Twin Dragons Baking Company, LLC

Trademark Trial and Appeal Board

Oct 15, 2021

88537913 (T.T.A.B. Oct. 15, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: October 15, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Twin Dragons Baking Company, LLC
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Serial No. 88537913
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Robert F. Kramer of Innovate Legal,
for Twin Dragons Baking Company, LLC.
Bridget Watson, Trademark Examining Attorney, Law Office 128,
Travis D. Wheatley, Managing Attorney.
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Before Taylor, Pologeorgis and English,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Twin Dragons Baking Company, LLC (“Applicant”) seeks registration on the
Principal Register of the mark shown below

Serial No. 88537913
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for the following goods, as amended:
Sugar-free, low-carbohydrate, and high-fat food products,
namely, sugar-free, low-carbohydrate, and high-fat baked
goods in the nature of breads, cakes, brownies, cookies,
biscotti, pizza crusts, ice cream sandwiches, sugar-free,
low-carbohydrate, and high-fat ice cream, sugar-free, low-
carbohydrate, and high-fat baking mixes for making
breads, cakes and cookies, and sugar-free, low-
carbohydrate, and high-fat confectionaries in the nature of
in the nature of [sic] chocolate, cookie dough and candies,
namely caramel, toffee, brittle, lollipops, and gummies
in International Class 30.1 The terms “BAKING CO.” and “DELICIOUS” have been
disclaimed. In addition, the application includes the following description: “The mark
consists of a pair of facing dragons disposed within a circle and above a rectangle
containing the words ‘TWIN DRAGONS’, the words ‘BAKING CO.’ below the
rectangle and the words ‘DOUBLY DELICIOUS’ forming a lower part of the circle.”
Color is not claimed as a feature of the mark.
The Trademark Examining Attorney refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a likelihood of
confusion with the mark in Registration No. 2108374, TWIN DRAGON, for “cookies,
noodles, won ton and egg roll wrappers” in International Class 30.2

1 Application Serial No. 88537913 was filed on July 25, 2019 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), and alleges December 16, 2017 as the date of first use
anywhere and in commerce.
Citations to the prosecution file refer to the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system by page number in the .pdf format. References to the briefs and
other materials in the appeal record refer to the Board’s TTABVUE online docketing system.
Complete URLs are available at the TSDR cite, where applicable.
2 Issued October 28, 1997; twice renewed. The mark is in typed format. Prior to November 2,
2003, “standard character” drawings were known as “type” drawings. A mark depicted as a
typed drawing is the legal equivalent of a standard character mark. In re Viterra Inc., 671
Serial No. 88537913
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When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. The appeal is fully briefed. We affirm the
refusal to register.
I. Applicable Law
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on
an analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973) (“DuPont”). We discuss these below. See In re Guild
Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019) (Board
considers each DuPont factor for which there is evidence and argument). Two key
considerations in any likelihood of confusion analysis are the similarities between the
marks and the similarities between the goods or services. See Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).

