seeds; Processed edible seeds, not being seasonings or flavorings;
nuts, namely, processed nuts, flavored nuts, and prepared nuts; Nuts,
namely, coconut chips, processed coconuts; Chopped dried fruit; seed
based snack bars; high protein nut based food bars; Snack foods, namely,
vegetable based snack foods, potato based snack foods; snack mixes
consisting primarily of processed fruits and processed nuts; Apple chips;
fruit chips, namely, dried fruit chips; Snack mixes consisting of baked
fruit and Snack mixes consisting of dehydrated fruit; Baked vegetables,
namely, baked vegetable snack chips made from potatoes, yucca, or
sweet potato; Snack mixes consisting of dehydrated fruit; Snack mixes
consisting of baked fruit; Bean-based snack foods; Potato chips; sweet
potato chips; snacks, namely, vegetable chips and snack foods made
from potatoes, yucca, and sweet potato; snacks, namely, potato flour
based snack foods and potato starch based snack foods, namely, potato
crisps; fruit based snack food bars also containing grains, cereals, dried
fruit, fruit juice; dairy based beverages; shakes; ice cream shakes; milk
shakes; bases for making milk shakes; dairy based powders for making
dairy-based food beverages and shakes; dairy based spreads and dips;
trail mix consisting primarily of processed nuts, seeds or dried fruit; trail
mix consisting primarily of seeds and also including rice; trail mix
consisting of processed legumes; trail mix consisting primarily of
processed legumes and also including rice; trail mix consisting of
processed nuts and seeds; trail mix consisting of processed nuts and
dried fruit; fresh cut vegetables and fruit; fresh ready to eat cut fruit;
cut fruit and vegetables with snack dips and sliced and packaged fruit
Serial No. 87902532
- 26 -
and vegetables; chips, namely, potato chips, vegetable chips, and fruit
chips; pre-packaged breakfast meals consisting of primarily of protein
in the form of eggs, nut butters, legumes, seeds, nuts and/or yogurt;
salads, dips and spreads consisting primarily of beans, peas and
legumes and also containing meats, seeds, nuts and fruit; spreads,
namely, vegetable spreads, dips and spreads consisting primarily of
yoghurt and hummus; dips and spreads consisting primarily of yoghurt
and hummus and also containing seeds, nuts, fruits and vegetables; dips
and spreads consisting primarily of yoghurt and vegetables; dips and
spreads consisting primarily of yoghurt and vegetables and also
containing seeds, nuts and fruit; salads, namely seafood salads; dips and
spreads, namely seafood-based spreads; snack dips; cheese in the form
of dips; dip mixes; cheese spreads; fruit spreads; meat based spreads;
peanut spread; garlic based spreads; nut based spreads; in International
Class 29; and

Cereal based snack food; Cereal based food bars; cereal bars, namely,
cereal-based food bars also containing nuts; Grain based food bars also
containing nuts; granola based food bars; grain based food bars also
containing dried fruit, seeds, quinoa and other ingredients; cereal based
snack food clusters; granola based snack bars; popcorn snack mixes
consisting primarily of popcorn and also containing other ingredients;
popped sorghum based food bars also containing other ingredients;
granola based snack mixes; rice based snack food; Snacks, namely,
grain-based, nutrient-dense ready-to-eat food bars, also containing dried
fruits, chocolate, nuts, seeds, and soy; Energy bars comprised primarily
of brown rice syrup; ready-to-eat grain based food bars; grain based
snack foods, namely, ready-to-eat grain based food bars; healthy snacks,
namely, food bars comprised of whole grains, namely, oats, brown rice,
millet, amaranth, buckwheat, quinoa and also containing other
ingredients; ready to eat, cereal derived food bars containing nuts;
Cereal-based snack food clusters consisting primarily of whole grains,
and also containing other ingredients, namely, nuts, fruits and seeds;
trail mix consisting primarily of rice and also including legumes; grain
based food bars also containing nuts; grain based food bars also
containing dried fruit, seeds, quinoa and other ingredients; Whole grain
based snack foods, namely, bars, cookies, clusters; whole grain meals,
namely, prepared and prepackaged breakfast and lunch meals
consisting primarily of whole grain, pasta, or rice, and also containing
meats or vegetables; whole grain-based salty snacks foods; oatmeal;
granola; cereal, namely, breakfast cereals, processed cereals; hot cereal;
popcorn; salty snacks made primarily with whole grain; yogurt covered
fruit; Yogurt-based snack foods, namely, yogurt covered nuts and fruit;
cereal based energy bars; quinoa-based food bars; high protein cereal
Serial No. 87902532
- 27 -
bars; Snack foods, namely, corn-based snack foods, rice-based snack
foods, and puffed corn-based snack foods; multigrain chips; pretzels;
instant rice; rice; Dairy based ice cream; reduced fat, low fat and fat free
ice cream; ice cream bars; ice cream sandwiches; gelato; sherbets; sorbet;
sorbet bars; chocolate-based spreads; trail mix consisting primarily of
pretzels, popcorn, granola; grain-based beverages; in International
Class 30.