Spin Concepts, Inc.v.Fosco, Inc.

Trademark Trial and Appeal BoardJan 15, 2014

No. 91202544 (T.T.A.B. Jan. 15, 2014)

Mailed: January 15, 2014 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board ______ Spin Concepts, Inc. v. Fosco, Inc. _____ Opposition No. 91202544 to application Serial No. 85219792 filed on January 18, 2011 _____ Joan O. Herman and Cheryl L. Burbach of Hovey Williams LLP for Spin Concepts, Inc. Daniel J. Holmander and Cheryl A. Clarkin of Barlow, Josephs & Holmes, Ltd. for Fosco, Inc. ______ Before Seeherman, Grendel and Gorowitz, Administrative Trademark Judges. Opinion by Seeherman, Administrative Trademark Judge: Spin Concepts, Inc. has opposed the application of Fosco, Inc. to register the mark SPINZS and design, as shown below, for “food delivery” in Class 39. The mark is described as consisting “of the wording ‘SPINZS in stylized THIS OPINION IS NOT A PRECEDENT OF THE TTAB Oppo font the Oppo like pred enga serv prem of t comm food fami and conn oppo its it i 1 Ap on S 2 I lack its the sition No wherein letter ser has lihood o ecessors ged in t ices, an ises, si he oppos erce in s since ly of ma that app ection w ser’s SP restaura s likely plicatio ection 1 n its bri s a bona brief app notice of . 912025 the let ‘I’ is do brought f confus in inte he sale d prepar nce prio ed appli connecti as early rks cons licant’s ith food IN! mark nt servi to caus n Serial (b) of th ef on the fide int licant o opposit 44 ter ‘Z’ tted wit this opp ion, all rest or of resta ed foods r to the cation, on with as May isting o mark SP deliver as used ces and e confus No. 8521 e Tradema case opp ent to of bjected t ion. Opp 2 is depic h a tear osition eging th related urant an for con January and has these se 2005; th f or con INZS and y servic by oppo its prep ion or m 9792, fil rk Act (i oser als fer its i hat this oser has ted as drop de on the g at it o entitie d restau sumption 18, 20 used th rvices at oppo taining design es so r ser in ared fo istake ed Januar ntent-to o asserte dentifie ground w not argu a tornad sign.”1 round o r its s have b rant ca on and 11 filin e mark S and prep ser owns the wor used in esembles connecti od produ or to de y 18, 20 -use). d that a d service as not pl ed that t o and f een rry-out off the g date PIN! in ared a d SPIN!; on with cts that ceive.2 11, based pplicant s. In eaded in his issue Opposition No. 91202544 3 Applicant has denied the salient allegations of the notice of opposition, noting that in opposer’s pleaded registration No. 3163808, opposer deleted Class 30 from the registration when it filed its Section 8 and 15 declaration.3 As a preliminary comment, we note that as the final sentence of applicant’s trial brief it requests that if the Board does not dismiss the opposition, it suspend it pending the disposition of Cancellation No. 92056134, brought by a third party against opposer’s pleaded registration No. 3302233 for SPIN!. This request is denied. If applicant believed that proceedings in this opposition should have been suspended pending a determination in the cancellation action, it should have requested such suspension at a much earlier point in this proceeding. In this connection, we note that the cancellation proceeding commenced in September 2012, before was tried by consent of the parties; in fact, in its reply brief opposer has not addressed applicant’s objection in any way. We agree that the ground of lack of bona fide intent to use was neither pleaded nor tried. Accordingly, the only ground for opposition that we have considered is that of likelihood of confusion. 3 Applicant listed in its answer what it characterized as affirmative defenses. In general, they are simply amplifications of its denials of the allegations of likelihood of confusion. To the extent that any constitute actual affirmative defenses, they have not been addressed by applicant in its trial brief, and we deem them to have been waived. Opposition No. 91202544 4 trial in this opposition began, and applicant actually made the petition to cancel of record during its testimony period. There is no dispute between the parties as to the material that is of record. Specifically, both opposer and applicant have stated at page one of their briefs that the record includes the file of opposed application No. 85219792; opposer’s notice of opposition; applicant’s answer; opposer’s notice of reliance introducing the files for opposer’s pleaded registrations Nos. 3163808, 3172270 and 3302233, media files and press releases related to opposer and its goods and services,4 third-party registrations; and the testimony deposition of opposer’s witness, Gail Lozoff. In addition, applicant has