F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012); TRADEMARK MANUAL OF EXAMINING
PROCEDURE § 807.03(i) (July 2021).
Serial No. 88537913
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II. Discussion
A. Relatedness of the Goods, Channels of Trade and Classes of Consumers
We initially turn to the comparison of the goods under the second DuPont factor.
“This factor considers whether ‘the consuming public may perceive [the respective
goods] as related enough to cause confusion about the source or origin of the goods
and services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed.
Cir. 2014). In making our determination regarding the relatedness of the goods, we
must look to the goods as identified in Applicant’s application and the cited
registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous. Comput.
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is
legion that the question of registrability of an applicant’s mark must be decided on
the basis of the identification of goods set forth in the application regardless of what
the record may reveal as to the particular nature of an applicant’s goods, the
particular channels of trade or the class of purchasers to which the sales of goods are
directed.”)); see also In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011).
Additionally, when we assess the goods for relatedness, we must presume that
Applicant’s and Registrant’s recited goods encompass all goods of the nature and type
identified in the application and cited registration. See In re Solid State Design Inc.,
125 USPQ2d 1409, 1413-14 (TTAB 2018) (where the goods in an application or
registration are broadly described, they are deemed to encompass all the goods of the
Serial No. 88537913
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nature and type described therein); Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d
1007, 1025 (TTAB 2015), aff’d mem., 652 Fed. Appx. 971 (Fed. Cir. 2016) (same).
For ease of reference, we repeat the respective identifications below.
 Applicant’s Goods
Sugar-free, low-carbohydrate, and high-fat food products,
namely, sugar-free, low-carbohydrate, and high-fat baked
goods in the nature of breads, cakes, brownies, cookies,
biscotti, pizza crusts, ice cream sandwiches, sugar-free,
low-carbohydrate, and high-fat ice cream, sugar-free, low-
carbohydrate, and high-fat baking mixes for making
breads, cakes and cookies, and sugar-free, low-
carbohydrate, and high-fat confectionaries in the nature of
in the nature of chocolate, cookie dough and candies,
namely caramel, toffee, brittle, lollipops, and gummies
(Class 30)
 Registrant’s Goods
Cookies, noodles, won ton and egg roll wrappers (Class 30)
Acknowledging Applicant’s arguments highlighting the “sugar-free, low-
carbohydrate and high-fat” nature of its identified baked goods, Registrant’s broadly
worded and unlimited identification of “cookies” nonetheless encompasses Applicant’s
more narrowly identified sugar-free, low-carbohydrate, and high-fat baked cookies.
Thus, on the face of the respective identifications, the goods are in-part legally
identical. Applicant’s identification includes additional goods (including other baked
goods, baking mixes and confectionaries) that Applicant also argues are not related
to the goods in the cited registration. However, it is sufficient for a finding of
likelihood of confusion if relatedness is established for any item encompassed by the
identification of goods within a particular class in the application. Tuxedo Monopoly,
Serial No. 88537913
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Inc. v. General Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Inter
IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014).
Moreover, the Examining Attorney made of record screen captures from third-
party websites showing that the same entity provides one or more goods of the types
identified in both Applicant’s application and the cited registration, specifically
“cookies” and “baked goods, baking mixes and candy,” under the same mark.
Evidence of relatedness may include news articles and/or evidence from computer
databases showing that the relevant goods are used together or used by the same
purchasers; advertisements showing that the relevant goods are advertised together
or sold by the same manufacturer or dealer; and/or copies of prior use-based
registrations of the same mark for both applicant’s services and the services listed in
the cited registration. See, e.g., In re Embiid, 2021 USPQ2d 577, *22-23 (TTAB 2021)
(citing Ox Paperboard, 2020 USPQ2d 10878, *5 (TTAB 2020); Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (evidence
that “a single company sells the goods and services of both parties, if presented, is
relevant to a relatedness analysis”)).
The screen captures include, by way of example, the following:
FlapJacked website (www.flapjacked.com) offers cookies
and baking mixes for sale, under the FlapJacked mark3;
Sinfit Nutrition website (www.sinisterlabs.com) offers
cookies and baking mixes for sale, all under the SINFIT
mark4;

