Anne Byrnv.Culinaria, Ltd.

Trademark Trial and Appeal Board

Mar 30, 2012

No. 91189139 (T.T.A.B. Mar. 30, 2012)

Mailed: March 30, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Anne Byrn
v.
Culinaria, Ltd.
_____

Opposition No. 91189139
to application Serial No. 77404451
filed on February 2, 2008
_____

Paige W. Mills of Bass, Berry & Sims PLC for Anne Byrn.

Culinaria, Ltd, pro se.1
______

Before Cataldo, Wellington and Lykos, Administrative Trademark
Judges.

Opinion by Lykos, Administrative Trademark Judge:

On February 2, 2008, Culinaria (“applicant”) filed an
application to register the mark DINNER DOCTOR, in standard
character format, for “educational and entertainment services,
namely, a continuing program about food, health and lifestyle
accessible by radio, television, satellite, audio, video and
computer networks” in International Class 41. The application

1 It is unclear whether Nina Simonds is acting in the capacity of in-
house counsel for Culinaria, Ltd..
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Opposition No. 91189139
2
was filed pursuant to Section 1(a) of the Trademark Act, 15
U.S.C. § 1051(a), alleging November 26, 2006 as the date of
first use anywhere and May 5, 2007 as the date of first use in
commerce.2
Anne Byrn (“opposer”), by her second amended notice of
opposition, opposed the registration of applicant's mark on the
grounds of (1) priority of use and likelihood of confusion under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d); and (2)
fraud in connection with the ex parte prosecution of the
involved application. Insofar as opposer has not argued the
fraud claims in her brief, in accordance with the Board’s usual
practice, we find those claims to have been waived by opposer.
See e.g., Knight Textile Corp. v. Jones Investment Co., 75
USPQ2d 1313, 1314 n.4 (TTAB 2005).
Opposer’s allegations, in connection with her Section 2(d)
claim, include the following:
4. Since as early as 2003, and well prior to the filing
date of the Application, Opposer has used the trademark THE
DINNER DOCTOR in commerce in connection with her
entertainment and educational services, nonfiction books,
syndicated newspaper column, provision of information via a
global computer network, as well as various other culinary
and food related goods and services. In fact, Opposer has
appeared numerous times on television and radio and has
been commonly referred to as THE DINNER DOCTOR on those
entertainment programs.

2 Application Serial No. 77404451, with a disclaimer of “DOCTOR.”

Opposition No. 91189139
3
5. In addition, since at least as early as November 1999,
and well prior to the filing date of the Application and
the date of first use alleged by Applicant, Opposer has
used the mark THE CAKE MIX DOCTOR in commerce with a series
of nonfiction books, namely, recipe books containing
dessert and confection preparation instructions.
Furthermore, since at least as early as February, 2000, and
well prior to the filing date of the Application and the
date of first use alleged by Applicant, Opposer has used
the mark THE CAKE MIX DOCTOR in commerce in connection with
providing information on the field of desserts and
confections preparations via a global computer network.
Opposer’s marks are collectively referred to herein as the
“DOCTOR Marks.”
…
7. Opposer’s DOCTOR Marks have been significantly used and
branded in extensive print and advertising in connection
with her nonfiction books, computer services, and cooking
products. Opposer has invested substantial sums in
advertising promoting the services under the DOCTOR Marks.
Based on the extensive, substantially exclusive and
continuous use of the DOCTOR Marks by Opposer, the relevant
consuming public has come to recognize and does recognize
the DOCTOR Marks as being used by Opposer and to associate
and identify Opposer’s products.

