Chef Sous LLCv.Heidi Webb, Inc.

Trademark Trial and Appeal Board

Oct 26, 2016

No. 91215638 (T.T.A.B. Oct. 26, 2016)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 26, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Chef Sous LLC
v.
Heidi Webb, Inc.
________

Opposition No. 91215638
_______

Charles M. Allen and Marth A. Weis of Goodman Allen Donnelly PLLC,
for Chef Sous LLC.

Nancy R. Frandsen and Lesley M. Grossberg of Baker & Hostetler LLP,
for Heidi Webb, Inc.
_____

Before Zervas, Ritchie and Kuczma,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Heidi Webb Inc. (“Applicant”) seeks to register the mark NOT SO SIMPLE
SYRUP in standard characters for “syrups for making beverages; non-alcoholic drink
and cocktail mixes” in International Class 32.1

1 Application Serial No. 85915409, filed April 26, 2013, based on an assertion of a bona fide
intent to use the mark in commerce under Trademark Act Section 1(b), 15 U.S.C. § 1051(b).
The application includes a disclaimer of SYRUP.
Opposition No. 91215638
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Chef Sous LLC (“Opposer”) opposes registration of Applicant’s mark on the
ground of likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C.
§ 1052(d), with its previously registered mark K.I.S.S. SIMPLE SYRUP KEEP IT
SIMPLE SYRUP and Design (Registration No. 4178435, “the ‘435 registration”) in
the following form

for “Flavoring syrup; Table syrup; Topping syrup” in International Class 30 and
“Syrup for making lemonade; Syrups for beverages; Syrups for making beverages” in
International Class 32. Opposer disclaimed the term SIMPLE SYRUP.2
Opposer also asserted in the notice of opposition Registration No. 3628573 (“the
‘573 registration”) for the mark KEEP IT SIMPLE SYRUP in standard characters,
for “Flavoring syrup; Table syrup; Topping syrup” in International Class 30 and
“Syrup for making lemonade; Syrups for beverages; Syrups for making beverages” in
International Class 32. The Office cancelled this registration on January 1, 2016 for

2 The description of the mark in the registration record states:
The mark consists of a white background that has pink dots
interspersed with the letters “k”, “i”, “s”, “s”, and the words
“simple syrup” in pink lower case block lettering encircling the
image of pink lips in a kiss, which all appears in the upper left-
hand corner of and overlapping the words “keep it” in black
lower case block letters above the word simple in black lower
case block letters above the word syrup in black lower case
cursive letters.
Opposition No. 91215638
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failure to file a Section 8 declaration. We therefore give this registration no further
consideration.3
Applicant, in its answer, denied the salient allegations of the notice of opposition.
The Record
In addition to Applicant’s opposed application which is automatically of record
pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), the evidence of record
consists of the following:
A. Testimony
Transcript of Susan Martinson, Opposer’s owner, filed October 23, 2015, including
Exhibits 1 – 43.
B. Opposer’s Notices of Reliance
First and second notices of reliance, both filed September 30, 2015, and third
notice of reliance, filed April 22, 2016, including the following exhibits submitted
therewith:
● Applicant’s Response to Opposer’s first set of
interrogatories;4
● Documents produced by Applicant in response to
Opposer’s Interrogatory No. 19;5