3 October 21, 2019 Office Action, TSDR 17-19.
4 Id. at TSDR 20-22.
Serial No. 88537913
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Pillsbury website (www.pillsbury.com) offers cookies, pizza
crust, and baking mixes for sale, all under the PILLSBURY
trademark5;
King Arthur Flour website offers cookies and bread and
baking mixes under the KING ARTHUR FLOUR mark6;
Williams Sonoma website (www.williams-sonoma.com)
offers cookies and baking mixes under the WILLIAMS-
SONOMA (with or without a hyphen) mark7;
Fly Creek Cider Mill & Orchard
(www.shop.flycreekcidermill.com) offers cookies and
baking mixes and candy under the FLY CREEK CIDER
MILL & ORCHARD mark8;
Harry & David (www.harryanddavid.com) offers cookies
and cakes, bakery mixes and candy under the HARRY &
DAVID mark9;
The Wisconsin Cheeseman website
(www.wisconsincheeseman.com) offers cookies and candy
under the WISCONSIN CHEESEMAN mark10; and
Godiva website (www.godiva.com) offers cookies and candy
under the GODIVA mark.11
We find the Internet evidence sufficient to show that Applicant’s baking mixes
and candy are related to Registrant’s cookies, such goods all being comestibles that
consumers may expect to be offered by the same entity under the same mark. See,
e.g., In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018)

5 May 13, 2020 Office Action, TSDR 7-9.
6 Id. at TSDR 10-12.
7 Id. at TSDR 13-14.
8 Id. at TSDR 16-18.
9 Id. at TSDR 19-22.
10 Id. at TSDR 34-35.
11 Id. at TSDR 36-37.
Serial No. 88537913
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(relatedness supported by evidence that third parties sell both types of goods under
same mark, showing that “consumers are accustomed to seeing a single mark
associated with a source that sells both.”); In re Anderson, 101 USPQ2d 1912, 1920
(TTAB 2012) (Internet excerpts from “several third-party car dealerships offering
‘tires’ for sale on their websites” was “evidence that consumers expect to find both
‘tires,’ . . . “and ‘automobiles’ . . . emanating from a common source.”).
Furthermore, because the goods described in the application and the cited
registration are in-part legally identical, we presume that the channels of trade and
classes of purchasers for those goods are the same. See In re Viterra, 101 USPQ2d at
1908 (identical goods are presumed to travel in same channels of trade to same class
of purchasers) (cited in Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1801 (Fed. Cir. 2018) (“With respect to similarity of the established trade channels
through which the goods reach customers, the TTAB properly followed our case law
and ‘presume[d] that the identical goods move in the same channels of trade and are
available to the same classes of customers for such goods....’”). Therefore, at a
minimum, the channels of trade and classes of consumers overlap.
We accordingly find the DuPont factors concerning the relatedness of the goods,
trade channels and classes of purchasers strongly favor a finding of likelihood of
confusion.
B. The Marks
We next consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. Stone Lion, 110
Serial No. 88537913
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USPQ2d at 1160; DuPont, 177 USPQ at 567. We do not predicate our analysis on a
dissection of the involved or cited mark; we consider the marks in their entireties.
Stone Lion, 110 USPQ2d at 1160; Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be
dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). However, 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 a consideration of the marks in
their entireties. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985). The issue is not whether the marks can be distinguished when subjected to a
side-by-side comparison, but rather whether the marks are sufficiently similar in
terms of their overall commercial impression that confusion as to the source of the
services offered under the respective marks is likely to result. Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). See
also San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196
USPQ 1, 3 (CCPA 1977). The proper focus is on the recollection of the average
customer, who retains a general rather than specific impression of the marks. L’Oreal
S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v.
Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106, 108 (TTAB 1975). The average consumers in this case
include ordinary persons seeking cookies, bakery mixes and confectionaries.
Serial No. 88537913
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We compare Applicant’s composite word and design mark, , with the
cited mark TWIN DRAGON. We initially find that the wording TWIN DRAGONS,
which appears in large cursive lettering across the center of Applicant’s mark, is the
dominant literal portion of Applicant’s applied-for mark. The wording BAKING CO.
has little to no source-indicating significance because it is descriptive and has been
disclaimed. As such, this term is entitled to less weight in our determination. See In
re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004) (descriptive
terms are properly given less weight). Also, the wording BAKING CO. visually is
considerably smaller than the words TWIN DRAGONS and is also smaller than the
remaining literal element, the phrase DOUBLY DELICIOUS, which is also in smaller
letters than the words TWIN DRAGONS. We are not convinced, as Applicant argues,
that the non-caps, cursive font used in the TWIN DRAGONS wording “is visually
more muted to the consumer when viewing the mark in relation to”12 the other literal
elements, which, while in block, all-cap letters are in much smaller-sized font.
We also do not find the phrase DOUBLY DELICIOUS to be a dominant and
distinguishing portion of Applicant’s mark. Applicant’s unsupported contention that
“‘DOUBLY DELICIOUS’ provides a play on words with respect to the other portion
of the Subject Mark, and in particular twin dragons that are visually and textually

