Opinion

Another Broken Egg of Florida, Inc.

Court
Trademark Trial and Appeal Board
Filed
Sep 27, 2001
Status
Published
Author
Hairston
On the bench
Cissel, Hairston, Bottorff
Cited by
0 cases
Authority
More cited than 39.5%

The opinion

9/27/01 THIS DISPOSITION

IS NOT CITABLE AS PRECEDENT

OF THE T.T.A.B. Paper No. 8

PTH

UNITED STATES PATENT AND TRADEMARK OFFICE

________

Trademark Trial and Appeal Board

________

In re Another Broken Egg of Florida, Inc.

d/b/a Another Broken Egg Café

________

Serial No. 75/649,851

_______

Gregory C. Smith, Esq. of Garvey, Smith, Nehrbass & Doody,

L.L.C. for Another Broken Egg of Florida, Inc., d/b/a

Another Broken Egg Café.

Allison Hall, Trademark Examining Attorney, Law Office 103

(Michael Hamilton, Managing Attorney).

_______

Before Cissel, Hairston and Bottorff, Administrative

Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

An application has been filed Another Broken Egg of

Florida, Inc., d/b/a Another Broken Egg Café to register

the mark shown below for restaurant services.1

1

Application Serial No. 75/649,851 filed March 1, 1999, alleging

first use on August 18, 1998. The word “CAFÉ” has been

disclaimed apart from the mark as shown. The drawing is lined

for the colors yellow, red and brown. Applicant states that “The

mark consists of a design of a rooster in front of a sun with a

cracked egg at his feet with the words ANOTHER BROKEN EGG CAFÉ

beneath the image.”

Ser No. 75/649,851

The Trademark Examining Attorney has refused

registration under Section 2(d) of the Trademark Act on the

ground that applicant’s mark, when used in connection with

applicant’s services, as resembles the mark BROKEN EGG for

restaurant services,2 as to be likely to cause confusion.

2

Registration No. 1,116,493 issued to Broken Egg Enterprises,

Inc. (California corporation) on April 10, 1979; renewed.

2

Ser No. 75/649,851

When the refusal was made final, applicant

appealed. Applicant and the Examining Attorney have filed

briefs, but no oral hearing was requested.

Our determination under Section 2(d) of the Act is

based on analysis of all of the probative facts in evidence

that are relevant to the factors bearing on the likelihood

of confusion issue. In re E. I. du Pont de Nemours & Co.,

476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In any likelihood

of confusion analysis, two key considerations are the

similarities between the marks and the similarities between

the goods and/or services.

Turning first to the services, we note that the

services of applicant and registrant are identical.

Moreover, in the absence of any limitations in either the

application or registration, we must presume that

applicant’s restaurant services and registrant’s restaurant

services are offered to same classes of customers, i.e.,

the general public.

Turning next to a consideration of the marks, we begin

our analysis of whether confusion is likely by keeping in

mind two propositions set forth by the Court of Appeals for

the Federal Circuit. First, “when marks would appear on

virtually identical goods or services, the degree of

similarity necessary to support a conclusion of likely

3

Ser No. 75/649,851

confusion declines.” Century 21 Real Estate Corp. v.

Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700

(Fed. Cir. 1992). Second, in articulating reasons for

reaching a conclusion on the issue of likelihood of

confusion, there is nothing improper in stating that, for

rational reasons, more or less weight has been give to a

particular feature of a mark, provided the ultimate

conclusion rests on consideration of the marks in their

entireties. In re National Data Corp., 753 F.2d 1956, 224

USPQ 749, 751 (Fed. Cir. 1985).

In comparing applicant’s mark ANOTHER BROKEN EGG CAFÉ

and design with registrant’s mark BROKEN EGG, we find the

commercial impressions engendered by the marks to be

sufficiently similar that, when the marks are use in

connection with identical services, purchasers are likely

to be confused. In the present case, applicant’s mark is

dominated by the words ANOTHER BROKEN EGG CAFÉ which are

very similar to registrant’s mark BROKEN EGG. Applicant

has disclaimed exclusive rights to use CAFÉ, thereby

acknowledging the descriptiveness of the word with respect

to restaurant services. Further, although the design

element in applicant’s mark, i.e., the rooster in front of

a sun with a cracked egg at his feet, is certainly a

noticeable part of applicant’s mark, it is insufficient to

4

Ser No. 75/649,851

distinguish the marks because it reinforces the connotation

of the words BROKEN EGG. Finally, the addition of the term

ANOTHER in applicant’s mark does not change the overall

commercial impression of the mark. In fact, the term

ANOTHER gives the impression that applicant’s restaurant is

another in a chain or family of BROKEN EGG restaurants.

In sum, we conclude that purchasers familiar with

registrant’s BROKEN EGG restaurant services would be likely

to believe, upon encountering applicant’s restaurant

services offered under the mark ANOTHER BROKEN EGG CAFÉ and

design, that such services originated with or were somehow

associated with or sponsored by the same entity.

Decision: The refusal to register is affirmed.

5

Ser No. 75/649,851

6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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