Robert C. Juliano

Trademark Trial and Appeal Board

Sep 8, 2008

No. 78357694 (T.T.A.B. Sep. 8, 2008)

Mailed:
8 September 2008
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Robert C. Juliano
________

Serial No. 78357694
_______

Stephan P. Gribok of Duane Morris LLP for Robert C.
Juliano.

Amos T. Matthews, Trademark Examining Attorney, Law Office
117 (Loretta C. Beck, Managing Attorney).
_______

Before Walters, Drost, and Zervas, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On January 26, 2004, applicant Robert C. Juliano filed
an intent-to-use application to register the mark LLOYD’S
COFFEE HOUSE in standard character form on the Principal
Register for services currently identified as “coffee shop
services, namely, serving high-end gourmet coffee, teas and
other non-alcoholic beverages, doughnuts, pastries and
other light snacks in an atmosphere of social and community
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 78357694
2
exchange” in Class 43. Serial No. 78357694. Applicant has
disclaimed the term “Coffee House.”
The examining attorney has refused to register
applicant’s mark under Section 2(d) of the Trademark Act
(15 U.S.C. § 1052(d)) because of a prior registration for
the mark LLOYD’S (in typed or standard character form) for
restaurant services.1
When the refusal was made final, applicant filed
several requests for reconsideration and this appeal.
The examining attorney argues that the services are
very similar and that “applicant has incorporated the mark
in the cited registration and added a generic designation
which could not be registered. The mere addition of a
generic designation to LLOYD’S is not sufficient to
overcome a likelihood of confusion.” Brief at unnumbered
pp. 5 and 8.
Applicant maintains that “LLOYD’S is a weak mark for
restaurants, just as STEVE’S was in Steve’s Ice Cream v.
Steve’s Famous Hot Dogs, 3 USPQ2d 1477, 1478 (TTAB 1987).”
Reply Brief at 2. In addition, applicant also argues that

1 Registration No. 1121210, issued June 26, 1979. Renewed.
Ser No. 78357694
3
“coffee-houses and Registrant’s restaurant are distinctly
different categories of establishment.” Reply Brief at 4.2
In a case involving a refusal under Section 2(d), we
analyze the facts as they relate to the relevant factors
set out in 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 Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003); and Recot, Inc. v. Becton, 214 F.3d
1322, 54 USPQ2d 1894, 1896 (Fed. Cir. 2000). In
considering the evidence of record on these factors, we
must keep in mind that “[t]he fundamental inquiry mandated
by § 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods [or services]
and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA
1976).
We begin by addressing whether the marks are similar.
“The first DuPont factor requires examination of ‘the
similarity or dissimilarity of the marks in their

