San Pasqual’s, Inc.

Trademark Trial and Appeal Board

Nov 24, 1997

No. 74435113 (T.T.A.B. Nov. 24, 1997)

Paper No. 21
PTH
THIS DISPOSITION IS NOT CITABLE
AS PRECEDENT OF THE TTAB NOV 24, 97
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re San Pasqual’s, Inc.
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Serial No. 74/435,113
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Susan B. King for San Pasqual’s, Inc.
Elizabeth A. Dunn, Trademark Examining Attorney, Law Office
109 (Deborah S. Cohn, Managing Attorney).
_______
Before Hanak, Hohein and Hairston, Administrative Trademark
Judges.
Opinion by Hairston, Administrative Trademark Judge:
San Pasqual’s, Inc. has filed an application to
register the mark PASQUAL’S SALSARIA for services which were
subsequently identified as “restaurant takeout and catering
services featuring southwestern, Santa Fe and Mexican foods;
[and] retail store services featuring southwestern, Santa Fe
and Mexican foods and food-related items, namely corn husks,
pots, pans, and utensils.”1

1 Application Serial No. 74/435,113, filed September 14, 1993,
alleging a date of first use and a date of first use in commerce
of May 15, 1993.
Ser No. 74/435,113
2
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 applied to its services, is
likely to cause confusion with the following registered
marks, owned by the same entity for the indicated goods and
services:
restaurant services;2 and
foods and ingredients of
foods—namely, ground
sausage, prepared sandwich
meat, garnish having a hot
flavor and including pickles,
cauliflower, onions, spices,
etc., mushrooms, breadhoggie,
which is an 8” loaf of bread,
mushroom sauce, meat balls,
pizza doughs, pizza sauce,
pepperoni, pickles, ravioli,
spaghetti cheese, spaghetti
(dry), ground beef steaks,
salad dressing, individual
servings of sugar in paper
bound sugar packs, spaghetti
sauce, tartar sauce, sold in
cans, in frozen form, and
also in dry containers;3

2 Registration No. 766,883 issued March 17, 1964; renewed.
3 Registration No. 849,520 issued May 21, 1968; renewed.
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restaurant services;4 and
foods and ingredients of
foods—namely, ground
sausage, prepared sandwich
meat, garnish having a hot
flavor and including pickles,
cauliflower, onions, spices,
etc., breadhoggie, which is
an 8” loaf of bread,
mushrooms, mushroom sauce,
meat balls, pizza doughs,
pizza sauce, pepperoni,
pickles, ravioli, spaghetti
cheese, spaghetti (dry),
ground beef steaks, salad
dressing, individual
servings of sugar in paper
bound sugar packs, spaghetti
sauce, tartar sauce, sold in
cans, in frozen form, and
also in dry containers;5 and
pizzas, spaghetti, pasta and
Italian-style sandwiches for
consumption on and off the
premises and restaurant
services6

4 Registration No. 766,884 issued March 17, 1994; renewed.
5 Registration No. 849,521 issued May 21, 1968; renewed.
6 Registration No. 1,134,255 issued January 9, 1979; Sections 8
& 15 affidavit filed.
Ser No. 74/435,113
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Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested.
We turn first to the question of likelihood of
confusion vis-a-vis Registration Nos. 766,883; 766, 884; and
1,134,255 since these are the most pertinent of the cited
registrations. Each of these registrations broadly covers
restaurant services.7 Applicant has attempted to
distinguish its particular restaurant services, i.e.,
restaurant takeout and catering services featuring
southwestern, Santa Fe and Mexican foods, from the
restaurant services in each of the above registrations,
arguing that registrant’s restaurants offer only Italian
food. Applicant’s argument is not persuasive. It is well
established that the question of likelihood of confusion in
a case such as this must be determined based on an analysis
of the marks as applied to the goods and/or services recited
in applicant’s application vis-a-vis the goods and/or
services recited in the cited registration. See In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981). Because registrant
has not limited the nature of the restaurant services
identified in any of these three registrations to a
particular type, we must consider the identifications to

