Hyundai Motor Company

Trademark Trial and Appeal BoardApr 14, 2021

79254538 (T.T.A.B. Apr. 14, 2021)

This Opinion is not a Precedent of the TTAB Mailed: April 14, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Hyundai Motor Company _____ Serial No. 79254538 _____ Alexander S. Lazouski of Lazouski IP LLC, for Hyundai Motor Company. Christina M. Riepel, Trademark Examining Attorney, Law Office 124, Lydia Belzer, Managing Attorney. _____ Before Wolfson, Goodman and Coggins, Administrative Trademark Judges. Opinion by Goodman, Administrative Trademark Judge: Hyundai Motor Company (“Applicant”) seeks registration on the Principal Register of the mark GENESIS HOUSE (in standard characters, “house” disclaimed) for Canteen services; snack-bar services; restaurant services; cafe services; buffet restaurants; self-service restaurant services; food and drink catering; teahouse services; bakery services for the provision of food; coffee shop services; restaurant and hotel services; street stall services in the nature of mobile restaurant services; kids play cafe services, namely, provision of food and drink for child care centers; providing food and drink catering services for Serial No. 79254538 - 2 - sports events, concerts, conventions and exhibitions; restaurant services provided by franchised restaurants; serving of tea, coffee, cocoa, carbonated drinks or fruit juice beverages; providing general purpose facilities, namely, rental of rooms for holding social functions, conferences, conventions, exhibitions, seminars and meetings; hotel services; hotel services; provision of conference, exhibition and meeting facilities; providing travel lodging information services and travel lodging booking agency services for travelers in International Class 43.1 The Trademark Examining Attorney refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of likelihood of confusion with the following registered marks owned by the same entity: GENESIS STEAKHOUSE & WINE BAR (standard characters, “steakhouse & wine bar” disclaimed) for “Hotel, bar and restaurant services” in International Class 43,2 and (“steakhouse and winebar” disclaimed) for 1 Application Serial No. 79254538 was filed December 10, 2018 under Section 66(a) of the Trademark Act, 15 U.S.C. § 1141f(a), requesting extension of protection based on International Registration No. 1456115 and claiming a priority date of November 8, 2018. During prosecution the application was subject to a request to divide. July 21, 2020 Office Action, notice of completion of request to divide. This is the parent application. Page references to the application record refer to the online database pages of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs on appeal refer to the Board’s TTABVUE docket system. 2 Registration No. 5309010 issued October 17, 2017. Serial No. 79254538 - 3 - Hotel, bar and restaurant services; Restaurant; Restaurant and bar services; Restaurant and bar services, including restaurant carryout services; Restaurant and café services; Restaurant and catering services; Restaurant and hotel services; Restaurant reservation services; Restaurant services; Restaurant services featuring sandwiches; Restaurant services featuring steakhouse, American, fish, kosher and Mediterranean food; Restaurant, bar and catering services; Restaurants; Restaurants featuring home delivery; Salad bars; Take-out restaurant services in International Class 43.3 When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. We affirm the refusal to register. I. Evidentiary Issue Before proceeding to the merits of the refusal, we address an evidentiary matter. Applicant attached “additional evidence” to its brief in support of its argument that two particular third-party restaurants were “open and active as of the date of this Appeal.” 6 TTABVUE 11. After an appeal is filed, if either the applicant or examining attorney desires to introduce additional evidence, the applicant or examining attorney may request the Board to suspend the appeal and remand the application for further examination. See Trademark Rule 2.142(d). Because Applicant did not file a request for remand to 3 Registration No. 5337814 issued November 21, 2017. In the registration Registrant claims the colors black, white, green and gray as a feature of the mark and provides the following description of the mark: “The mark consists of the following: a dark green tree over a lighter green background surrounded by a gray border, with the tree extending past the gray border on the left. Across the bottom of the design is the stylized wording ‘GENESIS’ in black and ‘STEAKHOUSE AND WINE BAR’ in white.” Serial No. 79254538 - 4 - introduce additional evidence, the new evidence included in and attached to its brief is not timely. See Trademark Rule 2.142(d). Therefore, this new evidence will be given no consideration. Applicant also unnecessarily attached to its brief evidence that is duplicative of exhibits previously submitted with Applicant’s Request for Reconsideration. In re Thor Tech Inc., 85 USPQ2d 1474, 1475 n.3 (TTAB 2007) (attaching evidence from record to briefs is duplicative and unnecessary). Accordingly, we will make our determination based on the exhibits that are already part of the record on appeal. II. Likelihood of Confusion 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. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). We consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In every Section 2(d) case, two key factors are the similarity or dissimilarity of the marks and the goods or services. Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by Serial No. 79254538 - 5 - § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). A. Relatedness of the Services, Channels of Trade and Classes of Consumers We first consider the second and third DuPont factors, “[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration” and “the similarity or dissimilarity of established, likely-to-continue trade channels.” In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 567). Our analysis under these factors is based on the identifications of services in the application and the cited registration. Id.; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-63 (Fed. Cir. 2014). “It is sufficient for finding a likelihood of confusion if relatedness is established for any item encompassed by the identification of goods [or services] within a particular class in the application.” In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)). Applicant’s services are Canteen services; snack-bar services; restaurant services; cafe services; buffet restaurants; self-service restaurant services; food and drink catering; teahouse services; bakery services for the provision of food; coffee shop services; restaurant and hotel services; street stall services in the nature of mobile restaurant services; kids play cafe services, namely, provision of food and drink for child care centers; providing food and drink catering services for sports events, concerts, conventions and exhibitions; Serial No. 79254538 - 6 - restaurant services provided by franchised restaurants; serving of tea, coffee, cocoa, carbonated drinks or fruit juice beverages; providing general purpose facilities, namely, rental of rooms for holding social functions, conferences, conventions, exhibitions, seminars and meetings; hotel services; hotel services; provision of conference, exhibition and meeting facilities; providing travel lodging information services and travel lodging booking agency services for travelers. The services in Registration No. 5309010 are “Hotel, bar and restaurant services.” The services in Registration No. 5337814 are Hotel, bar and restaurant services; Restaurant; Restaurant and bar services; Restaurant and bar services, including restaurant carryout services; Restaurant and café services; Restaurant and catering services; Restaurant and hotel services; Restaurant reservation services; Restaurant services; Restaurant services featuring sandwiches; Restaurant services featuring steakhouse, American, fish, kosher and Mediterranean food; Restaurant, bar and catering services; Restaurants; Restaurants featuring home delivery; Salad bars; Take-out restaurant services. The “restaurant services” in Applicant’s application and both cited registrations are identical, and therefore, Applicant’s and Registrant’s services are identical in part. Because these services are identical, we must presume that the channels of trade and classes of purchasers for these services are the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion). In addition, because the recitation of services in both Applicant’s application and Registrant’s registrations include “restaurant services” per se, without limitation or restriction, we must presume that they are rendered in the same types of restaurants Serial No. 79254538 - 7 - to the same ordinary consumers. In re Inn at St. John’s, 126 USPQ2d 1742, 1747 (TTAB 2018), aff’d 777 F. App’x. 516 (Fed. Cir. 2019) (“Because the services at issue are ‘restaurant and bar services,’ the average customer is an ordinary consumer.”). The second and third DuPont factors weigh heavily in favor of a finding of likelihood of confusion. B. Strength or Weakness of the word GENESIS4 The sixth DuPont factor requires us to consider the number and nature of similar marks in use on similar services. DuPont, 177 USPQ at 567. This evidence is relevant to a mark’s commercial strength or weakness. In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). If a mark, or an element of a mark, is used extensively in commerce by a number of third parties, the commercial strength of the mark can be undermined, as the consuming public may have become familiar with a multiplicity of the same or similar marks, and can distinguish them based on minor differences. Juice Generation, 115 USPQ2d at 1674; Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015). 