12 10 TTABVUE 7 (Applicant’s reply brief, p. 3).
Serial No. 88537913
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displayed” does not persuade us otherwise. Applicant’s reply brief, p. 4.13 Given the
plain meanings of the word “doubly,” defined as “to twice the degree,”14 and the word
“delicious,” defined as “[h]ighly pleasant to the taste,”15 we find that the phrase
DOUBLY DELICIOUS in Applicant’s mark is more likely to be perceived as
suggesting that Applicant’s identified cookies, bakery mixes and confections are twice
as tasty as other similar goods than as the source of Applicant’s goods.
As for the design elements, while the composite design has “artistic/design
elements” that are visually prominent and add to the overall visual presentation of
Applicant’s mark, the twin dragon design comprises a visual representation of the
TWIN DRAGONS wording and, thus, merely reinforces the meaning conveyed by
those words. In addition, the circle and rectangle features are common basic shapes
that serve as outlining of, or carriers for, the other elements in Applicant’s mark,
without lending much, if anything, to the overall commercial impression. Seabrook
Foods, Inc., v. Bar-Well Foods Ltd., 568 F.2d 1342, 196 USPQ 289, 291 (CCPA 1977).

13 Id. at 8.
14 MERRIAM-WEBSTER (www.merriam-webster.com), accessed October 12, 2021. The Board
may take judicial notice of dictionary definitions, including online dictionaries that exist in
printed format or have regular fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227,
1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV
Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull
GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
15 October 21, 2019 Office Action, TSDR 13 (www.lexico.com). Notably, Applicant disclaimed
the word “delicious” pursuant to a requirement by the Examining Attorney; its disclaimer is
effectively a concession that at least this term is merely descriptive. Alcatraz Media Inc. v.
Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1762 (TTAB 2013), aff’d 565 F. App’x. 900
(Fed. Cir. 2014); Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc. 89 USPQ2d 1844,
1851 (TTAB 2008).
Serial No. 88537913
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Moreover, where both words and a design comprise a mark, the words are
normally accorded greater weight because they are more likely to make an impression
upon purchasers, would be remembered by them, and would be used by them to call
for or discuss the goods. In re Viterra 101 USPQ2d at 1912 (citing CBS, Inc. v.
Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“in a composite mark
comprising a design and words, the verbal portion of the mark is the one most likely
to indicate the origin of the goods to which it is affixed”)). Applicant is correct that
there is no general rule as to whether a design or wording will dominate. However,
even though the wording TWIN DRAGONS is smaller than the twin dragons design,
as stated, it is the literal equivalent of the design, the most significant literal element
in the mark, and will be used by consumers to call for and discuss the goods.
Comparing the marks in their entireties, as we must, we find them very similar
in appearance, sound and connotation as they include as the dominant, or only, literal
portion the wording TWIN DRAGON(S). Indeed, Applicant’s mark incorporates the
cited mark in its entirety, albeit adding the plural letter “s” to the word DRAGON.
There is, however, no material difference between the singular and plural form of the
word DRAGON and, therefore, TWIN DRAGON and TWIN DRAGONS will be
regarded as the same. “While each trademark must always be evaluated individually,
pluralization commonly does not alter the meaning of a mark.” In re Cordua Rests.,
Inc., 823 F.3d 594, 118 USPQ2d 1632, 1637 (Fed. Cir. 2016) (citing In re Belgrade
Shoe, Co., 411 F.2d 1352, 162 USPQ 227, 227 (CCPA 1969)). See also Wilson v.
Delaunay, 245 F.2d 877, 114 USPQ 339, 341 (CCPA 1957) (“there is no material