stated in its brief, at page 1, that it has made of record, through its notice of reliance, a petition for cancellation of opposer’s pleaded Registration No. 3302233 filed by a third party (Exhibit B), third-party registrations for marks having the letters SPIN (Exhibit C) and third-party registrations for marks having a stylized “Z” or “ZS” (Exhibit H). In reviewing 4 Press releases cannot be made of record by notice of reliance. However, because applicant has listed these materials as being of record, we treat them as having been stipulated into the record. In addition, opposer properly made the press releases of record as exhibits to the Lozoff testimony deposition. Opposition No. 91202544 5 the notice of reliance we note that applicant has also listed additional exhibits, namely, “file histories and related proceeding documents for registrations and/or applications of marks owned by the Opposer which including [sic] or incorporating [sic] in part SPIN!,” including opposer’s three pleaded registrations and applications Nos. 85325171 for SPIN! and 85432074 for SPIN! NEAPOLITAN PIZZA (stylized) (Exhibit A); a printout from the TTABVUE database listing opposition and cancellation proceedings relating to opposer’s marks, in which opposer has, with the exception of one proceeding, been the plaintiff (Exhibit D); third-party use of “Spin-type Marks” (Exhibit F); third-party registrations relating to the parties’ services (Exhibit G); and third-party registrations for marks that include an “I” dotted with a teardrop, raindrop or drop.5 We note that, although opposer submitted “soft” copies of its certificates of registration with its notice of opposition, these registrations issued a significant amount of time prior to the filing of the notice of opposition on November 15, 2011; one issued in 2007 and the other two issued in 2006. Thus, they are unacceptable to show 5 Applicant has also submitted as part of its notice of reliance one of opposer’s promotional emails (Exhibit E); however, this material cannot be made of record by notice of reliance. We add that, even if this exhibit had been properly made of record, it would have no effect on our decision. Opposition No. 91202544 6 current status and title. However, as part of the exhibits to the testimony deposition of opposer’s witness, Gail Lozoff, opposer submitted copies of its registrations taken from the USPTO’s TESS database, showing current status and title. See exhibit 2, which includes a printout of Registration No. 3163808; Exhibit 3, which includes a printout of Registration No. 3172270; and Exhibit 4, which includes a printout of Registration No. 3302233; all of these printouts are dated April 8, 2013. Therefore, all of opposer’s pleaded registrations, shown below, are of record: SPIN! (in standard characters) for “prepared foods for consumption on and off the premises, namely, pizza, panini, and gelato” and “restaurant services and restaurant carry-out services”;6 for “prepared foods for consumption on and off the premises, namely, pizza, panini and gelato” and “restaurant services and restaurant carry-out services.” The mark is described as consisting of “The stylized image of 6 Registration No. 3302233, issued October 2, 2007. The TESS printout was from April 8, 2013, so in accordance with Board procedure, we have ascertained from USPTO records that a Section 8 affidavit was accepted on June 19, 2013. Opposition No. 91202544 7 a man bending over while riding a bicycle and spinning a pizza over his head with the words SPIN! and NEAPOLITAN PIZZA below the image.” The words NEAPOLITAN PIZZA have been disclaimed;7 and for “restaurant services and restaurant carry-out services.” The mark is described as consisting “of the word SPIN stacked above the stylized image of a man bending over while riding a bicycle and spinning a pizza over his head with the words NEAPOLITAN PIZZA below the image.” The words NEAPOLITAN PIZZA have been disclaimed.8 Opposer’s pleaded registrations for its SPIN! marks, which are of record, are sufficient to show that it has a real interest in the outcome of the proceeding, and is thus 7 Registration No. 3172270, issued November 14, 2006; Sections 8 and 15 affidavit, respectively, accepted and acknowledged. 