2 In his Reply Brief (p.2, n.1), applicant has referred to an
“online search engine, onelook.com, of electronic dictionaries”
regarding the term Lloyd as a given name. We normally do not
take judicial notice of online dictionaries that are submitted
for the first time on appeal. In re Total Quality Group, Inc.,
51 USPQ2d 1474, 1476 (TTAB 1999). Inasmuch as the record should
be complete prior to appeal, we will not consider this particular
evidence. 37 CFR § 2.142(d).
Ser No. 78357694
4
entireties as to appearance, sound, connotation and
commercial impression.’” Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177
USPQ at 567). In this case, the marks are LLOYD’S and
LLOYD’S COFFEE HOUSE. Both marks are shown in typed or
standard form so there is no difference in the stylization
of the marks. LLOYD’S is either the initial or only term
in the marks. Therefore, the only difference in the marks
is applicant’s addition of the words “Coffee House” to
registrant’s mark LLOYD’S.
While applicant has additional words in its mark, he
has disclaimed all the words that are not identical to
registrant’s mark, “Coffee House.” Disclaimed matter is
often “less significant in creating the mark’s commercial
impression.” In re Code Consultants, Inc., 60 USPQ2d 1699,
1702 (TTAB 2001). See also In re Chatam International
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004)
(“With respect to ALE, the Board noted that the term is
generic and that the registrant disclaimed it in its
registration. Because ALE has nominal commercial
significance, the Board properly accorded the term less
weight in assessing the similarity of the marks under
DuPont. As a generic term, ALE simply delineates a class
Ser No. 78357694
5
of goods”). “A coffeehouse, coffee shop, or café shares
some of the characteristics of a bar, and some of the
characteristics of a restaurant. As the name suggests,
coffeehouses focus on providing coffee and tea as well as
light snacks. Other foods range from baked goods to soups
and sandwiches, other casual meals, and light desserts.”
Final Office Action, www.wikipedia.org. Inasmuch as
applicant’s coffee shop services would serve high-end
gourmet coffee, teas and other non-alcoholic beverages,
doughnuts, pastries and light snacks, it is defined by the
term “coffee house” and applicant appropriately disclaimed
this generic term. While we do not ignore the term “Coffee
House,” we do not find that it would have much significance
in distinguishing applicant’s and registrant’s marks. M2
Software Inc. v. M2 Communications Inc., 450 F.3d 1378, 78
USPQ2d 1944, 1948-49 (Fed. Cir. 2006) (“When comparing the
similarity of marks, a disclaimed term, here
‘COMMUNICATIONS,’ may be given little weight, but it may
not be ignored”). In In re Dixie Restaurants Inc., 105
F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997), the Federal
Circuit agreed that the marks DELTA CAFE (“cafe”
disclaimed) and DELTA were similar. The addition of a
design and the term “cafe” was not sufficient “to create a
different commercial impression.” Id. at 1534.
Ser No. 78357694
6
Furthermore, the Court held that inasmuch as DELTA was
the dominant term in both marks, the “identity of the
dominant portion of Dixie's mark and the registered mark is
especially important in the restaurant industry ‘because
restaurants are often recommended by word of mouth and
referred to orally, [so] it is the word portion of
applicant's mark which is more likely to be impressed on
the consumer's memory.’” Id. at 1534, quoting, Giant Food,
Inc. v. Nation's Foodservice, Inc., 710 F.2d 1565, 218 USPQ
390, 395 (Fed. Cir. 1983). Similarly, the term LLOYD’S is
likely to be the term that customers remember when they
refer to applicant’s and registrant’s establishments.
Applicant argues that “LLOYD’S for restaurants is a
highly suggestive and diluted mark;” that “it is a given
name;” and that there “is little doubt that customers would
understand a restaurant under LLOYD’S name (in Alabama or
elsewhere) carries the name of its owner/founder.” Reply
Brief at 2.3 While we have not considered applicant’s
evidence regarding the popularity of “Lloyd” as a given
name, we do take judicial notice of the fact that “Lloyd”
is a given name (as well as a surname). See The Random

3 We note that “Lloyd’s” is identified as the name of an early
restaurant or coffee house in England. See www.answers.com
(restaurant) and www.wikipedia.com (coffee house).
Ser No. 78357694
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House Dictionary of the English Language (unabridged) (2d
ed. 1987).4
Applicant has submitted the following evidence to
support its argument that the “purchasing public is able to
distinguish between these businesses based on a small
distinctions among the marks.” Reply Brief at 3. Some of
this evidence includes a list of seven common law
trademarks.5 Three are for restaurant equipment or similar
companies (Lloyd’s Restaurant Equipment, Lloyd’s
Refrigeration & Air Conditioning, Gruner Prussner & Lloyd).
Two are for fairly different marks (Sal & Lloyd’s Pizza
Place and Jay & Lloyd’s Kosher Deli & Family Restaurant).
Applicant has also included internet evidence that there
are Lloyd’s Restaurants in Sutton, West Virginia; Chicago,
Illinois; Middlefield, Connecticut; Newport News, Virginia;
Marshalltown, Iowa; and Garwood, New Jersey. There are two
other pages that identify restaurants in Running Springs
(California?) and “Penn Yan.” The last two entries are so
abbreviated that they are entitled to little weight.