4 During prosecution, Applicant submitted Class 35 and Class 41 third-party registration evidence as to the term GENESIS, but these unrelated classes of services were divided out into a child application and do not factor into our analysis of the Class 43 restaurant services. See Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1693-94 (Fed. Cir. 2018) (the controlling inquiry under the sixth DuPont factor is the extent of third-party marks in use on “similar” goods or services); In re Inn at St. John’s, 126 USPQ2d at 1745 (unrelated third-party registrations of little or no probative value). Serial No. 79254538 - 8 - Applicant argues that the coexistence of “many restaurants incorporating ‘GENESIS’ or its variations demonstrates that the field of such marks is so crowded, … [that the term] is therefore entitled to only a narrow scope of protection for services of the type covered by the cited registration.” 6 TTABVUE 13. To support this argument, Applicant submitted Internet evidence from third-party restaurant websites (and related websites such as Tripadvisor, Yelp, and Facebook), showing thirteen unrelated third-party restaurants in the United States use GENESIS in their names as follows: Genesis5 Genesis6 Genesis 17 Genesis Le Bleu Waters Restaurant8 Genesis Family Restaurant9 Genesis Restorante10 Genesis Cafe11 5 Jamaica, NY (yelp.com) June 18, 2020 Request for Reconsideration at TSDR 16-28. 6 Houston, TX (restauranttj.com) June 18, 2020 Request for Reconsideration at TSDR 43-47. 7 Jamaica, NY (genesis1restaurant.com) June 18, 2020 Request for Reconsideration at TSDR 13. 8 Ravenel, SC (genesisbleuwatersrestaurant.com) June 18, 2020 Request for Reconsideration at TSDR 14-15. 9 Milwaukee, WI (tripadvisor.com) June 18, 2020 Request for Reconsideration at TSDR 29- 33. 10 Easton, MD (facebook.com) June 18, 2020 Request for Reconsideration at TSDR 34-35. 11 Gatesville, SC (facebook.com) June 18, 2020 Request for Reconsideration at TSDR 48-49. Serial No. 79254538 - 9 - Genesis Taqueria12 Genesis Restaurant13 Genesis Pizza14 Churrasqueria Genesis15 Bro Robinson Genesis Soul Food Restaurant and Catering16 Genesis Health Care System/Genesis HealthPlex offering dining options: Garden Café, Lobby Bistro, and Jazzman’s Café17 As most of these uses are structured similarly to Registrant’s and Applicant’s marks (GENESIS as the only term or as a lead term and followed by a descriptive or generic term), we find this evidence somewhat probative of commercial weakness, although collectively, these thirteen third-party uses represent a more modest showing than that found probative in Jack Wolfskin and Juice Generation. Compare Juice Generation, 115 USPQ2d at 1674 (substantial number of third-party marks used in connection with restaurant services or food products incorporating the three- word phrase “peace and love” followed by a product identifying term found probative of weakness) with In re FabFitFun, 127 USPQ2d 1670, 1674 (TTAB 2018) (finding 10 12 Zapta, TX (facebook.com) June 18, 2020 at TSDR 62-63. 13 Uniondale, NY (screenshot-google.com) June 18, 2020 Request for Reconsideration at TSDR 64. 14 Flushing, NY (screenshot-google.com) June 18, 2020 Request for Reconsideration at TSDR 65-68. 15 Freeport, NY (churrasqueriagenesis.com) June 18, 2020 Request for Reconsideration at TSDR 36-42. 16 Hempstead, New York (facebook.com) June 18, 2020 Request for Reconsideration at TSDR 53-61. 17 Zanesville, Ohio (genesishcs.org) June 18, 2020 Request for Reconsideration at TSDR 50- 52. Serial No. 79254538 - 10 - uses of SMOKIN’ HOT “reflects a more modest amount of [third-party use] evidence than that found convincing in Jack Wolfskin and Juice Generation wherein ‘a considerable number of third parties’ use [of] similar marks was shown.’”) (citations omitted). See also Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033-37 (TTAB 2016) (at least 85 uses of rose-formative marks for senior living communities and related services and eight registrations were in the record evidencing weakness); In re Broadway Chicken Inc., 38 USPQ2d 1559, 1565- 66 (TTAB 1996) (“Broadway” is weak for restaurant services based on evidence that hundreds of restaurants and eating establishments use Broadway as a trademark or trade name). Nonetheless, as in FabFitFun, where ten third-party uses were probative to show consumer exposure, supporting the Board’s finding that the common term SMOKIN’ HOT was “somewhat weak,” the third-party use evidence in this case shows that the term GENESIS, as used in association with restaurant services, has some commercial weakness. See In re FabFitFun, 127 USPQ2d at 1675. We are reminded, however, that we weigh any weakness