Wilhelmina Wynn DBA Ms. Wynn's

Trademark Trial and Appeal Board

Dec 14, 2021

88160233 (T.T.A.B. Dec. 14, 2021)

Mailed: December 14, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board --- In re Wilhelmina Wynn --- Serial No. 88160233 --- Daniel H. Bliss of Howard & Howard Attorneys PLLC for Wilhelmina Wynn. Christina L. Martin, Trademark Examining Attorney, Law Office 103, Stacy Wahlberg, Managing Attorney. --- Before Cataldo, Kuczma and English, Administrative Trademark Judges. Opinion by Cataldo, Administrative Trademark Judge: Applicant, Wilhelmina Wynn, d/b/a Ms. Wynn’s, filed an application on the Principal Register for the mark (“SWEET & SAVORY CREATIONS” disclaimed) in connection with the following goods, as amended: “all purpose sauces for fish excluding marinades; seasoned fish fry batter mix for frying This Opinion is not a Precedent of the TTAB Serial No. 88160233 - 2 - fish,” in International Class 30.1 Applicant appeals from the Examining Attorney’s final refusal to register under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark is likely to cause confusion in view of two registered marks, owned by the same entity and displayed below: WYNN’S GRAIN & SPICE (in standard characters, “SPICE” disclaimed),2 and (“SPICE” disclaimed),3 both identifying the following goods: pre-mixed breading, mixes for making breading, pre-mixed batter, mixes for making baking batters, marinade, marinade mixes, biscuit mix, spices, spice blends, spices for rotisseries in International Class 30.4 Likelihood of Confusion Our determination under Trademark Act Section 2(d) is based on an analysis of 1 Application Serial No. 88160233 was filed on October 18, 2018, seeking registration on the Principal Register under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intent to use the mark in commerce. Applicant submitted the following description of the mark and color claim: “The mark consists of the words Ms. Wynn’s Sweet & Savory Creations next to a silhouette of a lady.” “Color is not claimed as a feature of the mark.” 2 Registration No. 4448784 issued on the Principal Register on December 10, 2013. Section 8 affidavit accepted; Section 15 affidavit acknowledged. 3 Registration No. 4448786 issued on the Principal Register on December 10, 2013 with the following color claim and description of the mark: “Color is not claimed as a feature of the mark.” “The mark consists of an image of 3 plant shoots inside of a circle followed by the word ‘Wynn’s’ beside the image with the words ‘GRAIN & SPICE’ written underneath the word ‘Wynn’s’.” Section 8 affidavit accepted; Section 15 affidavit acknowledged. 4 Page references to the application record are to the downloadable .pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions and orders on appeal are to the Board’s TTABVUE docket system. Serial No. 88160233 - 3 - the probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. See In re E.I. du Pont de Nemours & Co. (“DuPont”), 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We consider the DuPont factors for which there are arguments and evidence. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1164 (Fed. Cir. 2019). In considering the evidence, we keep in mind that “[t]he fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of differ- ences in the essential characteristics of the goods and differences in the marks.” Fed- erated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999). For purposes of our determination, we focus on cited Registration No. 4448784 for the standard character mark WYNN’S GRAIN AND SPICE. If likelihood of confusion is found as to the mark and goods in this registration, it is unnecessary to consider the other cited registration because it identifies identical goods. Conversely, if likelihood of confusion is not found as to the mark and goods in this registration, we would not find likelihood of confusion as to the mark and goods in the other cited registration. See In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). Evidence In support of the refusal to register, the Examining Attorney introduced into the record the results of searches of Merriam-Webster.com (April 13, 2019 first Office Action at 24, 27-30) defining “SEASONING” as “an ingredient (such as a condiment, spice or herb) added to food primarily for the savor that it imparts;” “SWEET” as Serial No. 88160233 - 4 - “being, inducing, or marked by one of the five basic taste sensations that is usually pleasing to the taste and typically induced by sugars;” “SAVORY” as “the taste sen- sation that is produced by several amino acids and nucleotides and has a rich or meaty flavor characteristic of cheese, cooked meat, mushrooms, soy, and ripe toma- toes;” and “CREATION” as “the act of making, inventing, or producing.” The Exam- ining Attorney further introduced the results of a search of AHDictionary.com (Feb- ruary 7, 2020 final Office Action at 9) defining “GRAIN” as “a small, dry, one-seeded fruit of a cereal grass, having the fruit and the seed walls united;” and “a cereal grass: Wheat is a grain grown in Kansas.” The Examining Attorney also introduced into the record pages from the following