4 University of Notre Dame du Lac v. J.C. Gourmet Food Imports
Co., 213 USPQ 594, 596 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
5 Applicant has included some information from a trademark search
report to which the examining attorney has not objected.
However, the information is equivocal at best. For example, one
entry is identified as “Registration No. 9795” and it is listed
as “Not Renewed” and “Status Date Dec. 8, 1997.”
Ser No. 78357694
8
Accord In re Bayer Aktiengesellschaft, 488 F.3d 960, 82
USPQ2d 1828, 1833 (Fed. Cir. 2007) (“Search engine results
— which provide little context to discern how a term is
actually used on the webpage that can be accessed through
the search result link — may be insufficient to determine
the nature of the use of a term or the relevance of the
search results to registration considerations”). See also
In re Remacle, 66 USPQ2d 1222, 1223 n.2 (TTAB 2002)(“The
examining attorney's print-out of the results of an
Internet search by the Yahoo search engine are of little
probative value, largely because insufficient text is
available to determine the nature of the information and,
thus, its relevance”).
When we view applicant’s evidence, it does not
persuade us that the mark LLOYD’S is such a weak term that
the addition of the term “Coffee House” would distinguish
the marks. While extensive evidence of third-party use in
some cases has been a factor in the board’s determination
that there was no likelihood of confusion, the evidence in
those cases was much more significant. See, e.g., Steve’s
Ice Cream, 3 USPQ2d at 1479 (Applicant submitted “a survey
regarding the use of ‘STEVE'S’ and derivatives like
‘STEVE,’ ‘STEVEN,’ ‘STEPHEN,’ and so forth, used as all or
part of trade names for restaurants and food stores
Ser No. 78357694
9
throughout the United States. Starting with a computer
listing of such businesses taken from the electronic
classified phone directories offered by Dialogue
Information Services, he called a representative sampling
and verified that they did business under these names. A
total of 226 businesses, 137 restaurants and 89 food
stores, was listed”). Here, applicant’s evidence is even
less significant than the evidence of third-party use that
we did not find persuasive in Carl Karcher Enterprises Inc.
v. Stars Restaurants Corp., 35 USPQ2d 1125, 1131 (TTAB
1995): Applicant “has not furnished any evidence regarding
the extent of use of the marks by these third parties. The
geographic locations of these restaurants, in many
instances, are relatively obscure. Moreover, the pictures
of these restaurants tend to indicate that the operations
are small and local in nature.” While we conclude that the
term LLOYD’S is not necessarily a strong term, we cannot
find that it is a “diluted mark” as applicant argues.
Therefore, when we compare the marks, “there is
nothing improper in stating that, for rational reasons,
more or less weight has been given to a particular feature
of the mark, provided [that] the ultimate conclusion rests
on consideration of the marks in their entireties.” In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed.
Ser No. 78357694
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Cir. 1985). Under the facts of this case, we conclude that
the marks LLOYD’S and LLOYD’S COFFEE HOUSE are similar in
sound, appearance, meaning, and commercial impression. The
dominant and/or only part of the marks is identical.
Applicant’s additional term merely identifies a specific
type of eating establishment and it does not significantly
change the sound, appearance, meaning, or commercial
impression of the marks. See, e.g., Dixie Restaurants, 41
USPQ2d at 1534 (more weight given to common dominant word
DELTA).
Next, we must consider whether the services of
applicant and registrant are related. Registrant’s
services are restaurant services and applicant’s are coffee
shop services serving high-end gourmet coffee, teas and
other non-alcoholic beverages, doughnuts, pastries and
other light snacks in an atmosphere of social and community
exchange. For goods or services to be related, they do not
need to be identical or even competitive. It “has often
been said 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
circumstances surrounding their marketing are such that
they would be likely to be seen by the same persons under
Ser No. 78357694
11
circumstances which could give rise, because of the marks
used thereon, 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
[party’s] goods or services.” In re Melville Corp., 18
USPQ2d 1386, 1388 (TTAB 1991). See also Time Warner
Entertainment Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB
2002). We also do not read limitations into the
identification of services. Squirtco v. Tomy Corp., 697
F.2d 1038, 216 USPQ 937, 940 (Fed. Cir. 1983) (“There is no
specific limitation and nothing in the inherent nature of
Squirtco’s mark or goods that restricts the usage of SQUIRT
for balloons to promotion of soft drinks. The Board, thus,
improperly read limitations into the registration”).
Therefore, applicant’s argument that his “coffee-houses
will be a kind of a coffee shop similar to the one where
characters in a popular TV sitcom Friends (‘Central Perk’)
used to gather or a coffee shop where Dr. Frasier Crane
(Kelsey Grammer) would meet with his brother or his
assistant Roz for an espresso (or take his date out) in
another popular TV series Frasier” (Reply brief at 5) is
not persuasive.
In this case, registrant’s services are identified
simply and broadly as “restaurant services.” We must
Ser No. 78357694
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assume that registrant’s restaurant services could include
serving “high-end gourmet coffee, teas and other non-
alcoholic beverages, doughnuts, pastries and other light
snacks” in addition to whatever other items may be on its
menu. See Dixie Restaurants, 41 USPQ2d at 1534 (Restaurant
services and restaurant services specializing in Southern-
style cuisine are identical).
We also have considered the fact that applicant has
added the phrase “in an atmosphere of social and community
exchange” to its identification of goods. However, it is
not clear how this term would distinguish the services.
Restaurants, as public eating establishments, would also be
places of social and community exchange. Therefore, even
if there was a significant distinction between restaurants
and coffee houses, to the extent that both types of
services would include serving high-end gourmet coffee,
teas and other non-alcoholic beverages, doughnuts, pastries
and other light snacks in an atmosphere of social and
community exchange, there is a basic overlap of these
specifically-identified services.
Furthermore, the examining attorney has included some
evidence to show that restaurant services and coffee shop
services are related. These registrations suggest that the
services are related because they show a mark registered by
Ser No. 78357694
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common entity for both services. See In re Mucky Duck
Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (Although
third-party registrations are “not evidence that the marks
shown therein are in use on a commercial scale or that the
public is familiar with them, [they] may nonetheless have
some probative value to the extent that they may serve to
suggest that such goods or services are of a type which may
emanate from a single source”). See also In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB 1993).
2230505 – restaurant services, coffee shop services
and food preparation services