8 Registration No. 3163808, issued October 24, 2006. A partial Section 8 declaration, deleting the goods in Class 30, was accepted, and a Section 15 declaration was acknowledged. In referring to this registration in its brief filed September 23, 2013, opposer listed it as also including goods in Class 30, but this class was deleted on December 17, 2011. The Office action accepting the Section 8 and 15 declaration, mailed on December 17, 2011 was submitted by opposer as part of its notice of reliance, TTABVUE # 16, p. 8, and its combined Section 8 and 15 declaration, filed on November 3, 2011 (12 days before the filing of the notice of opposition) in which opposer specifically states that Class 30 should be deleted from the registration, is found in opposer’s notice of reliance as well, TTABVUE # 16, pp. 9-16. The copy of the registration, showing status and title, which was submitted as part of Exhibit 2 to the Lozoff testimony deposition, printed from the TESS database on April 8, 2013, also shows that the Class 30 goods have been cancelled from the registration. Opposition No. 91202544 8 not a mere intermeddler. Accordingly, opposer has established its standing. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir. 2000); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999); Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982). Further, in view of these registrations, priority as to the marks and goods and services identified in these registrations is not in issue. King Candy Company v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). Accordingly, the only issue we must determine is that of likelihood of confusion. In determining whether confusion is likely, we analyze all of the probative facts in evidence that are relevant to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also, In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We begin with the factor of the similarity of the goods and services. Opposer’s registrations include in the identification “restaurant services and restaurant carry- out services,” while applicant’s services are identified as “food delivery.” Applicant is correct that the services are not identical. However, “it is not necessary that the goods or services be identical or even competitive in Opposition No. 91202544 9 nature in order to support a finding of likelihood of confusion, it being sufficient that the goods or services are related in some manner and/or that the circumstances surrounding their marketing are such that they would be likely to be encountered by the same persons under circumstances that would give rise, because of the marks employed thereon, to the mistaken belief that they originate from or are in some way associated with the same producer.” In re Home Builders Assn. of Greenville, 18 USPQ2d 1313, 1317 (TTAB 1990). Here, opposer has shown that delivery services are closely related to restaurant services. First, its own services involve food delivery as a significant part of its business. Test. p. 17. It specifically targets businesses in terms of delivery of “box lunches” to them. See, for example, exhibit 17.9 In addition, opposer has submitted numerous third-party registrations showing that parties have adopted a single mark for both restaurant services and delivery services, e.g., Registration No. 4024104 for, inter alia, restaurant services; restaurant food take-out 9 Opposer contends that it has common law rights in SPIN! for food delivery services. Although there is evidence of use of the mark for these services, it has not been clearly shown when such use first occurred, and therefore we cannot say that it established common law rights in the mark for these services prior to the filing date of applicant’s intent-to-use application. Opposition No. 91202544 10 services; restaurants featuring home delivery; Registration No. 2878739 for, inter alia, delivery of food by restaurants, food delivery, restaurant services, take-out restaurant services; Registration No. 2458902 for, inter alia, food delivery services, restaurant services, carry- out services; and Registration No. 3720126 for, inter alia, food delivery, restaurant services, carry-out restaurants, take-out restaurant services. Third-party registrations which individually cover a number of different items and which are based on use in commerce serve to suggest that the listed goods and/or services are of a type which may emanate from a single source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993). Accordingly, we find that opposer’s identified restaurant services and restaurant carry-out services and applicant’s identified food delivery services are closely related. As for the du Pont factor of channels of trade, both parties’ services, as identified, would be offered to the same class of consumers, i.e., members of the general public who wish to have food prepared for them. In fact, opposer’s consumers are families and businesses. Test. p. 20. Therefore, we find this factor to favor a finding of likelihood of confusion. Oppo we c appl on a Pty 2011 2010 are desi cont show mark regi “SPI the term dict Inc also (Fed sition No We turn onsider icant’s compari Ltd. V. ); In re ). Much differen gn in it ention t ing that is not Applica stration N.” Thi marks ar has a m ionaries ., 534 F In re M . Cir. 2 . 