Serial No. 88537913
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difference, in a trademark sense, between the singular and plural forms of the word
‘Zombie’ and they will therefore be regarded here as the same mark”); Edison Bros.
Stores, Inc. v. Brutting E.B. Sport-Int’l GmbH, 230 USPQ 530, 532 (TTAB 1986) (“The
marks [EBS vs. EB and design] differ only by the single letter ‘s’ in opposer’s mark
and the diamond-shaped outline in applicant’s. Neither of these differences is
adequate, in our opinion, to obviate confusion among purchasers of shoes.”).
In addition, because the cited mark is in typed font, now designated as standard
characters, it is not restricted to a particular manner of display. More precisely, the
cited mark’s display is not limited to any particular font, style, size, or color, and we
therefore must consider that it might be used in any stylized display, including the
same or similar cursive lettering style used by Applicant in the TWIN DRAGONS
literal portion of its mark. See In re Viterra, 101 USPQ2d at 1909-10; Citigroup Inc.
v. Capital City Bank Grp., Inc., 637 F.3d 1344 , 98 USPQ2d 1253, 1259 (Fed. Cir.
2011). Given the general recollection of consumers, such presentation of the cited
mark would result in the perception by consumers that Applicant’s and Registrant’s
marks are companion marks used to identify complementary goods from the same
source.
Further regarding connotation, on this record, and given the in-part legal identity
of the goods, the wordings TWIN DRAGON(S) conveys the same arbitrary meaning
in both Applicant’s mark and the cited mark. The additional literal elements in
Applicant’s mark do not alter the meaning such that the marks are distinguished.
Serial No. 88537913
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Also, the most prominent element, namely, the twin facing dragons, merely echoes
the dominant wording TWIN DRAGONS.
We simply do not find persuasive Applicant’s unsupported contention that the
wording TWIN DRAGONS, coupled with a pair of identical twin-facing dragons, in
its mark creates a less “ominous symbol” than is connoted by the cited TWIN
DRAGON mark. To the extent consumers appreciate that DRAGONS is plural in
Applicant’s mark and not in the cited mark, or perceive a heart design resulting from
the space between the facing dragons, we are not convinced that consumers would,
as a consequence, perceive Applicant’s mark to “provide soft, gentle, ‘sweet’
impressions that a consumer may be likely to associate with particular goods (e.g.
baked goods and confectionaries)” while the cited mark would convey a connotation
of “reverence, mystery and ferocity that are commonly carried from Chinese myth
and folklore.” Applicant’s brief pp. 15-16.16 Therefore, despite Applicant’s contention
to the contrary, we find little difference in the connotations and commercial
impressions of the respective marks.
While, as Applicant points out, there are differences between the marks in
appearance and sound, we find that in their entireties, they are more similar than
dissimilar due to the shared wording TWIN DRAGON(S) and the design element in
Applicant’s mark that merely reinforces the commercial impression of TWIN
DRAGON(S).

16 7 TTABVUE 15-16.
Serial No. 88537913
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The DuPont factor of the similarity of the marks thus also favors a finding of
likelihood of confusion.
C. Conclusion
We find that confusion is likely between Applicant’s composite word and design
mark for the identified bakery items, including cookies, baking mixes
and confectionaries, and the cited mark TWIN DRAGONS for the identified cookies.
We conclude so principally due to the similarity of the marks, the in-part legally
identical and highly related goods and the presumed overlap in trade channels and
classes of consumers.
Decision: The refusal to register Applicant’s mark under Section
2(d) of the Trademark Act is affirmed.