8. Opposer’s use of the DOCTOR Marks predates Applicant’s
filing date of February 22, 2008 for DINNER DOCTOR.

Opposer’s Second Amended Notice of Opposition. Opposer also
pleaded ownership of Registration No. 2790131 for the mark THE
CAKE MIX DOCTOR for “series of nonfiction books, namely, recipe
books containing dessert and confection preparation
instructions” in International Class 16, and “providing
information in the field of desserts and confections
Opposition No. 91189139
4
preparations via a global computer network” in International
Class 42.3
Applicant has denied the salient allegations therein.4
I. The Record
Pursuant to Trademark Rule 2.122(b), the record includes
applicant's application file and the pleadings. In addition,
opposer introduced the following evidence and testimony:
The testimony Deposition of opposer, Ann Byrn, and exhibits
attached thereto;
The testimony Deposition of Suzanne Rafer, Executive Editor
and Publisher of Cookbook Publishing at Workman Publishing, and
exhibits attached thereto;5 and
Opposer’s Notice of Reliance dated January 26, 2011
comprising the following items:

3 Registered December 9, 2003, Section 8 and 15 affidavits acknowledged
and accepted, alleging October 20, 1999 as the date of first use anywhere
and in commerce for International Class 16 and February 1, 2000 as the
date of first use anywhere and in commerce for International Class 42.

4 The record shows that applicant failed to file an answer to opposer’s
second amended notice of opposition as ordered by the Board on March 10,
2010. However, insofar as opposer’s second amended pleading added
opposer’s fraud claim which opposer has elected not argue in her main
brief, we construe applicant’s answer filed April 13, 2009 as applicant’s
operative pleading in this proceeding.

5 According to opposer (and applicant does not dispute this in its
brief), applicant refused to consent to the submission of testimony via
affidavit in lieu of oral depositions. However, when opposer properly
noticed and took two testimony depositions, applicant did not make an
appearance to take cross-examination. The Board views with disfavor
applicant’s conduct. Applicant is reminded that the Board encourages
parties to use efforts such as the submission of testimony by affidavit
to save time and expense.

Opposition No. 91189139
5
-Opposer’s pleaded Registration No. 2790131 for the mark
THE CAKE DOCTOR MIX;
-Opposer’s application Serial Nos. 77680377, 77122293, and
77981121 and the application files therefor;6
-Applicant’s responses to opposer’s first set of requests
for admission, first set of interrogatories, and the documents
produced by applicant in response to opposer’s first set of
requests for production of documents and things;
-Excerpts from various printed publications.
Applicant introduced no evidence during its assigned
testimony period.
II. Opposer’s Motion for Default Judgment
As a preliminary matter, we address opposer’s motion for
default judgment based on applicant’s failure to submit evidence
during its assigned testimony period. Insofar as it is
opposer's burden as the plaintiff in this proceeding to prove
its case by a preponderance of the evidence, the motion is
denied.
III. Evidentiary Issues -- Opposer's Objections to Applicant’s
Nonconforming Evidence

In her reply brief, opposer submits that applicant’s brief
is replete with references to evidence not properly obtained or