third-party websites (December 10, 2020 Denial of Request for Reconsideration at 8- 11) showing the same companies marketing goods under identical brand names, with and without the title, “Mrs.”:  Mrs. Dash offers DASH and MRS. DASH branded products;  Mrs. Barr’s Natural Foods offers BARR’S and MRS. BARR’S branded products; and  Instacart offers CUBBISON’S and MRS. CUBBISON’S branded products. The Examining Attorney further introduced into the record pages downloaded from the following third-party Internet websites (December 10, 2020 Denial of Re- quest for Reconsideration at 12-31, 34-49, 52-55) showing Applicant’s goods and the goods identified in the cited registration, offered under the same marks:  Andy’s Seasoning offers breading and fish batter; Serial No. 88160233 - 5 -  Louisiana Fish Fry offers spices, spice blends, pre-mixed batters and fish bat- ter, fish coating mix, and fish fry;  Target offers Zatarain’s spices and seasoned fish batter mix for frying fish;  House Autry offers mixes for making breading, mixes for baking batters and spice blends and seasoned fish batter mix for frying fish;  Amazon, McCormick, Safeway and Walmart offer McCormick spices and fish fry batter mix;  Stonewall Kitchen offers mixes for baking batters, marinades and fish fry mix;  Sylvia’s offers mixes for making baking batters, spice blends, and fish fry mix;  Cajun Grocer and Tony Chachere’s offer Tony Chachere’s marinades, spice blends, and seasoned fish fry batter mix; and  Bass Pro Shops offers Uncle Buck’s mixes for baking batters and fish fry batter mix. The Examining Attorney submitted additional pages downloaded from third-party Internet websites (December 10, 2020 Denial of Request for Reconsideration at 19- 21, 34-45) showing that marinades may be used as sauces and vice versa, and that the following third parties offer sauces that may be so utilized: Country Bob’s; Hot Sauce Planet; OG Hot Sauce; Reggae Spice; Scotch Boyz; Spruce Eats; Stonewall Kitchen; Tantalizer; Workweek Lunch; and Wozz!. Analysis A. Similarity or dissimilarity and nature of the goods The second DuPont factor concerns the “similarity or dissimilarity and nature of the goods or services as described in an application or registration.” Stone Lion Cap- ital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d Serial No. 88160233 - 6 - 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). A proper comparison of the goods considers whether “the consuming public may perceive [the respective goods of applicant and registrant] as related enough to cause confusion about the source or origin of the goods or services.” Hewlett Packard, 62 USPQ2d at 1004. Therefore, to support a finding of likelihood of confusion, it is not necessary that the goods be identical or even competitive. It is sufficient that the goods are related in some manner, or that the circumstances surrounding their mar- keting are such that they would be encountered by the same persons in situations that would give rise, because of the similarity of the marks, to a mistaken belief that they originate from the same source or that there is an association or connection be- tween the sources of the goods. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009). The Examining Attorney’s website evidence demonstrates that the above-listed third parties offer fish fry batters of the type identified in the application and bread- ing, mixes for making breading, batter, marinade, spices and spice blends of the type identified in the cited registration, under the same mark. In addition, the Examining Attorney’s evidence demonstrates that sauces for, inter alia, fish and marinades are related products that may be used interchangeably. We thus find that consumers would readily expect these goods could emanate from the same sources. Internet ma- terial is competent evidence of trademark registrability in ex parte appeals. See In re Bayer AG, 488 F.3d 960, 966, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007); In re Reed Serial No. 88160233 - 7 - Elsevier Props., Inc., 482 F.3d 1376, 82 USPQ2d 1378, 1381 (Fed. Cir. 2007). In this case, the website evidence introduced by the Examining Attorney shows on its face that third parties offer on their websites Applicant’s products and many of the prod- ucts identified in the cited registration under the same mark. Applicant argues: Contrary to the Examining Attorney, Applicant has restricted the scope of the wording to describe its goods and excluding marinade would not encompass an all purpose sauce for fish. A “marinade” is used to infuse flavor to a dish before cooking. A “sauce” is added or made while the dish is cooking or it can be added afterwards. In addition, a country style breading does not encompass a seasoned fish fry as evidenced by the registrant’s specimen filed for both marks in previously submitted into evidence in Exhibit 1. As such, Applicant’s goods and the regis- trant’s goods are not legally identical. In addition, the registrant’s mark includes “grain & spice”, which would be misdescriptive for all purpose sauces for fish and a seasoned fish fry batter mix. Based on the above, the goods/services are