of the term GENESIS into our analysis involving the similarity of the marks and ultimately into our conclusion whether there is likelihood of confusion. Moreover, we note that even weak marks are entitled to protection against registration of similar marks for identical services. See In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010); see also King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974) (“Confusion is Serial No. 79254538 - 11 - confusion. The likelihood thereof is to be avoided, as much between ‘weak’ marks as between ‘strong’ marks, or as between a ‘weak’ and a ‘strong’ mark.”). This DuPont factor weighs slightly against a finding of likelihood of confusion. C. Similarity of the Marks We turn next to the first DuPont factor, which requires us to determine the similarity or dissimilarity of the marks when viewed in their entireties in terms of appearance, sound, connotation and overall commercial impression. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). The test under the first DuPont factor is not whether the marks can be distinguished when subjected to a side-by-side comparison, but 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. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018). The proper focus is on the recollection of the average customer, who retains a general rather than specific impression of the marks. In re St. Julian Wine Co., 2020 USPQ2d 10595, *4 (TTAB 2020). Consumers may not necessarily encounter the marks in close proximity and must rely upon their recollections thereof over time. In re Mucky Duck Mustard, 6 USPQ2d 1467, 1468 (TTAB 1988). As previously noted, the average consumer of Applicant’s and Registrant’s services is an ordinary consumer. As indicated, in analyzing the similarity of the marks, we must consider them in their entireties. However, it is nevertheless appropriate, for rational reasons, to Serial No. 79254538 - 12 - regard certain features of the marks as being more dominant or otherwise significant, and therefore to give those features greater weight. Stone Lion Capital Partners, 110 USPQ2d at 1161; In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Descriptive or generic terms in a mark are often less significant in creating the mark’s commercial impression and generally given less weight. See In re Nat’l Data Corp., 224 USPQ at 751 (“a descriptive component of a mark may be given little weight in reaching a conclusion on likelihood of confusion”); In re Code Consultants Inc., 60 USPQ2d 1699, 1702 (TTAB 2001). In the case of marks which consist of words and a design, the words are generally accorded greater weight because they would be used by purchasers to request the goods or services. See In re Viterra Inc., 101 USPQ2d at 1908 (“In the case of a composite mark containing both words and a design, ‘the verbal portion of the mark is the one most likely to indicate the origin of the goods to which it is affixed.”’) (quoting CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983). “The verbal portion of a word and design mark ‘likely will appear alone when used in text and will be spoken when requested by consumers.”’ In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (quoting Viterra, 101 USPQ2d at 1911). This “principle is especially important in cases involving restaurant services in view of the propensity of persons to try restaurants based on word-of-mouth recommendations.” In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987). “[R]estaurants are often recommended by word of mouth and referred to orally, [so] it is the word portion of applicant’s mark Serial No. 79254538 - 13 - which is more likely to be impressed on the consumer’s memory.” In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997) (quoting Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 395 (Fed. Cir. 1983)). Finally, we keep in mind that “[w]hen marks would appear on virtually identical goods [or services] . . ., as is the case here, the degree of similarity necessary to support a conclusion of likely confusion declines.” In re Max Capital Grp. Ltd., 93 USPQ2d at 1248 (citing Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992)); In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010). Applicant’s mark is GENESIS HOUSE. The mark in Registration No. 5309010 is GENESIS STEAKHOUSE & WINE BAR and the mark in Registration No. 5337814 is . Applicant argues that the standard character marks GENESIS HOUSE and GENESIS STEAKHOUSE & WINE BAR as a whole “look [and] sound different” and “create distinctly different commercial impressions.” 