6 Application Serial No. 77680377 remains pending; Application Serial No.
77122293 was subsequently abandoned; and Application Serial No. 77981121
matured into Registration No. 4029546.
Opposition No. 91189139
6
submitted before the Board, and therefore pursuant to Trademark
Rule 2.123(l) should not be considered. We will consider each
objection in turn.
First, opposer states that applicant “inappropriately cites
to statements and things in application and registration files.
Applicant’s reference to its submitted specimens and other
allegations regarding its and Opposer’s use of their respective
applied-for marks in commerce [sic]have not been identified and
introduced into evidence as exhibits during the testimony period
and should not be considered by the Board.” Opposer’s Reply
Brief, p. 13.
To the extent, if any, opposer is referring to applicant’s
reference to the involved application in this opposition,
opposer’s objection is overruled. As noted above, by operation
of Trademark Rule 2.122(b), the record includes applicant's
application file. However, to the extent that opposer objects
to applicant’s reliance, if any, on the application file to
establish its date of use, opposer’s objection is sustained.
The fact that an application file is automatically part of the
record in a proceeding does not mean that an allegation of a
date of use or the specimens filed therein constitutes evidence
on applicant’s behalf. The dates of use must be established by
competent evidence and the specimens must be identified and
introduced into evidence during the assigned testimony period.
Opposition No. 91189139
7
Trademark Rule 2.122(b). See also TBMP § 704.03(a) and cases
cited in Note 3. In addition, to the extent, if any, opposer is
referring to applicant’s references to applications and/or
registrations owned by opposer or third-parties introduced into
the record by opposer, opposer’s objection is also overruled.
It is well established that a party may rely on evidence
submitted by the adverse party. Finally, to the extent, if any,
opposer is referring to applications or registrations not
properly made of the record, opposer’s objection is sustained.
See Trademark Rules 2.122 and 2.123(l).
Next, opposer argues that applicant’s brief includes
factual assertions unsupported by testimonial evidence, and
specifically points to two statements made in applicant’s brief
on page 6 regarding applicant’s motivations and beliefs.
Insofar as applicant did not take any testimony in this case,
opposer’s objections are sustained.
Lastly, opposer argues that applicant’s brief includes a
number of statements regarding opposer’s motivations or actions
not supported by conforming evidence. Inasmuch as applicant
declined to cross-examine opposer’s witnesses, opposer’s
objection is sustained.
IV. Standing
As explained in detail in the discussion below regarding
priority, opposer, through her testimony and related exhibits
Opposition No. 91189139
8
and documentary evidence, has established that she uses the mark
THE DINNER DOCTOR in connection with a syndicated column and
website content provision services in the field of recipes and
culinary tips. See Giersch v. Scripps Networks Inc., 90 USPQ2d
1020, 1022 (TTAB 2009)(common-law use sufficient to establish
standing). Opposer has asserted a plausible likelihood of
confusion claim against applicant’s virtually identical mark.
Thus, opposer has demonstrated she possesses a real interest in
this proceeding beyond that of a mere intermeddler, and a
reasonable basis for its belief of damage. See Ritchie v.
Simpson, 170 F.3d 1902, 50 USPQ2d 1023 (Fed. Cir. 1999). See
also Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d
1024, 213 USPQ 185 (CCPA 1982). We find, therefore, that
opposer has proven her standing to bring the instant opposition
proceeding.
V. Priority
Applicant, in its brief, has focused solely on the issue of
priority to argue that opposer has failed to meet her burden of
proof in this case. Opposer has not pleaded ownership of a
federal registration for the mark THE DINNER DOCTOR.
Accordingly, to establish her priority, opposer must establish
her ownership and prior use, under common law, of a distinctive,
inherently or otherwise, mark in connection with her pleaded
“entertainment and educational services, nonfiction books,
Opposition No. 91189139
9
syndicated newspaper column, provision of information via a
global computer network, as well as various other culinary and
food related goods and services.” Opposer’s Second Amended
Notice of Opposition, ¶ 4. See Giersch v. Scripps, 90 USPQ2d at
1023; Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317,
209 USPQ 40 (CCPA 1981).
Although applicant failed to present any evidence at trial,
it is entitled to rely on its February 2, 2008 filing date as
its constructive use date. See Levi Strauss & Co. v. R. Josephs
Sportswear Inc., 36 USPQ2d 1328, 1332 (TTAB 1994) (an
application filing date for a use-based application can
establish first use of a mark). In her brief, however, opposer
submits that applicant’s date of first use is May 5, 2007, based
on applicant’s response to opposer’s requests for admission.7
See Opposer’s Notice of Reliance. Thus, in order for opposer to
prevail, opposer must establish use prior to May 5, 2007.8
At the outset, we note that the parties disagree as to the
applicable standard of proof for priority. Opposer contends
that opposer need only prove her case by a preponderance of the
evidence. Applicant, citing Hydro-Dynamics, Inc. v. George
Putnam & Co., Inc., 811 F.2d 1470, 1472, 1 USPQ2d 1772, 1773

7 Of course applicant had the option of claiming and proving a date of
first use earlier than its filing date by introducing evidence at trial.