dissimilar because Appli- cant’s goods feature all purpose sauces for fish excluding marinades and a seasoned fish fry batter mix for frying fish and registrant’s goods fea- ture general food preparations. As such, the nature of Applicant’s goods/services is dissimilar from the nature of registrants’ goods/ser- vices. Therefore, this DuPont factor favors Applicant that there is no likelihood of confusion. (Applicant’s brief; 6 TTABVUE 7, emphasis sup- plied by Applicant). Applicant’s argument, perhaps factually accurate, is misplaced. It is not necessary for the owner of the cited registration to offer goods identical to or otherwise encom- passing Applicant’s identified goods. The question is whether the goods are suffi- ciently related such that, if similar marks are used thereon, consumers are likely to believe that the goods emanate from the same source. Thor Tech Inc., 90 USPQ2d at 1635; Hydra Mac, Inc. v. Mack Trucks, Inc., 507 F.2d 1399, 184 USPQ 351 (CCPA 1975) (“the confusion found to be likely is not as to the products but as to their Serial No. 88160233 - 8 - source”); In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012). The respective goods need only be “related in some manner and/or if the circum- stances surrounding their marketing [be] such that they could give rise to the mis- taken belief that [the goods] emanate from the same source.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). See also On- line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984). The Examining Attorney’s evidence discussed above demon- strates that third parties offer sauces and frying batters as well as marinades, bat- ters, spices and breading under the same marks. This evidence supports a finding that consumers who encounter Applicant’s goods may believe they emanate from the same source as the goods in the cited registration. Thus, the record establishes the relatedness of the involved goods. Further, it is not necessary for the Examining Attorney to prove likelihood of con- fusion with respect to each of the goods identified in applicant’s application; if there is likelihood of confusion with respect to any of Applicant’s identified goods, the re- fusal of registration must be affirmed. “Likelihood of confusion must be found as to the entire class [of goods or services identified] … if there is likely to be confusion with respect to any [good or] service that comes within the recitation of [goods or] services in that class.” Primrose Retirement Cmtys., LLC v. Edward Rose Senior Liv- ing, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v. Gen. Serial No. 88160233 - 9 - Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)). We find that the second DuPont factor weighs in favor of likelihood of confusion. B. The similarity or dissimilarity of established, likely-to-continue trade channels and classes of consumers The third DuPont factor concerns “[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1161 (quoting DuPont, 177 USPQ at 567). Because there are no limitations as to channels of trade or classes of purchasers in the recitation of goods in the involved application or cited registration, we must presume that the goods move in all channels of trade normal for such goods and are available to all potential classes of ordinary consumers thereof. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). For this reason, we are not persuaded by Applicant’s argument that it sells its products on the Internet to consumers for their personal consumption while the goods in the cited registration are marketed “to commercial establishments such as restaurants.” (6 TTABVUE 8.) Simply put, no such re- strictions are present in the respective goods as identified. As noted above, the Examining Attorney has introduced evidence that Applicant’s goods are offered for sale on websites that also offer the goods identified in the cited registration. Because these websites are accessible by anyone, including the general public, professionals and institutions, they must be presumed to offer their goods to any interested consumer. This evidence supports a finding that Applicant’s goods and Serial No. 88160233 - 10 - the goods recited in the cited registration are offered in at least one common channel of trade, i.e., for retail sale on third-party websites, to overlapping purchasers. We find that the third DuPont factor weighs in favor of likelihood of confusion. C. Similarity or dissimilarity of the marks Under the first DuPont factor, we determine the similarity or dissimilarity of Ap- plicant’s mark and the registered WYNN’S GRAIN & SPICE mark in their entireties, taking into account their appearance, sound, conno- tation and commercial impression. DuPont, 177 USPQ at 567; Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1160; Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “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 (internal quotation marks omitted). See also Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016). Consum- ers 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). And, as discussed infra, the average purchasers who are likely to Serial No. 88160233 - 11 - encounter