3052781 – restaurant services, coffee shop services,
bar services

2869200 – restaurant services; coffee shop services

Other evidence suggests a close relationship between coffee
shops and restaurants. See www.littleriverroasting.com
(“Little River – Spartanburg’s Coffee Shop and Lunch
restaurant”); http://newyork.citysearch.com (Teresa’s
Coffee Shop & Restaurant); and
http://hawaii.diningchannel.com (Dotty’s Coffee Shop &
Restaurant).
Applicant argues that “[c]offee-houses and restaurants
are distinctly different establishments. A coffee-house is
a type of coffee service entity that focuses on providing
coffee and tea, light snacks and serves as a center of
Ser No. 78357694
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social interaction. By contrast, restaurants are
establishments that serve food and beverages (often
alcoholic).” Reply Brief at 4 (footnote omitted).
However, even under applicant’s arguments, as we indicated
earlier, nothing precludes a “restaurant,” which applicant
defines broadly, as serving “food and beverages” from
serving, and even specializing in serving, coffee, tea, and
light snacks or from serving as a center of social
interaction. Indeed, the term “restaurant” includes “an
establishment that services prepared food and beverages to
be consumed on the premises. The term covers a
multiplicity of venues and a diversity of styles of
culture.” Denial of First Request for Reconsideration,
www.wikipedia.com. Restaurants can specialize in serving
coffee, various food items, and entertainment. See Second
Request for Reconsideration, www.alternativeground.com
(“Whitehall’s Alternative Coffee Shop and Restaurant:
Specialty Coffee - Fresh Food – Live Music”) and
www.joffreyrestaurant.com (Joffrey’s Coffee Co. &
Restaurant offers the finest hand-roasted coffees and fresh
food served daily… [F]eatured works by local artists, and
live entertainment (coming soon), add up to an environment
that’s conducive to cool and more than just a convenient
Ser No. 78357694
15
pit stop”).6 Other evidence suggests that the distinction
between restaurants and even coffee houses is not very
sharp. For example, Deux Gros Nez describes itself as
“Nevada’s first full-blow coffee house… Join us for a great
meal.” www.deuxgrosnex.com. See Denial of First Request
for Reconsideration, www.answers.com – (Restaurant – “a
place where meals are served to the public”). See also The
American Heritage Student Dictionary (1998) (Coffee House –
“A restaurant where coffee and other refreshments are
served”) and Webster’s II New Riverside University
Dictionary (1984) (Coffee House – “A place serving coffee
and other refreshments to customers”).7
Applicant also relies on In re Coors Brewing Co., 343
F.3d 1059, 68 USPQ2d 1059 (Fed. Cir. 2003) where the Court
of Appeals for the Federal Circuit held that the marks BLUE
MOON with different designs for beer and restaurant
services were not confusingly similar. We point out that
this case involves the question of whether restaurant
services and coffee shop services are related. The issue