8 Even if we relied on the later February 2, 2008 filing date of
applicant’s application as its constructive use date, our decision on
priority would remain the same.
Opposition No. 91189139
10
(Fed. Cir. 1987), maintains however that opposer must prove her
case by clear and convincing evidence.
Applicant’s reliance on Hydro-Dynamics for the above
proposition is misplaced. As our primary reviewing court, the
Court of Appeals for the Federal Circuit, made clear in that
case, the heightened standard of clear and convincing evidence
only applies in instances where a trademark applicant has filed
an application alleging a specific date of first use and then
subsequently asserts an earlier date of first use. “Where an
applicant seeks to prove a date earlier than the date alleged in
its application, a heavier burden has been imposed on the
applicant than the common-law burden of preponderance of the
evidence.” Id. Here, opposer is not attempting to assert a
date of first use prior to the date alleged in her pending
application. Rather, she is relying on her common law rights to
establish priority. Thus, “the decision as to priority is made
in accordance with the preponderance of the evidence.” Id. See
also Standard Knitting Ltd. v. Toyota Jidosha Kabushiki Kaisha,
11 USPQ2d 1917, 1929 (TTAB 2006).
Turning now to our substantive analysis, applicant devotes
much of its brief arguing that because opposer’s purported prior
use consists of the title of a single work, opposer cannot
establish prior common law rights in THE DINNER DOCTOR mark.
Opposition No. 91189139
11
Opposer in turn relies largely on the family of marks doctrine9
to argue that she is entitled to a common law priority date
based on the prior date of use for THE CAKE MIX DOCTOR book
series as well as other “DOCTOR” formative marks.10 We need not
reach these issues however because the record shows that
commencing respectively in 2003 and 2004, opposer has
continually used in interstate commerce THE DINNER DOCTOR as a
mark to identify a web site and a syndicated weekly column on
the topics of recipes and food preparation such that opposer has
clearly established common law rights in the mark. According to
opposer’s testimony, she commenced use of THE DINNER DOCTOR mark
on a web site providing content in the field of recipes and
cooking tips in 2003:
Q. So consumers began seeing your “Dinner Doctor” page
when?
A. In the fall of 2003; it coincided with the release of
the “The Dinner Doctor” cookbook.
…

9 The family of marks doctrine is more appropriately invoked when
analyzing likelihood of confusion. See e.g., J & J Snack Foods Corp. v.
McDonald's Corp., 932 F.2d 1460, 18 USPQ2d 1889, 1891 (Fed. Cir. 1991).

10 In her reply brief, opposer submits that she has acquired secondary
meaning in the title of her cookbook THE DINNER DOCTOR. Whether opposer
has acquired secondary meaning in this regard is irrelevant to our
analysis of priority and likelihood of confusion. The title of a single
creative work is not registrable on either the Principal or Supplemental
Register unless the title has been used on a series of creative works.
Herbko Int'l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375,
1378 (Fed. Cir. 2002).
Opposition No. 91189139
12
Q. Ms. Byrn, do you recognize Exhibit 9?
A. I do. These are pages and blogs from “The Dinner
Doctor” portion of my website, “The Cake Mix Doctor,”
where I’m actually talking about different recipes,
chicken piccatas, Asian chicken salad. The chicken
piccata blog was written February 4, 2004. The Asian
chicken salad blog October 25, 2003. Sour cream
cinnamon loaf I shared October 23, 2003. So you can
see that dating back 2003, 2004, I was very active in
sharing recipes, and it’s all the way up to date.
It’s still an active part of the “The Cake Mix Doctor”
website.
Q. …this is your opportunity now to make clear exactly
when you began using “The Dinner Doctor” on the Web
and how long you have used it, so feel free to just
remark.
A. Well, I have been using “The Dinner Doctor” mark on my
website since the fall of 2003. As I mentioned, I was
sharing a recipe for the sour cream cinnamon loaf on
October the 23rd, 2003. So as far back as 2003 I have
been using “The Dinner Doctor” mark on my website.
Opposer’s Testimony Deposition Transcript, p. 27-8.
Opposition No. 91189139
13
As further reflected in her testimony deposition
transcript, opposer also commenced use of THE DINNER DOCTOR mark
to identify a syndicated weekly column in 2004:
Q. What date did you begin “The Dinner Doctor” column,
for example?
A. 2004.
Q. And was that published just in your hometown, or
elsewhere?
A. No, it was published in a couple dozen cities across
the United States.
Q. Okay.
A. And it continues to be published.
Q. And is it currently in syndication?
A. Yes, it is.
Opposer’s Testimony Deposition Transcript, p. 20, lines 10-20.
Opposer’s testimony is credible and not characterized by
contradictions or inconsistencies. See Powermatics, Inc. v.
Glebe Roofing Products Co., 341 F.2d 127, 144 USPQ 430, 432
(CCPA 1965)(oral testimony, even of a single witness, if
“sufficiently probative,” may be sufficient to prove priority);
4U Co. of America, Inc. v. Naas Foods, Inc., 175 UPSQ 251, 253
(TTAB 1972). In addition, her testimony is corroborated by the
testimony of Suzanne Rafer (opposer commenced use of THE DINNER
DOCTOR mark on syndicated columns in 2004; opposer commenced and
Opposition No. 91189139
14
has continually used the mark on the website since 2003)(Rafer
Testimony Deposition Transcript, p. 14, lines 24-25; p. 16,
lines 5-13) as well as printouts from opposer’s website bearing
THE DINNER DOCTOR mark dated September 20 and October 13, 2010
(Opposer’s Testimony Deposition Transcript, Exhibit 9 Bate
Stamps “BYRN 0030-0075”) and the following documentary evidence
for the syndicated column:
-A copy of Opposer’s syndicated column published in the
Chicago Sun-Times, dated July 7, 2004;
-A copy of Opposer’s syndicated column published in the
Chicago Sun-Times, dated July 7, 2004;
-A copy of Opposer’s syndicated column published in the
Chicago Sun-Times, dated July 14, 2004;
-A copy of Opposer’s syndicated column published in the
Chicago Sun-Times, dated July 28, 2004; and
- A copy of Opposer’s syndicated column published in the
Chicago Sun-Times, dated August 4, 2004.
Opposer’s Testimony Deposition Transcript, Exhibit 5, Bate Stamp
“BYRN 0176-0179” and Opposer’s Notice of Reliance.11
Applicant argues that opposer’s syndicated column and
website are ancillary services designed to promote opposer’s