912025 next to opposer mark son of t Phard S Max Cap of appl t go to s mark i hat the the “Z” entitled nt has s s for ma rd-party e in use eaning o are use .2d 915, ighty Le 010). 44 a consi ’s mark S hese two .p.A., 98 ital Gro icant’s the clai s the do term SPI design to a br ubmitted rks havi registr , but th r signif d. Tekt 189 USPQ af Tea, 11 deration PIN! to , we co marks. USPQ2d up Ltd. argument m that t minant e N is wea is domin oad scop a numbe ng the w ations a ey may b icance i ronix, I 693, 6 601 F.3d of the be clos ncentra See Ro 1066, 1 , 93 USPQ s as to he “Z” lement, k, both ant, an e of pr r of th ord or re not e used n the s nc. v. D 94 (CCPA 1342, marks. est to te our a cket Tra 073, n. 2d 1243 why the or torna and to in term d that o otection ird-part letter s evidence to show ame way aktroni 1976). 94 USPQ2 Because nalysis demarks 14 (TTAB (TTAB marks do the s of pposer’s . y tring that that a that cs, See d 1257 Opposition No. 91202544 12 In this case, we find that the third-party registrations are not particularly persuasive.10 Many of these registrations are for marks that contain only the letter string SPIN as part of other words, such that the word SPIN would not be recognized. See, Registration No. 4234907 for ALLA SPINA (translated as meaning “on tap); Registration No. 2481595 for SPINACI’S (translated as meaning “spinach”); Registration No. 3582732 for SPINATO’S PIZZA and design; Registration Nos. 2119772 and 4296943 for SPINELLI COFFEE COMPANY SAN FRANCISCO marks; Registration Nos. 1205013 and 1205022 for SPINNAKER’S marks; Registration No. 3800384 for SPINOZA’S; and Registration No. 3239399 for SPINY LOBSTER KING’S FISH HOUSE and design. There are registrations in which the word SPIN, or a variation of that word, appears, e.g., Registration No. 3709870 for MOONSPIN; NIC SPIN OLI and design; Registration No. 2916223 for SALAD SPINNERS and design; Registration No. 3137891 for SPIN CAFE; and Registration No. 3731276 for 10 We give no persuasive value to the third-party applications submitted by applicant, as they have no probative value other than to show that they were filed. Nor does Registration No.3785440 for FIRST SPIN have probative value, as the services identified in that registration are not for restaurant or similar services, but are entertainment services of providing a digital theater environment in such venues as private clubs, restaurants, hotel and convention center banquet facilities and theaters. The use of the mark for such services does not indicate what significance the term SPIN would have in connection with restaurant and carry-out services or food delivery services. Opposition No. 91202544 13 SPINNERS FRESH MEDITERRANEAN SALADS & GRILL and design. However, we cannot ascertain from these registrations that SPIN has a particular meaning when used in connection with restaurant services or food delivery. In fact, in the NIC SPIN OLI mark SPIN suggests SPINACH, since the identified goods are a baked food item containing cheese, spice, sauce and spinach rolled inside of a pizza dough. In the SPINNERS FRESH MEDITERRANEAN SALADS & GRILL mark, SPINNERS suggests people who spin yarn, as the design is that of a spindle with thread wrapped around it. SALAD SPINNERS could be a reference to or wordplay on the kitchen tool, while SPIN in MOONSPIN appears to refer to the rotation of the moon. We acknowledge that in the mark SPIN CAFE for “coffee house; coffee shop” the word SPIN is clearly recognizable, but given the number of different definitions this word has,11 we cannot conclude from this mark exactly what 11 We take judicial notice that SPIN has the following meanings: 1. to make (yarn) by drawing out, twisting, and winding fibers; Pioneer women spun yard on spinning wheels. 2. to form (the fibers of any material) into thread or yarn: The machine spins nylon thread. 3. (of spiders, silkworms, etc.) to produce (a thread, cobweb, gossamer, silk, etc.) by extruding from the body a long, slender filament of a natural viscous matter that hardens in the air. 4. to cause to turn around rapidly, as on an axis; twirl; whirl: to spin a coin on a table. 5. Informal. to play (phonograph records): a job spinning records on a radio show. Opposition No. 91202544 14 6. Metalworking. to shape (sheet metal) into a hollow, rounded form by pressure from a tool while rotating the metal on a lathe or wheel. 