6 Applicant has objected to the use of cached pages that “may
reference images which are no longer available.” Brief at 16.
It is certainly possible that a webpage may have changed after it
was printed or stored, but that fact does not mean that we should
give these pages “little consideration, if not disregard them
completely.” Id. We note that these pages were retrieved in
April 2007 and they have a copyright notice date of 2007. There
is nothing inherently unreliable about these particular pages.
7 We take judicial notice of these definitions.
Ser No. 78357694
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in Coors Brewing involved the application of the test for
whether food items and restaurant services are related.
Jacobs v. International Multifoods Corp., 668 F.2d 1234,
212 USPQ 641, 642 (CCPA 1982) (“To establish likelihood of
confusion a party must show something more than that
similar or even identical marks are used for food products
and for restaurant services”). Here, the evidence supports
the conclusion that applicant’s services are closely
related, if not overlapping, with registrant’s broadly
identified restaurant services.
We also add that the channels of trade and purchasers
of applicant’s and registrant’s services are likely to be
similar. Both services include serving high-end gourmet
coffee, teas and other non-alcoholic beverages, doughnuts,
pastries and other light snacks. Therefore, these services
could be encountered by the same purchasers who were
looking for establishments that serve prepared food of this
type. See Starbucks U.S. Brands LLC v. Ruben, 78 USPQ2d
1741, 1751 (TTAB 2006). Applicant’s evidence itself shows
entities identified as “Tsunami Coffee House” and “Lloyd’s
Restaurant & Bar” listed together under “California Open
Mikes.”
We also do not assume that there are any geographical
distinctions between the uses of the marks on the
Ser No. 78357694
17
identified services. Giant Food, Inc. v. Nation's
Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 393 (Fed.
Cir. 1983) (“Section 7(b) of the Trademark Act of 1946, 15
U.S.C. §1057(b), creates a presumption that the registrant
has the exclusive right to use its mark throughout the
United States. Therefore, the geographical distance
between the present locations of the respective businesses
of the two parties has little relevance in this case”);
Amcor, Inc. v. Amcor Industries, Inc., 210 USPQ 70, 73
(TTAB 1981) (“[T]he possible geographical separation
between the parties, although the evidence does show an
overlap on occasion, is of no significance in this
proceeding because applicant is seeking territorially
unrestricted registrations for its marks and, if granted,
the presumptions afforded the registrations under Section
7(b) include a presumption of use or the right to use the
registered marks throughout the United States”).
Therefore, we do not have to assume that a “high-end coffee
house in a large urban area would assume that a restaurant
in Alabama decided to franchise its name nationally…”
Reply Brief at 1 (parenthetical omitted).
Finally, we are also aware of the case of Lloyd's Food
Products Inc. v. Eli's Inc., 987 F.2d 766, 25 USPQ2d 2027
(Fed. Cir. 1993) apparently involving the same registration
Ser No. 78357694
18
that the examining attorney cited in this case. In the
Lloyd’s case, the Federal Circuit reversed the board’s
grant of summary judgment in favor of petitioner
(registrant in this case). The issue in that case involved
a Jacobs issue of whether food items were related to
restaurant services. The Court concluded that the board
drew “impermissible inferences from the evidence against
the nonmovant” and reversed the grant of summary judgment.
Lloyd’s, 25 USPQ2d at 2029. The Lloyd’s case does not
support a conclusion that there is no likelihood of
confusion in this case, which does not involve a motion for
summary judgment or the relatedness of food items and
restaurant services.
When we compare the marks LLOYD’S for restaurant
services and LLOYD’S COFFEE HOUSE for coffee shop services,
namely, serving high-end gourmet coffee, teas and other
non-alcoholic beverages, doughnuts, pastries and other
light snacks in an atmosphere of social and community
exchange, we find that the marks are very similar, with the
only the difference being the disclaimed term COFFEE HOUSE
in applicant’s mark. Customers are likely to believe that
applicant’s coffee shop services are simply another similar
service sponsored by or associated with registrant. As
such, confusion is likely here. We add that, to the extent
Ser No. 78357694
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we had any doubt, we have resolved it in registrant’s
favor. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6
USPQ2d 1025, 1026 (Fed. Cir. 1988). See also In re Chatam
International Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1948
(Fed. Cir. 2004).
Decision: The examining attorney’s refusal to
register applicant’s mark LLOYD’S COFFEE HOUSE for its
identified services on the ground that it is likely to
cause confusion with the registered mark LLOYD’S for
restaurant services under Section 2(d) of the Trademark Act
is affirmed.