11 While the documentary evidence submitted by opposer certainly
strengthens her case, the testimony of a witness, even without
documentary evidence, can be sufficient to prove priority. See 3 J.
Thomas McCarthy: McCarthy on Trademarks and Unfair Competition § 16.06(2)
(4th ed. updated 2008).
Opposition No. 91189139
15
book. While the column and website may indeed have that purpose
and effect, the record evidence demonstrates that they do stand
alone as a separate service.
In sum, opposer has demonstrated by a preponderance of the
evidence prior use of THE DINNER DOCTOR mark in connection with
a syndicated weekly newspaper column and website in the field of
cooking, recipes and culinary tips.
VI. Likelihood of Confusion
As noted above, although applicant in its brief focused
solely on the issue of priority which we have now determined in
opposer’s favor, opposer as the plaintiff in this proceeding,
must also establish a likelihood of confusion in order to
prevail.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
likelihood of confusion. 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 Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003).
A. The Marks
We first turn to the du Pont likelihood of confusion factor
focusing on the similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connotation and
Opposition No. 91189139
16
commercial impression. In re E.I. du Pont De Nemours & Co., 177
USPQ at 567.
To state the obvious, but for the addition of the definite
article “THE,” opposer’s mark THE DINNER DOCTOR is identical in
appearance and sound to applicant’s mark DINNER DOCTOR. As
previously stated by the Board in United States National Bank of
Oregon v. Midwest Savings and Loan Association, 194 USPQ 232,
236 (TTAB 1977):
The definite article ‘THE’ likewise adds little
distinguishing matter because the definite article most
generally serves as a means to refer to a particular
business entity or activity or division thereof, and it
would be a natural tendency of customers in referring to
opposer’s services under the mark in question to utilize
the article ‘THE’ in front of ‘U-BANK’ in view of their
uncertain memory or recollection of the many marks that
they encounter in their everyday excursion into the
marketplace.

Accord Jay-Zee, Inc. v. Hartfield-Zodys, Inc., 207 USPQ 269
(TTAB 1980) (“Since the psychological and marketing impact of
petitioner’s mark in its earlier version clearly was derived
from the word ‘IMAGE,’ the omission of the word ‘THE’ (the
definite article serving merely to emphasize ‘IMAGE’) from the
later version did not interrupt the continuity of use”). We
hasten to add that when asked to “[a]dmit that the terms DINNER
DOCTOR and THE DINNER DOCTOR are nearly identical in
Opposition No. 91189139
17
appearance,” applicant responded that it would “admit the
obvious similarity.”12
Moreover, as applied to opposer’s and applicant’s
respective goods and services, the connotation and commercial
impression are identical as well, namely that the food, recipe
and cooking tips emanate from a trusted authority. See
definition of “doctor” from www.merriam-webster.com as “a
learned or authoritative teacher.”13 We therefore conclude that
this first du Pont factor weighs in favor of finding a
likelihood of confusion.14