6 TTABVUE 8. Applicant contends that the Examining Attorney “inappropriately changed the cited marks” by ignoring the disclaimed matter in analyzing the marks. Id. We find the standard character marks are somewhat similar in sound and appearance due to their structure in that each mark contains as the first term the word GENESIS followed by the descriptive word or words, HOUSE or Serial No. 79254538 - 14 - STEAKHOUSE & WINE BAR, that have been disclaimed. Further, both marks contain the word “house” – in Applicant’s mark as the second word, and in the cited mark within the second word “steakhouse.” Each mark is clearly dominated by the identical term, GENESIS, given the highly descriptive, if not generic nature of the disclaimed secondary words in the respective marks.18 Moreover, the term GENESIS is the first term in each mark; this term is the part of each mark that is most likely to be impressed upon the mind of a purchaser and will be remembered and used when calling for the services. See Presto Prods., Inc. v. Nice-Pak Pros., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). GENESIS is an arbitrary term as used in connection with restaurant services and is inherently distinctive. See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 54 USPQ2d 1065, 1068 (2000). (Word marks that are arbitrary, fanciful, or suggestive are “held to be inherently distinctive.”). GENESIS, the dominant portion and feature of each mark, is identical in sound, appearance, connotation and commercial impression. As previously stated, disclaimed matter may be given less weight in an analysis of likelihood of confusion. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000); In re Nat’l Data Corp., 224 USPQ at 752. Nonetheless, because disclaimed matter contributes to the overall commercial impression created by the mark, we give due consideration to the words HOUSE and 18 By disclaiming the word HOUSE, Applicant has conceded the wording is, at a minimum, descriptive of Applicant’s services. In re Pollio Dairy Prods. Corp., 8 USPQ2d 2012, 2014 n.4 (TTAB 1988). Serial No. 79254538 - 15 - STEAKHOUSE & WINE BAR as they appear in Applicant’s and Registrant’s marks. Consumers will view the different end words that follow GENESIS in each mark as simply reflecting the nature of the services with which each mark is used, rather than as significant elements indicating separate sources. Accordingly, the end words are subordinate to the dominant term GENESIS. As to connotation, GENESIS in each mark connotes “beginning” or “origin,” and the additional end terms do not create significantly different meanings for each mark.19 Given the identity of GENESIS in each mark, even if the additional disclaimed terms may have slightly different meanings, we find that marks engender similar commercial impressions. Applicant argues that Registrant uses its GENESIS STEAKHOUSE & WINE BAR mark in connection with the tree design and stylized wording (referencing a printout from Registrant’s website that it submitted in a response to an office action)20 and submits that in a “real life situation” consumers would encounter Registrant’s mark with the design element and “it would be reasonable to assume” that Registrant’s mark would be presented with the design element. 6 TTABVUE 8- 19 We take judicial notice of the meaning of “genesis” as “an origin, creation, or beginning,” RANDOM HOUSE KERNERMAN WEBSTER’S COLLEGE DICTIONARY, (2010) https://www.thefree dictionary.com/genesis (accessed April 9, 2021), and “house” as “[a] facility, such as a theater or restaurant, that provides entertainment or food for the public.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE www.ahdictionary.com (accessed April 9, 2021). 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). In addition, the Examining Attorney submitted the definition of “house” which is defined as “a place of business or entertainment.” April 5, 2019 Office Action at TSDR 33, MERRIAM-WEBSTER DICTIONARY, merriam-webster.com. 20 October 25, 2019 Response to Office Action at TSDR 156. Serial No. 79254538 - 16 - 9. As a result, Applicant submits that the commercial impression of Registrant’s mark is different because it is “dominated by a tree design.” Id. at 9. However, the mark in Registration No. 5309010 is a standard character mark, and marks appearing in standard character form may be displayed in any font style, color, and size, because the rights reside in the wording and not in any particular display or rendition. See SquirtCo v. Tomy Corp., 216 USPQ at 939 (“[T]he argument concerning a difference in type style is not viable where one party asserts rights in no particular display. By presenting its mark merely in a typed drawing, a difference cannot legally be asserted by that party.”). Thus, we must consider Registrant’s standard character mark, as we must consider Applicant’s standard character mark, “regardless of font style, size, or color.” Citigroup Inc. v. Capital City Bank Grp. Inc., 98 USPQ2d at 1259. See also Aquitaine Wine USA, 126 USPQ2d at 1186-87. Accordingly, Applicant’s arguments are unavailing as to the cited standard character mark. In re Jump Designs, LLC 80 USPQ2d 