3 See discussion infra, regarding common law rights in the mark KEEP IT SIMPLE SYRUP.
4 Opposer states in its notice of reliance that it relies only on Applicant’s answers to
Interrogatory Nos. 5, 7, 8, 12, 19, 20, 21, 25 and 27. Opposer, however, introduced Applicant’s
answers to all of Opposer’s interrogatories located in its first set of interrogatories, not just
the ones listed in the actual notice of reliance. We consider all of these interrogatory answers,
not only the ones listed in the notice of reliance.
5 Documents provided as all or part of an answer to an interrogatory under Fed. R. Civ. P. 33
may be made of record, as an interrogatory answer, by notice of reliance filed in accordance
with 37 CFR § 2.120(j)(3)(i) and 37 CFR § 2.120(j)(5). See TBMP § 704.10 and 704.11.
Opposition No. 91215638
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● Papers from the prosecution file of the ‘573 registration
for KEEP IT SIMPLE SYRUP;
● Papers from the prosecution file of the ‘435 registration
for KEEP IT SIMPLE SYRUP;
● TESS record for the ‘435 registration showing status and
title in Opposer; and
● Papers from the prosecution file for Opposer’s
Application Ser. No. 86907803 filed February 15, 2016,
after Applicant filed its application, for the standard
character mark KEEP IT SIMPLE SYRUP (the ‘803
Application).
C. Applicant’s Notice of Reliance
Applicant submitted:
● File histories for Applicant’s involved application and the
‘573 and ‘435 registrations;
● Applicant’s Answers to Opposer’s First Set of
Interrogatories No. 13 and 26, submitted pursuant to
Trademark Rule 2.120(j)(5), 37 C.F.R. § 2.120(j)(5);
● Opposer’s Answers to Applicant’s First Set of
Interrogatories;
● Webpage printouts; and
● Printout of the USPTO’s TARR record for Reg.
No. 2108390 for SIMPLY SIMPLE SYRUP.
Standing and Priority
Standing is a threshold issue that must be proven by a plaintiff in every inter
partes case. To establish standing in an opposition or cancellation proceeding, a
plaintiff must show “both a ‘real interest’ in the proceedings as well as a ‘reasonable
basis’ for its belief of damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753
F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014) (quoting ShutEmDown Sports,
Inc., v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012)); Ritchie v. Simpson, 170 F.3d
Opposition No. 91215638
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1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
Applicant states at p. 8 of its brief:
Although Applicant agrees with Opposer that because the
‘573 registration for the word mark KEEP IT SIMPLE
SYRUP has been cancelled, Opposer must rely on its
common-law rights in that mark … Applicant does not
contest that Opposer has standing and priority to assert
either the KEEP IT SIMPLE SYRUP word mark or the
design mark shown in the subsisting ‘435 registration.
Thus, likelihood of confusion is the sole issue requiring
resolution by the Board.6
Applicant’s statements are significant in four respects.
First, Applicant concedes Opposer’s standing to bring this opposition; indeed,
Opposer has established its standing through its submission of a copy of its pleaded
registration for the K.I.S.S. SIMPLE SYRUP KEEP IT SIMPLE SYRUP and design
mark, which shows that it is valid and subsisting, and owned by Opposer. See, e.g.,
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000) (party’s ownership of pleaded registration establishes standing).
Second, Applicant concedes Opposer’s priority in the registered mark. We note,
though, that because Opposer’s pleaded registration is of record, and because
Applicant has not filed a counterclaim to cancel Opposer’s pleaded registration,
priority is not an issue with respect to the goods covered by Opposer’s extant, pleaded
registration. Penguin Books Ltd. v. Eberhard, 48 USPQ2d 1280, 1286 (TTAB 1998)

6 33 TTABVUE 14.
Opposition No. 91215638
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(citing King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108,
110 (CCPA 1974)).
Third, and perhaps most significantly, Applicant concedes that Opposer’s
unpleaded common law mark KEEP IT SIMPLE SYRUP is in issue in this
proceeding. An unpleaded claim may be tried by the consent of the parties. Fed. R.
Civ. P. 15(b)(2). See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (“TBMP”) § 314 (2016). In light of Applicant’s concession of the claim
based on common law rights, we find that the issue of likelihood of confusion based
on the common law mark KEEP IT SIMPLE SYRUP was tried by the consent of the
parties.
Fourth, Applicant concedes that Opposer has priority of use of the common law
mark. Ms. Martinson testified that Opposer used its common law mark for simple
syrup in March 2009, which is before the filing date of Applicant’s involved
application.7 “Simple syrup” is defined as “a thick, sweet liquid, usually prepared
from water and sugar and used chiefly as a base for soda fountain flavors.”8
Likelihood of Confusion
This proceeding involves two of Opposer’s marks, its registered word and design
mark and its common law word mark. We need only consider Opposer’s mark which
is closest to Applicant’s mark, Opposer’s common law mark KEEP IT SYMPLE

7 Martinson Test. at 7, 21 TTABVUE 8. Applicant response to Opposer’s Interrog. No. 12
states that it first used its mark in October 2013, which is after the April 26, 2013 filing date
of its application.
8 Dictionary.com definition based on the Random House Dictionary (2015) of “simple syrup,”
Exh. F, Applicant’s notice of reliance, 22 TTABVUE 230-62.
Opposition No. 91215638
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SYRUP. If there is no likelihood of confusion between this mark and Applicant’s
mark, there will be no likelihood of confusion between Opposer’s registered mark
(which includes additional wording and a design element) and Applicant’s mark.
Our determination under Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). See also, In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201 (Fed. Cir. 2003). In considering the evidence of record on these factors, we 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 and differences in the
marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ
24, 29 (CCPA 1976).
Similarity of goods, trade channels and classes
of purchasers, and consumer sophistication and
care in purchasing.