12 Response to Opposer’s Request for Admission No. 6, Opposer’s Notice of
Reliance.

13 The Board may take judicial notice of dictionary definitions, including
online dictionaries which exist in printed format. See In re
CyberFinancial.Net Inc., 65 USPQ2d 1789 (TTAB 2002). See also University
of Notre Dame du Lac v. J. C. Gourmet Foot Imports Co., Inc., 213 USPQ
594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).

14 Opposer has pleaded and argued that she owns a family of DOCTOR
marks for a series of recipe books and Internet content provider
services, including a registration for the mark THE CAKE MIX DOCTOR.
Opposer argues in her brief that because of the fame of the family of
DOCTOR marks, “consumer confusion is unavoidable.” Opposer’s Brief,
p. 14. The family of marks doctrine has applicability in those
situations where, prior to a defendant's first use of its challenged
mark containing a particular feature, the plaintiff had established a
family of marks characterized by that feature, so that the defendant's
subsequent use of its mark containing the feature for goods or
services which are similar or related to plaintiff's will cause the
relevant purchasing public to assume that the defendant's mark is yet
another member of plaintiff's family. See Blansett Pharmacal Co. Inc.
v. Carmick Laboratories Inc., 25 USPQ2d 1473, 1477 (TTAB 1992).
However, given our determination above that applicant’s DINNER DOCTOR
mark is essentially identical to opposer’s THE DINNER DOCTOR mark, it
is not necessary for us to consider what if any similarity exists
between applicant's mark and opposer's registered and used DOCTOR
formative marks in the record or the fame of such marks. Thus, we
Opposition No. 91189139
18
B. The Services, Trade Channels, and Consumers
We consider applicant’s services as they are described in
applicant’s involved application: “educational and
entertainment services, namely, a continuing program about food,
health and lifestyle accessible by radio, television, satellite,
audio, video and computer networks.” See Octocom Systems Inc.
v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d
1783, 1788. (Fed. Cir. 1990). Opposer presented no evidence
regarding the relatedness of her syndicated weekly newspaper
column and applicant’s identified services. Nonetheless, as
identified, the subject matter of applicant’s “continuing
program about food” offered, inter alia, by computer networks
encompasses and thus is legally identical to the subject matter
of opposer’s website content provision services in the field of
recipes and culinary tips, and as such, the services are closely
related.
Moreover, opposer’s website services are provided through
the same trade channel as applicant’s services –- the Internet
or “computer networks,” and since applicant’s recitation of
services is unrestricted as to classes of purchasers, we must
presume that opposer’s and applicant’s services are provided to
the same relevant purchasers. See id. See also Hewlett-Packard

have given these marks no further consideration and focus our analysis
of likelihood of confusion solely on opposer’s individual THE DINNER
DOCTOR mark.

Opposition No. 91189139
19
Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed.
Cir. 2002). Consequently, these du Pont factors heavily favor
finding a likelihood of confusion.
C. Actual Confusion
Lastly, opposer notes that she has received “several
complaints” of actual consumer confusion. Opposer’s Brief, p.
14; Opposer’s Testimony Deposition Transcript, p. 38. While the
evidence of actual confusion is minimal, it is consistent with a
finding of likelihood of confusion.
D. Balancing the Factors
Considering all of the evidence of record as it pertains to
the relevant du Pont factors, we conclude that the marks are
virtually identical, the services are highly related and pertain
to the same subject matter, and are marketed through the same
channels of trade to the same relevant consumers. Accordingly,
we find a likelihood of consumer confusion between opposer's
mark THE DINNER DOCTOR and applicant's mark, DINNER DOCTOR for
“educational and entertainment services, namely, a continuing
program about food, health and lifestyle accessible by radio,
television, satellite, audio, video and computer networks”
DECISION: The opposition is sustained.