7. to produce, fabricate, or evolve in a manner suggestive of spinning thread: to spin a tale of sailing ships and bygone days. 8. Rocketry. to cause intentionally (a rocket or guided missile) to undergo a roll. 9. to draw out, protract, or prolong (often followed by out): He spun the project out for over three years. 10. British. to flunk a student in an examination or a term’s work. 11. Slang. to cause to have a particular bias; influence in a certain direction: His assignment was to spin the reporters after the president’s speech. 12. to revolve or rotate rapidly, as the earth or a top. 13. to produce a thread from the body, as spiders or silkworms. 14. to produce yarn or thread by spinning. 15. to move, go, run, ride, or travel rapidly. 16. to have a sensation of whirling; reel: My head began to spin and I fainted. 17. to fish with a spinning or revolving bait. 18. the act of causing a spinning or whirling motion. 19. a spinning motion given to a ball, wheel, axle, or other object. 20. a downward movement or trend, especially one that is sudden, alarming, etc.: Steel prices went into a spin. 21. a rapid run, ride, drive, or the like, as for exercise or enjoyment: They went for a spin in the car. 22. Slang. a particular viewpoint or bias, especially in the media; slant: They tried to put a favorable spin on the news coverage of the controversial speech. 23. Also called tailspin, tail spin. Aeronautics. A maneuver in which an airplane descends in a vertical direction along a helical path of large pitch and small radius at an angle of attack greater than the critical angle, dangerous when not done intentionally or under control. 24. Rocketry. a. the act of intentionally causing a rocket or guided missile to undergo a roll. b. a roll so caused. 25. Also called spin angular momentum. Physics. the intrinsic angular momentum characterizing each kind of elementary particle, having one of the values 0, 1/2, 1/3, … when measured in units of Planck’s constant divided by 2Π. 26. Australian. a run of luck; fate. Dictionary.com, unabridged, based on the Random House Dictionary, 2013. The Board may take judicial notice of dictionary definitions, including those in online dictionaries which exist in printed format. In re Premiere Distillery, LLC, 103 USPQ2d 1483, 1484 (TTAB 2012); University of Notre Dame du Lac v. J. C. Opposition No. 91202544 15 meaning it conveys, let alone that SPIN has a descriptive or highly suggestive meaning, such that it should be given limited weight in either party’s mark when we compare the marks as a whole. We also note that there are two registrations, owned by a single entity, for marks containing the term SPINX, e.g., Registration No. 3983260 for SPINX per se, and Registration No. 3983259 for SPINX MAKING LIFE EASIER and design, in which the letters SPIN are above a dotted line and the dotted line continues into the right side of the X, so that it appears as the center line in a road. In the word mark, it is not clear that consumers would view SPINX as SPIN and X, rather than as the unitary invented word SPINX (which, in turn, calls to mind the actual word SPHINX). In the word and design mark, the different treatment of the X could result in consumers recognizing the beginning of the mark as SPIN but, again, we cannot ascertain from this mark, registered for, inter alia, “carry-out restaurant services,” or this mark and SPIN CAFE, that SPIN has a particular significance for restaurant, carry-out, or delivery services. Gourmet Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). Opposition No. 91202544 16 Turning now to the marks, it is a well-established principle that, 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 given to a particular feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). The word SPIN is obviously the dominant element of opposer’s mark SPIN!. Applicant itself recognizes that the exclamation point is not distinctive. Brief, p. 5. As for applicant’s mark, in view of the fact that applicant has not shown that SPIN has a particular significance for food delivery services, we cannot agree with applicant that the dominant portion of its mark is the design element that separates the word SPIN from the final letter S. Rather, it is the word SPIN that would make the greatest impression as it is the first element of the mark, and is a recognizable word that consumers can pronounce. It is unclear whether consumers would view the design as the letter “Z” or as a tornado or some other abstract design, perhaps suggesting speed when used with food delivery services.12 In fact, applicant contends that the 12 We are not persuaded by applicant’s argument that “it is Opposition No. 91202544 17 stylized letter “Z” is “depicted as a tornado which is a creative way of emphasizing