Ms. Martinson, Opposer’s owner, has characterized Opposer’s goods sold in
connection with the KEEP IT SIMPLE SYRUP mark as “simple syrup,”9 and
Applicant’s identification of goods is “syrups for making beverages; non-alcoholic
drink and cocktail mixes.” Inasmuch as Applicant’s identification encompasses
simple syrups, Applicant’s goods are identical in part with Opposer’s simple syrups.
Ms. Martinson has identified Opposer’s trade channels as follows:
A. As far as the types of marketing, I’ve done extensive
online promotion, as well as in-person promotion, and I’ve
leveraged the media to the best of my abilities. It’s a very

9 Martinson Test. at 7, 21 TTABVUE 8.
Opposition No. 91215638
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economical approach, leveraging the media, so I’ve been
able to get my product into the news print media, I’ve been
on television, the local … CBS and NBC affiliates, and I’ve
done trade shows, promotional trade shows for both trade
audiences and consumer audiences.
Q. Do you use the Internet for marketing?
A. Yes.
Q. And what media on the Internet do you use?
A. Well, my own media use is I’ve got a Facebook site, Keep
It Simple Syrup, I’ve got a Twitter account, a Pinterest
account, an Instagram account. There are several -- the
YouTube channel as well. There are videos of the television
appearances that I’ve made. 10
Opposer’s goods can be found in the Virginia Alcoholic Beverage Control chain of
state-run stores; and Opposer has participated in The Nightclub and Bar Trade Show
in Las Vegas, Nevada.11
Because Applicant’s identification of goods is not restricted to any particular trade
channels or purchasers, Applicant’s trade channels encompass Opposer’s trade
channels.
As for classes of purchasers, both Opposer’s and Applicant’s purchasers comprise
members of the general public.12

10 Martinson Test. at 10 – 11, 21 TTABVUE 11 – 12.
11 Martinson Test. at 24 and 33, 21 TTABVUE 25 and 34.
12 Ms. Martinson testified, “I would say my target market more than any other is the home
cocktail maker, the non-professional bartender/mixologist, who is seeking to make high–
quality cocktails at home.” Martinson Test. at 9, 21 TTABVUE 10.
Opposition No. 91215638
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Further, simple syrups are relatively inexpensive, with Opposer’s syrups selling
for as little as $10 per 375 milliliter bottle.13 There is no claim that purchasers are
sophisticated. We therefore find that the goods are subject to impulse purchases.
Absence of Actual Confusion
The parties do not dispute that there have been no instances of actual confusion.
The absence of any reported instances of confusion, however, is meaningful only if
the record indicates appreciable and continuous use by the parties of their marks for
a significant period of time in the same markets. Citigroup Inc. v. Capital City Bank
Group, Inc., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98 USPQ2d
1253 (Fed. Cir. 2011); Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774
(TTAB 1992). In other words, for the absence of actual confusion to be probative, there
must have been a reasonable opportunity for confusion to have occurred. Barbara’s
Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the probative value
of the absence of actual confusion depends upon there being a significant opportunity
for actual confusion to have occurred); Red Carpet Corp. v. Johnstown American
Enterprises Inc., 7 USPQ2d 1404, 1406-1407 (TTAB 1988); Central Soya Co., Inc. v.
North American Plant Breeders, 212 USPQ 37, 48 (TTAB 1981) (“the absence of actual
confusion over a reasonable period of time might well suggest that the likelihood of
confusion is only a remote possibility with little probability of occurring”). The parties
have coexisted only since 2013, a short period of time. Further, neither party has

13 Martinson Test. at 23, 21 TTABVUE 24.
Opposition No. 91215638
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shown significant sales during this time period. The du Pont factor concerning the
absence of actual confusion is therefore neutral in our analysis.
Fame/strength of Opposer’s mark.
Opposer maintains that its mark is “is suggestive in that it suggests that making
complex mixed drinks will be facilitated by the product”; and that it is “famous in the
beverage industry.”14 It suffices to say that we agree with Opposer that its mark is
suggestive, but disagree with its contention that its mark is famous. It has been in
use for a limited period, and its sales and advertising figures are moderate. It appears
that Ms. Martinson is the only individual running Opposer’s business.15 We therefore
accord Opposer’s mark the typical scope of protection to be accorded a suggestive
mark.
Similarity of the marks.
We next consider the marks in their entireties as to appearance, sound,
connotation and commercial impression, to determine the similarity or dissimilarity
between them. In re Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)
(quoting du Pont); Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). In comparing the

14 Applicant’s brief at 21, 32 TTABVUE 28.
15 Ms. Martinson testified at p. 6 of her testimony deposition, 21 TTABVUE 7:
Q. And since June of 2008, have you been engaged in
advertising, marketing and selling products for Chef Sous?
A. Yes, quite heavily.