both marks include ordinary consumers. The registered mark appears in standard characters and therefore we must con- sider presentations of that mark regardless of font style, size or color in determining their similarity or dissimilarity. Citigroup v. Capital City Bank Grp. 98 USPQ2d at 1259 (the Board should use the DuPont factors to determine whether there is a like- lihood of confusion between the depictions of standard character marks and not re- strict the analysis to “reasonable manners” of depicting standard character marks); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1910 (Fed. Cir. 2012). We find that the term WYNN’S in the registered WYNN’S GRAIN & SPICE mark is the most distinctive portion thereof. The terms GRAIN & SPICE appear to describe features or ingredients of the identified goods, and refer back to WYNN’S as the source of the goods under the WYNN’S GRAIN & SPICE mark. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985) (“Regarding descriptive terms, this court has noted that the descriptive component of a mark may be given little weight in reaching a conclusion on the likelihood of confusion”); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s commercial impression”). Further, this term appears first in the registered mark and as such, it is most likely to be impressed in purchasers’ memories. Presto Prods., Inc. v. Nice-Pak Prods. Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most Serial No. 88160233 - 12 - likely to be impressed upon the mind of a purchaser and remembered”). See also Palm Bay Imp., 73 USPQ2d at 1692 (“The presence of this strong distinctive term as the first word in both parties’ marks renders the marks similar, especially in light of the largely laudatory (and hence non-source identifying) significance of ROYALE.”). Applicant’s mark adopts the most distinctive wording of the registered mark WYNN’S GRAIN & SPICE, adding the preceding title “MS” and the descriptive, disclaimed wording “SWEET & SAVORY CREATIONS.” The term “MS. WYNN’S” in Applicant’s mark is also its most distinctive portion, given its prominent size and position as the first term in the mark. Presto Prods., 9 USPQ2d at 1897. The less prominent wording “SWEET & SAVORY CREATIONS” describes the sauces and fish fry batters offered under the mark. The marks are similar in appearance inas- much as both include WYNN’S as their dominant feature. The marks are also similar in sound due to the presence of WYNN’S as the most distinctive feature of both. “[T]he presence of an additional term in the mark does not necessarily eliminate the likelihood of confusion if some terms are identical.” In re Mighty Leaf Tea, 94 USPQ2d at 1260-61 (finding ML in standard characters confusingly similar to ML MARK LEES in stylized form). See also Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1162 (finding STONE LION CAPITAL confusingly similar to LION and LION CAPITAL); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (VANTAGE TITAN likely to be confused with TITAN); In re Fiesta Palms LLC, 85 Serial No. 88160233 - 13 - USPQ2d 1360, 1367 (TTAB 2007) (affirming refusal to register CLUB PALMS MVP based on prior registration of MVP, finding consumers “likely to believe that the CLUB PALMS MVP casino services is simply the now identified source of the previ- ously anonymous MVP casino services”); In re Chica Inc., 84 USPQ2d 1845, 1848-49 (TTAB 2007) (affirming refusal to register CORAZON BY CHICA & Design based on a registration of CORAZON in stylized format, stating “to many consumers, appli- cant’s mark for the identical word ‘Corazon’ followed by the phrase ‘BY CHICA’ will simply be viewed as the identification of the previously anonymous source of the goods sold under the mark CORAZON”). Applicant’s mark also includes the design of the silhouette of a lady, to the right of the wording. This design draws additional attention to the wording “MS. WYNN’S” and suggests a stylized depiction thereof. It is settled that where, as here, marks are comprised of both words and a design, the words are nor- mally accorded greater weight, in part because consumers are likely to remember and use the word(s) to request the goods. In re Viterra 101 USPQ2d at 1911 (“the verbal portion of a word and design mark likely will be the dominant portion”); In re Appetito Provisions Co. Inc., 3 USPQ2d 1553, 1554 (TTAB 1987) (holding that “if one of the marks comprises both a word and a design, then the word is normally accorded greater weight because it would be used by purchasers to request the goods or ser- Serial No. 88160233 - 14 - vices” and “because applicant’s mark shares with registrant’s mark that element re- sponsible for creating its overall commercial impression, the marks are confusingly similar”). With regard to meaning or connotation, Applicant argues that its mark connotes a woman while, in contrast, the registered mark connotes “a man with or without grain and spice.” (6 TTABVUE 12.) We agree to the extent that Applicant’s mark suggests a female individual named Wynn who is the source of fish fry batter mix and sauces. However, nothing in the registered mark or the evidence of record restricts