the speed of Applicant’s food delivery services.” Brief, p. 7. However consumers may view the design, we find it very unlikely that they would refer to or think of the source of the services as “the mark with the Z design” or “the mark with the tornado design”; rather, they are likely to refer to the mark as SPIN or SPINS. Thus, despite the larger size of the design element, we find that, as in many other situations in which a mark comprises both a word and a design, it is appropriate to accord the literal portion greater weight because it would be used by purchasers to refer to or request the services. See In re Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987). We acknowledge that there are specific differences in the marks, including the additional elements in applicant’s mark of not only the “Z” design element, but the teardrop design dotting the “I” in SPIN, and the final “S,” and the exclamation point in opposer’s mark. While these differences may be noticeable when the marks are compared side-by-side, under actual marketing conditions consumers do not necessarily have the luxury of making side-by-side impossible for Applicant’s stylized letter ‘Z’ to represent anything other than the letter ‘Z’ as the letter is outlined in bold.” Brief, p. 7. Opposition No. 91202544 18 comparisons between marks, and must rely upon their imperfect recollections. Dassler KG v. Roller Derby Skate Corporation, 206 USPQ 255 (TTAB 1980). We also point out that, although applicant asserts that opposer’s mark does not have a dot over the “I,” the mark is registered in standard characters, which means that opposer is entitled to depictions of its mark regardless of font style, size, or color. Citigroup In. v. Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011). Thus, opposer may use its mark in the same font as the word SPIN in applicant’s mark, and with an exaggerated dot design over the “I”. As we previously mentioned, consumers may focus on the word SPIN in applicant’s mark, and therefore pronounce it identically to opposer’s mark SPIN!. Even if they view the final “S” as part of the word, they would pronounce it as “SPINS,” which is extremely close to “SPIN” and would be understood as the plural form of the word. Further, whatever meaning consumers ascribe to the word SPIN (or SPINS), that meaning would be the same in both marks. The design element in applicant’s mark, which indicates a whirling or spinning motion, merely reiterates the meaning of the word. We also find that the commercial impression of the two marks is similar. Opposition No. 91202544 19 Thus, while the design element in applicant’s mark and the final “S” create some differences, they are insufficient to distinguish the marks. The marks have the same or very similar pronunciations and convey the same meaning and commercial impression. The next du Pont factor discussed by the parties is the conditions under which and buyers to whom sales are made, i.e., “impulse” vs. careful, sophisticated purchasing. As previously discussed, opposer has shown that its restaurants are patronized by the general public, including families and senior citizens. Applicant’s services, as identified, would also be obtained by the same class of purchasers. We cannot treat these consumers as having any particular sophistication, nor can we say that the services would be chosen with any great degree of care. In this connection, opposer’s witness has testified that the price range for a lunch is about $9 and is $13-14 for a dinner. Test. p. 22. Thus, we find that the consumers for the parties’ services are not likely to pay particular note to the differences in the marks, or view these differences as distinguishing the sources of the services. The next du Pont factor that we examine is “the number and nature of similar marks in use on similar goods [or services].” Du Pont, 177 USPQ at 567. Applicant has Opposition No. 91202544 20 quoted extensively from comments made by opposer when it was prosecuting its own application for SPIN! and was refused registration on the basis of two prior registrations for SPIN marks (Registration No. 3137891 for the aforesaid SPIN CAFE for “coffee house; coffee shop,”13 and a now-cancelled registration, No. 2942183 “for coffee- based beverages; espresso-based beverages”). Although we may consider these comments as facts “illuminative of shade and tone in the total picture confronting the decision maker,” they cannot substitute for our reaching our own conclusion. Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 198 USPQ 151, 154 (CCPA 1978). In this case, comments made by opposer in 2007 do not necessarily reflect the current situation. As noted, one of the cited registrations from that time has been cancelled, and there is evidence that since that time opposer has filed a number of proceedings to oppose or cancel registrations for marks containing the word SPIN. We have also found that some of the third-party registrations referenced by opposer in its response, e.g., for NIC SPIN OLI, SPINELLI COFFEE COMPANY SAN FRANCISCO and SPINNAKER’S, do not show that SPIN has a particular 13 At the time this registration was cited, the mark was SPIN CAFFÉ; it was amended pursuant to Section 7 in 2012. Opposition No. 91202544 21 significance for the services at issue. Most importantly, although opposer relied on these registrations in its response to the examining attorney to make a point regarding extensive use of a mark, as we have said above, third-party registrations are not evidence that the marks are in use. Applicant has submitted some evidence of third-party use in the form of internet printouts. Notice of Reliance, Exhibit F. There are two for what appear to be branches of a business that offers table tennis or ping pong, SPiN MILWAUKEE, located in Milwaukee, Wisconsin and SPiN NEW YORK, located in New York City. The webpages indicate that these establishments have restaurants on the premises called SPiN Cafe. http://milwaukee.spingalactic.com and http://newyork.spingalactic.com. These cafes appear to be subsidiary to the primary entertainment services of the establishments, and therefore are of no real probative value in terms of showing third-party use for the services at issue. However, Exhibit F does show four restaurants, i.e., SPIN CAFE, described on the webpage as “a fun downtown restaurant in Heber City, Utah” (http://spincafe.net); SPIN, described on the webpage as “Modern Thai Cuisine,” and located in Austin, Texas (http://spinmodernthai.com); SPIN THE SPINNING PIE·PIZZA Opposition No. 91202544 22 LOUNGE, with a logo in which the silhouette of a chef tossing a pizza substitutes for the letter “I,” located in Atlanta, GA (www.thespinningpie.com); and TASTY SPIN, with a logo in which a top substitutes for the letter “I,” and which logo includes the words “burgers·hotdogs·salads·gyros.” The webpage includes the slogan A TASTY SPIN ON FAST FOOD! and gives a location in Buffalo Grove, IL. www.tastyspin.com. The presence in marks of common elements extensively used by others unrelated as to source may cause purchasers not to rely upon such elements as source indicators, but to look to other elements as a means of distinguishing the source of the goods/services. Carl Karcher Enterprises Inc. v. Stars Restaurants Corp., 35 USPQ2d 1125, 1131 (TTAB 1995). However, the usage by four restaurants, as shown by the evidence in this case, is not sufficient for us to conclude that consumers are so used to seeing SPIN marks for food and restaurant-related services that they would distinguish between opposer’s and applicant’s marks based on either the exclamation point in opposer’s mark or the design element and final “S” in applicant’s mark. Based on the information in the webpages of record, the third-party uses appear to be local, and in very separate areas (Heber City, UT, Austin, TX, Atlanta, GA and Buffalo Grove, IL). Opposition No. 91202544 23 There is no evidence as to the extent of the use of the marks. Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100 (TTAB 2007). As a result, we cannot conclude that consumers are aware of multiple uses of SPIN marks and would therefore give the SPIN element in trademarks less source-identifying weight. We must also add that, with respect to the third-party use of the mark SPIN THE SPINNING PIE·PIZZA LOUNGE, this single instance of use of SPIN in connection with a restaurant that serves pizza is not sufficient for us to conclude that opposer’s mark SPIN! is weak, and deserving of such a limited scope of protection that applicant should be able to obtain a registration for its mark beginning with the word SPIN. Other than this single use, there is no evidence of record that the term “spin” is normally used in connection with tossing or throwing pizza dough. After considering all the relevant du Pont factors,14 we find that applicant’s mark, if used for “food delivery,” is likely to cause confusion with opposer’s mark SPIN! for, inter alia, “restaurant services and restaurant carry-out services.” In view of this finding, we need not consider 14 Any other du Pont factors that we have not discussed, to the extent that they are relevant, have been treated as neutral. Opposition No. 91202544 24 whether applicant’s mark is likely to cause confusion with opposer’s other pleaded registrations. Decision: The opposition is sustained.