Q. And has anyone else been engaged in that project?

A. No. I’ve been running the endeavor myself.
Opposition No. 91215638
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marks, we are mindful that where, as here, the goods are identical in part, the degree
of similarity necessary to find likelihood of confusion need not be as great as where
there is a recognizable disparity between the goods. Coach Servs. Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992); see also, In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257,
1260 (Fed. Cir. 2010). “The proper test is not a side-by-side comparison of the marks,
but instead ‘whether the marks are sufficiently similar in terms of their commercial
impression’ such that persons who encounter the marks would be likely to assume a
connection between the parties.” Coach Servs, 101 USPQ2d at 1721 (citing Leading
Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d 1901, 1905 (TTAB 2007)).
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, the analysis cannot be predicated on dissecting the marks
into their various components. In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985). However, different features may be analyzed to determine
whether the marks are similar. Id. (nothing improper in giving more or less weight
to a particular feature of a mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties). The average purchaser normally
retains a general rather than a specific impression of trademarks. See Inter IKEA
Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); L’Oreal S.A. v. Marcon,
102 USPQ2d 1434, 1438 (TTAB 2012).
Opposer’s common law mark is KEEP IT SIMPLE SYRUP and Applicant’s
standard character mark is NOT SO SIMPLE SYRUP. Turning first to the meaning
Opposition No. 91215638
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of these two marks, Applicant, in relevant part, states that NOT SO SIMPLE SYRUP
“connotes complexity, or the absence of simplicity,” while “[t]he phrase KEEP IT
SIMPLE SYRUP connotes a premium on simplicity, or ‘avoiding complication,’ and
evokes ‘the familiar expression, Keep It Simple, Stupid’ (aka ‘KISS’).”16 Indeed,
Opposer answered Applicant’s Interrogatory No. 2 as follows:
The suggestion of using the expression “Keep It Simple
Syrup” came about during a conversation Ms. Martinson
had with Stan and Nicole Schermerhorn of Lavender Fields
Farm in Glen Allen, VA during late June 2008 about how
to potentially commercialize an all-natural, herb-infused
simple syrup. The theme of the conversation was avoiding
complication. The idea for naming the product “Keep It
Simple Syrup” was raised as a parody of the familiar
expression, “Keep It Simple Stupid” (aka “KISS”).
Following the conversation, Ms. Martinson searched the
USPTO trademark database and subsequently filed an
application for “Keep It Simple Syrup” on June 26, 2008.17
Opposer, however, maintains that:
In consideration of the purpose for which the products are
principally offered, (i.e., to easily make complex mixed
drinks at home) the connotation of each is similar, that is,
the products are offered as tools to simplify a complicated
task. Thus, KEEP IT SIMPLE SYRUP connotes making
the task easy by using the product and NOT SO SIMPLE
SYRUP connotes that the product is sufficient for the
preparation of complex drinks. Even if a consumer
concludes that the simplicity/non-simplicity suggested by
the competing marks refers directly to the product,
confusion is still likely because a consumer might
reasonably conclude that one product is simply a higher

16 Applicant’s brief at 10, 33 TTABVUE 16, citing to 22 TTABVUE 211, Opposer’s Response
to Applicant’s Interrogatory No. 2.
17 Applicant’s notice of reliance, Exh. E, 22 TTABVUE 208.
Opposition No. 91215638
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end version of the other, but both are from the same
source.18
We agree with Applicant’s interpretation of the marks, and that the two marks
are antithetical in meaning. This is particularly true when Opposer encourages the
consuming public to think of “keep it simple stupid” through its use of the term KISS,
which appears throughout its webpages, labels and advertisements, in connection
with its common law mark.19 As for Opposer’s contention that a “consumer might
reasonably conclude that one product is simply a higher end version of the other,”
neither party introduced evidence on this point.
We would be remiss to not comment on the fact that the term SIMPLE SYRUP
appears in both marks, and, as discussed earlier in this decision, the term has a
particular defined meaning relevant to the parties’ goods. Applicant introduced
evidence that various webpages for syrup products use the term SIMPLE SYRUP, 20
and the Examining Attorney asked for and obtained from Applicant a disclaimer of
SIMPLE SYRUP on the ground that SIMPLE SYRUP is descriptive.21 Even if
SIMPLE SYRUP is descriptive, and possibly generic, the mark must be considered as
a whole.22 And, when SIMPLE SYRUP is considered in Applicant’s and Opposer’s
marks, the marks take on very different meanings. Thus, despite the inclusion of