the WYNN’S GRAIN & SPICE mark’s connotation to a particular gender or otherwise supports Applicant’s speculation as to its meaning. We find the registered WYNN’S GRAIN & SPICE mark connotes an individual of unspecified gender who is the source of breading, batter, spices and marinades. There is no support in the record for the position that WYNN’S “has one meaning when used with” Applicant’s goods and “a second and different meaning when used with” the goods in the cited registration. In re Embiid, 2021 USPQ2d 577, at *21 (TTAB 20121). The connotations of the marks, while not identical, are nonetheless quite similar. We acknowledge that the presence of additional wording and design in Applicant’s mark and GRAIN & SPICE in the registered mark differentiate Serial No. 88160233 - 15 - them visually and aurally from each other. These points of distinction, however, do not sufficiently diminish the strong similarities in connotation and overall commer- cial impression engendered by these two marks. We further note the Examining At- torney’s evidence that companies market products under marks such as DASH, BARR’S and CUBBISON’S with or without the preceding title MRS. Thus, consumers may be accustomed to viewing similar marks alternately preceded by a title such as MS. emanating from a common source. Based upon the above analysis, we find that is more similar to the WYNN’S GRAIN & SPICE mark than dissimilar in terms of appearance, sound, and particularly connotation and commercial impression. As a result, consum- ers encountering these marks could mistakenly believe the former is a variation on the registered mark used to identify a particular line of products for fish fry batter mix, but nonetheless emanating from a common source. “Similarity in any one of these elements may be sufficient to find the marks con- fusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted); In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018); In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988) (“In appro- priate cases, a finding of similarity as to any one factor (sight, sound or meaning) Serial No. 88160233 - 16 - alone ‘may be sufficient to support a holding that the marks are confusingly similar’”) (citations omitted)). Therefore, even if the marks are only somewhat similar in ap- pearance and sound, it would not necessarily mean there was no likelihood of confu- sion. For these reasons, we find that the marks are similar. The first DuPont factor thus also weighs in favor of finding a likelihood of confusion. D. Consumer Sophistication Under the fourth DuPont factor, we consider “[t]he conditions under which and buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 177 USPQ at 567. Applicant asserts that The purchasers are consumers that are experienced, knowledgeable pur- chasers with respect to the food that they want to purchase and con- sume. Neither all purpose sauces for fish excluding marinades and sea- soned fish fry batter mix for frying fish and pre-mixed breading, mixes for making breading, pre-mixed batter, mixes for making baking bat- ters, marinade, marinade mixes, biscuit mix, spices, spice blends, and spices for rotisseries are likely to be confused because purchasers for food and beverage are highly sophisticated and discriminating purchas- ers in selecting the food they want to consume. These are not “impulse” buyers or under conditions which impulse sales are made. (6 TTABVUE 9.) However, Applicant’s goods and the goods identified in the cited registration are not restricted by trade channel to professionals, restaurants or food services and will Serial No. 88160233 - 17 - be available to all purchasers interested in these goods.5 While some purchasers may be discriminating and exercise care in their selection, others may not exercise as great a degree of care. The mere fact that purchasers may be able to distinguish between the products is immaterial. As noted above, the issue is confusion as to the source of the products, and the standard of care is that of the least sophisticated potential pur- chaser. Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1163 (cited in In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (“Board precedent requires our deci- sion to be based on the least sophisticated potential purchasers.”)). In the absence of any evidence relating to the degree of care purchasers exercise, the similarity of the marks and relatedness of the goods outweigh Applicant’s asser- tion that purchasers are sophisticated or careful in their purchases. See HRL Assocs., Inc. v. Weiss Assocs., Inc., 12 USPQ2d 1819, 1823 (TTAB 1989), aff’d, Weiss Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks outweigh sophisticated purchasers, careful purchasing decision, and expensive goods). Moreover, were we to accord a level of sophistication to the pur- chasers of the goods at issue, even sophisticated purchasers are not immune from source confusion. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 5 While neither identification of goods imposes a price restriction, the Examining Attorney has introduced evidence that comparable products offered by third parties and discussed above are priced between $3 and $30. (December 10, 2020 Denial of Request for Reconsider- ation at 12-31, 34-49, 52-55; 8 TTABVUE 19). Serial No. 88160233 - 18 - F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminat- ing purchasers...are not infallible.”)). The fourth DuPont factor is neutral. E. Actual Confusion and Length of Contemporaneous Use Applicant argues that it has been using its mark since January 1, 2020 without any confusion and “[s]ince there is no actual confusion, there is insufficient similarity with respect to this DuPont factor to find a likelihood of confusion under Section 2(d).” (6 TTABVUE 14.) We do not accord any weight to Applicant’s contention, unsupported by any evi- dence, that there have been no instances of actual confusion despite contemporaneous use of the respective marks. The Federal Circuit has addressed the question of the weight to be given to an assertion of no actual confusion by an applicant in an ex parte proceeding: With regard to the seventh DuPont factor, we agree with the Board that Majestic’s uncorroborated statements of no known instances of actual confusion are of little evidentiary value. See In re Bissett-Berman Corp., 476 F.2d 640, 642, 177 USPQ 528, 529 (CCPA 1973) (stating that self- serving testimony of appellant’s corporate president’s unawareness of instances of actual confusion was not conclusive that actual confusion did not exist or that there was no likelihood of confusion). A showing of actual confusion would of course be highly probative, if not conclusive, of a high likelihood of confusion. The opposite is not true, however. The lack of evidence of actual confusion carries little weight, [citation omit- ted], especially in an ex parte context. In re Majestic Distilling, 65 USPQ2d at 1205. Accordingly, while examples of actual confusion may point toward a finding of a likelihood of confusion, an absence of such evidence is not compelling in support of a Serial No. 88160233 - 19 - finding of no likelihood of confusion, particularly in an ex parte proceeding in which the owner of the cited registration cannot appear. Thus, we cannot conclude from the lack of instances of actual confusion during the very short time during which the marks have been contemporaneously used that confusion is not likely to occur.6 The seventh DuPont factor is neutral. F. Court Decisions Involving Different Marks Finally, Applicant cites to decisions from various circuit courts involving likeli- hood of confusion between marks and goods or services that are dissimilar from the marks and goods at issue herein. We are not privy to the facts or records of these decisions and are not bound by court determinations involving these disparate marks, goods and services. “It has been said many times that each case must be decided on its own facts.” In re Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB 2010) (internal citation omitted); see also In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior registrations had some characteristics sim- ilar to Nett Designs’ application, the PTO’s allowance of such prior registrations does not bind the Board or this court.”). 6 Similarly, we are not persuaded by Applicant’s conclusory statement, without evidentiary support, that because its mark “is a house or family mark, there is insufficient similarity with respect to this DuPont factor to find a likelihood of confusion under Section 2(d).” (6 TTABVUE 15.) To be clear, a “family of marks” may be established in an inter partes pro- ceeding where there is evidence that a group of marks having a shared characteristic are advertised and promoted together. See J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889, 1891 (Fed. Cir. 1991). There must be recognition by the public that the shared characteristic (or “family surname”) is indicative of a common origin. Id. However, assertion of a family of marks in an ex parte matter by an applicant or examining attorney is generally inapplicable. See, e.g., In re Hitachi High-Techs. Corp., 109 USPQ2d 1769, 1772 (TTAB 2014). Serial No. 88160233 - 20 - While we have considered the likelihoood of confusion cases cited by Applicant, we do not find the nature of their comparison of the marks applicable here. We do not agree that the other cases offer helpful guidance in our analysis “because the critical facts of different cases almost always differ substantially,” as they do here. In re Gen. Mills IP Holdings II, LLC, 124 USPQ2d 1016, 1027 (TTAB 2017). Conclusion Having considered all of the evidence and argument of record, we conclude on this record that Applicant’s goods are related to the goods in the cited registration, and that there is sufficient evidence that the goods travel in common channels of trade to overlapping purchasers. The registered mark and Applicant’s mark are more similar than dissimilar, particularly in connotation and overall commercial impression, and as result, confusion is likely. Consumer sophistication, where it exists, is insufficient to overcome the relatedness of the goods and similarities between the marks. Decision: The refusal to register under Trademark Act § 2(d) is affirmed.