Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE GOLDEN GRIDDLE PANCAKE HOUSE LIMITED
Serial No. 748,436
August 14, 1990
Daniel G. Lawton of Rudnick & Wolfe for applicant
Trademark Examining Attorney
Law Office 6
(Mary Sparrow, Managing Attorney)
Before Rooney, Cissel and Seeherman
Opinion by Rooney
An application was filed to register the mark GOLDEN GRIDDLE PANCAKE HOUSE (the words, "pancake house", disclaimed) for restaurant services. Registration was refused under Section 2(d) in view of a registration of the mark GOLDEN GRIDDLE for table syrup. [FN1] Applicant has appealed.
Turning first to the goods, we repeat what has been stated numerous times. It is not necessary to a finding of likelihood of confusion that goods be the same or even competitive. It is quite sufficient for that purpose that there is a relationship between them such that, if they were to be seen by the same customers, bearing the same or a similar mark, they would be attributed to the same source. See Oxford Pendaflex Corporation v. Anixter Bros., Inc., 201 USPQ 851 (TTAB 1978).
We are also aware of the admonition that there is no per se rule which mandates a finding that confusion is likely whenever restaurant services and foods are sold under similar marks. See Merritt Foods Co. v. Americana Submarine, 209 USPQ 591 (TTAB 1980). However, there are cases where the relationship is so clear that such a nexus is almost certain to be assumed. We believe that to be the case here.
Applicant's mark makes it clear that its restaurant serves pancakes and, no doubt, pancake (or table) syrup, as well. There is an undeniable connection between the goods of the registrant and the services of applicant. In addition to this clear connection is the fact that restaurants frequently package certain of their products for retail sale. The third-party registrations cited by the Examining Attorney are evidence that companies performing restaurant services may also sell a variety of goods under the same mark. As a result, we are of the opinion that, if the particular goods identified by registrant were to be sold under a mark which is the same as or similar to that which applicant uses to identify its services, confusion as to source would occur.
As to the marks under consideration, they are identical with the exception of the addition to applicant's mark of the descriptive words, PANCAKE HOUSE. Applicant argues that the additional portion of its mark is enough to distinguish it from registrant's and reminds us that the fact that these words are disclaimed would not be known to the public. While that is no doubt true, it is also true that the public would be well aware that the term, PANCAKE HOUSE, is descriptive of the featured, although not necessarily the only, food on the menu. Because the term, PANCAKE HOUSE, is descriptive and is frequently used to denote this type of restaurant, as is evidenced by the LEXIS/NEXIS material submitted by the Examining Attorney, potential customers would not expect that phrase to distinguish one such restaurant from another but would look to any other words in the name as the distinguishing feature or source indicator. In the applicant's mark, those words are GOLDEN GRIDDLE, which happen to be the identical words forming registrant's mark. This is not to say that PANCAKE HOUSE is not an integral part of applicant's mark and may be ignored. That is simply not so. But, those words must be relegated to a less dominant position on the scale for comparison of the two marks. See Giant Food Inc. v. Nation's Food Service Inc., 710 F2d 1565, 218 USPQ 390 (CAFC 1983) and In re National Data Corporation, 735 F2d 1056, 224 USPQ 749 (CAFC 1985). Since PANCAKE HOUSE denotes the fare to be served in the restaurant, it would be logical to assume that a GOLDEN GRIDDLE syrup would have the same service as a GOLDEN GRIDDLE PANCAKE HOUSE.
*2 Unlike the case cited by applicant, wherein CATFISH BOBBERS for fish and BOBBER for restaurant services were found to create different commercial impressions [In re Farm Fresh Catfish Co., 231 USPQ 495 (TTAB 1986) ], we believe that the commercial impressions in this case are quite alike. While CATFISH BOBBERS clearly suggests fish or fishing, the term, BOBBER, without more, doesn't provide such a suggestion for restaurant services. Applicant's mark, on the other hand, makes it clear that applicant's restaurant serves pancakes and, inasmuch as registrant's syrup is a complementary item, a similar mark used thereon would easily allow a connection to be made between them.
We are not persuaded to a different result by the third-party registrations listed by applicant. As the Examining Attorney has indicated, merely listing registration numbers with the marks and goods allegedly found therein cannot make the registrations of record. See In re Duofold, Inc., 184 USPQ 638 (TTAB 1974). However, even if they had been of record, they would not serve to prove that registrant's mark is weak. Only one of the listed registrations contains both the words, GOLDEN and GRIDDLE, but that mark also contains another word which, as the Examining Attorney pointed out, is a unique and arbitrary term which serves to substantially distinguish it. Thus, there is no evidence of record to lead us to believe that registrant's GOLDEN GRIDDLE mark is weak.
Accordingly, we find the refusal to register to have been properly made and it is hereby affirmed.
Members, Trademark Trial and Appeal Board
FN1. Registration No. 939,986 issued August 1, 1972, Section 8 affidavit accepted, Section 15 affidavit filed.