18 Opposer’s brief at 17, 32 TTABVUE 24.
19 See, e.g., 21 TTABVUE 99, printout from Opposer’s website (“[T]his unique product,
appropriately named ‘Keep It Simple Syrup®” (aka ‘KISS’®)….Introducing KISS…”).
20 See Exhs. G – O to Applicant’s notice of reliance, 22 TTABVUE 230-61.
21 22 TTABVUE 74.
22 Opposer agrees with this contention, stating at page 18 of its brief, “But even if the term is
generic and disclaimed, the mark must still be considered in its entirety and the Board may
not ignore the presence or position of this term in competing marks.” 32 TTABVUE 19.
Opposition No. 91215638
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SIMPLE SYRUP in the respective marks, when considered as a whole, the marks
have different meanings and hence different commercial impressions. The differences
in meaning and commercial impression of the marks outweigh any similarities in
appearance or sound of the marks, including the “identical meter” noted by Opposer.
The parties both discuss Midwestern Pet Foods, Inc. v. Societe des Produits Nestle
S.A., 685 F.3d 1046, 103 USPQ2d 1435 (Fed. Cir. 2012) involving the marks
“WAGGIN STRIPS” for pet treats and “BEGGIN’ STRIPS” for the same goods. There,
the court did not agree with the applicant’s “attempts to distinguish the WAGGIN’
STRIPS and BEGGIN’ STRIPS marks by parsing their appearance, meaning, sound
and impression.” Id. at 1440. The court remarked:
[T]he two marks have the same format, structure, and
syntax. Both consist of two words. The second word in each
mark is identical. The first word in each mark ends with
GGIN’, the IN’ being the informal — IN’ suffix of the
present participle form of the verb. While the two verbs are
different, the verb in both marks consists of a single
syllable, and the marks have generally similar
pronunciations, cadences, and intonations. Beyond that,
the verbs “wag” and “beg” both suggest dog behavior, and
in particular both convey the excitement exhibited by dogs
during feeding. Although the Board acknowledged that the
mark BEGGIN’ STRIPS also suggests “bacon strips” to
some consumers, the Board reasonably concluded that the
implicit reference to “bacon” did not detract from the
similarity of the two marks in both sound and meaning.
Id. The court’s decision was not limited to consideration of the format, structure and
syntax of the marks, as Opposer would have us believe. Rather, the court also
considered that “the verbs ‘wag’ and ‘beg’ both suggest dog behavior, and in particular
both convey the excitement exhibited by dogs during feeding.” Id. Thus, Midwestern
Opposition No. 91215638
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Pet Foods is not persuasive of Opposer’s position regarding the similarity of the marks
factor.
Balancing the Factors
Having accorded due weight to the du Pont factors found in Opposer’s favor, we
find that the marks’ dissimilarities are dispositive of a finding of no likelihood of
confusion. That is, the dissimilarity in the meaning and commercial impressions
conveyed by the marks outweighs our findings in favor of Opposer with respect to the
other relevant du Pont factors. That one du Pont factor may be dispositive in a
likelihood of confusion analysis is established, “especially when that single factor is
the dissimilarity of the marks.” Champagne Louis Roederer S.A. v. Delicato
Vineyards, 148 F.3d 1373, 47 USPQ2d 1459, 1460 (Fed. Cir. 1998) (no likelihood of
confusion between “Crystal Creek” mark for wine and “Cristal” marks for
champagne). See also Odom’s Tennessee Pride Sausage, Inc. v. FF Acq., L.L.C., 600
F.3d 1343, 93 USPQ2d 2030, 2032 (Fed. Cir. 2010) (Board did not err in basing its
decision on the dissimilarity of the marks alone; “the visual distinctions between [the
parties’ differing ‘farm boy’ design trademarks] create unquestionably different
commercial impressions”); Kellogg Co. v. Pack-Em Enters., Inc., 951 F.2d 330, 21
USPQ2d 1142, 1145 (Fed.Cir.1991) (“We know of no reason why, in a particular case,
a single du Pont factor may not be dispositive. … ‘each [of the thirteen elements] may
from case to case play a dominant role.’”).
Decision: The opposition is dismissed.