7 While Registration No. 1,134,255 also covers “pizza,
spaghetti, pasta and Italian-style sandwiches for consumption on
and off the premises,” we have focused on “restaurant services”
since these are the most pertinent goods/services. Similarly,
while applicant’s application also covers retail store services,
Ser No. 74/435,113
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encompass all types of restaurants, including takeout
restaurants which offer southwestern, Santa Fe and Mexican
foods. Thus, for purposes of our analysis of likelihood of
confusion, the services of applicant and registrant are
legally identical and are offered to the same classes of
customers.
This brings us to a consideration of the marks. As our
principal reviewing court, the Court of Appeals for the
Federal Circuit, has pointed out, “[w]hen 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). In this case, we find that applicant’s
mark PASQUAL’S SALSARIA is sufficiently similar to each of
the cited marks,

we have focused on its “restaurant takeout and catering services
featuring southwestern, Santa Fe and Mexican foods.”
Ser No. 74/435,113
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in sound and appearance that confusion is likely when the
marks are used in connection with identical services. The
dominant portion of applicant’s mark, PASQUAL’S, is
substantially similar to PASQUALE’S in the registered marks.
Applicant argues that “Pasquale” is the Italian spelling of
a saint (Pascual) recognized in Spain, Latin America and
Mexico as the patron saint of cooking, and therefore
registrant’s marks consisting of PASQUALE’S are weak.
However, apart from the fact that the “historical sketch” of
Saint Pascual on which applicant relies is from an
undocumented source, i.e., a “framable print,” there is
nothing in this record to suggest that restaurant patrons in
this country are familiar with the significance of Saint
Pascual. Thus, applicant’s argument in this regard is not
well taken. With respect to applicant’s argument that the
SALSARIA portion of applicant’s mark distinguishes its mark
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from the above marks, we would point out that while SALSARIA
may suggest “something associated with Latin America,” it
also may suggest something associated with Italy because of
the “IA” ending. Further, the presence of a chef design in
one of the registered marks does very little in the way of
distinguishing that mark from applicant’s mark because the
chef simply reinforces the idea of a restaurant. In finding
that applicant’s mark is similar to the above marks, we have
kept in mind the normal fallibility of human memory and the
fact that purchasers retain a general rather than a specific
impression of trademarks encountered in the marketplace.
Another factor we have considered is that the record is
devoid of any evidence of third-party uses and/or
registrations of PASQUAL(E) marks for restaurant services.
As to applicant’s claim that it is unaware of any
actual confusion, this factor is of limited probative value
given that the date of first use set forth in applicant’s
application indicates that there has been only a brief
period of contemporaneous use of the marks.
In sum, we find that customers familiar with
registrant’s restaurant services offered under the above
three PASQUALE’S and PASQUALE’S and a chef design marks,
would be likely to believe, upon encountering applicant’s
mark PASQUAL’S SALSARIA for restaurant takeout and catering
services featuring southwestern, Santa Fe and Mexican foods,
Ser No. 74/435,113
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that the services originated with or were somehow associated
with the same entity.
Finally, with respect to the question of likelihood of
confusion vis-a-vis Registrations Nos. 849,520 and 849,521
which cover foods and food ingredients, there is no evidence
in this record from which we can conclude that restaurant
takeout and catering services featuring southwestern, Santa
Fe and Mexican foods and the particular foods and food
ingredients listed in these two registrations are related.
To establish likelihood of confusion, more must be shown
than that similar marks are used for food products and for
restaurant services. See Jacobs v. Multifoods Corporation,
F.2d, 212 USPQ 641 (CCPA 1982). Thus, notwithstanding the
similarities between the marks, we find on this record that
there is no likelihood of confusion between PASQUAL’S
SALSARIA for restaurant takeout and catering services
featuring southwestern, Santa Fe and Mexican foods and
registrant’s PASQUALE’S marks for the foods and food
ingredients in the above registrations.8
Decision: The refusal of registration on the ground of
likelihood of confusion with Registration Nos. 766,883;
766,884; and 1,134,255 is affirmed. The refusal of

8 We reach no finding as to whether applicant’s use of PASQUAL’S
SALSARIA for retail store services featuring southwestern, Santa
Fe and Mexican foods and food-related items, namely corn husks,
pots, pans and utensils would be likely to cause confusion with
registrant’s PASQUALE’S and PASQUALE’S and a chef design marks
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registration on the ground of likelihood of confusion with
Registration Nos. 849,520 and 849,521 is reversed.
E. W. Hanak
G. D. Hohein
P. T. Hairston
Administrative Trademark
Judges, Trademark Trial
and Appeal Board

for restaurant services and the foods and food ingredients
listed in the cited registrations.
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