1370, 1376 (TTAB 2006). We recognize the differences between the marks. Nonetheless, when considered in their entireties, we find that Applicant’s standard character mark GENESIS HOUSE and the cited standard character mark GENESIS STEAKHOUSE & WINE BAR are more similar than dissimilar because the points of distinction do not significantly diminish the similarities in sight, sound, connotation and overall commercial impression engendered by these two marks for identical services. As a result we find relevant consumers may reasonably assume, due to the presence of the leading and dominant term GENESIS in each mark, that Applicant’s restaurant Serial No. 79254538 - 17 - services offered under its mark emanate from the same source as the identical services listed in the cited registration. We next consider the similarity of Applicant’s GENESIS HOUSE mark and the composite word and design mark . Our comments in the preceding paragraphs regarding the descriptive words in each mark also apply here. If anything, the much smaller size of the words STEAKHOUSE AND WINEBAR as well as the use of a white font color in Registrant’s mark makes the disclaimed phrase even less likely to be noticed by consumers. Clearly, the word GENESIS in much larger lettering and in black font is the most prominent literal element in the mark. We also find that, as stated in the preceding paragraphs, the connotation and commercial impression of the literal elements of Registrant’s composite mark and Applicant’s GENESIS HOUSE mark are similar. Applicant argues that the design element is more prominent than the literal portion of Registrant’s mark as it is “dominated by its design of a large tree,” and references in support the cases In re Covalinski, 113 USPQ2d 1166 (TTAB 2014), In re White Rock Distilleries, Inc., 92 USPQ2d 1282, 1284 (TTAB 2009), Parfums de Coeur Ltd. v. Lazarus, 83 USPQ2d 1012 (TTAB 2007), Steve’s Ice Cream v. Steve’s Famous Hot Dogs, 3 USPQ2d 1477(TTAB 1987), and Ferro Corp. v. Ronco Labs., Inc., 356 F.2d 122, 148 USPQ 497 (CCPA 1966). 4 TTABVUE 6. Serial No. 79254538 - 18 - Applicant’s reliance on these cases is misplaced. In Covalinski, the wording in the applicant’s mark was merged together with the design, with some of the letters sized so small as to be practically illegible. In White Rock, the common term VOLTA was scarcely noticeable in the registered mark. In Parfums de Coeur, the larger design was considered grotesque and arresting such that it would catch the viewers eye before the wording. In Ferro Corp., the applicant’s Ferro-Gard and design mark was found not similar to the opposer’s Ferro marks due to the prominence of the term GARD over the term FERRO as well as the presence of an animated bolt carrying a flag which displayed the letters ‘VCI,’ which contrasts from the present case in which the shared term GENESIS is prominently displayed in the cited mark. In Steve’s Ice Cream, the humanized frankfurters were considered suggestive of Applicant’s services which featured hot dogs, and the parties’ services were different, which is not the case here where the services are in-part identical. In the present case, the green-on-green rectangle and tree design is not so unusual that consumers would find it an arresting or eye catching feature, especially with the wording GENESIS in large black type that immediately draws the eye and extends over and beyond each side of the design element, and the fact that the tree design appears to recede into the background, looking more like a silhouette. Even if a consumer were to initially notice the design, it does not dominate the mark as a whole. See, e.g., Coca-Cola Bottling Co. of Memphis, Tenn., Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (BENGAL LANCER and Serial No. 79254538 - 19 - design for club soda, quinine water and ginger ale is likely to cause confusion with BENGAL for gin). Therefore, although the design element provides a point of difference between Registrant’s mark and Applicant’s mark, we find that this difference is not sufficient to overcome their overall similarities. Accordingly, we find that Applicant’s mark GENESIS HOUSE and Registrant’s mark are more similar than dissimilar. We find this DuPont factor weighs in favor of finding a likelihood of confusion. III. Conclusion Given the similarity of the marks, the legal identity of the services, and the overlapping channels of trade and classes of consumers, we find that confusion is likely. We make this conclusion despite our finding of some commercial weakness of the term GENESIS in connection with restaurant services because “even weak marks are entitled to protection against registration of similar marks” for identical services. In re Colonial Stores, 216 USPQ 793, 795 (TTAB 1982). Serial No. 79254538 - 20 - Decision: The Section 2(d) refusal to register Applicant’s mark GENESIS HOUSE is affirmed.