IP Law Daily, TRADEMARK—TTAB: CITRUS CLUB mark refused registration for likely confusion with CITRUS KITCHEN mark, (Oct 21, 2020)

By Randall Holbrook, J.D.

Cocktail lounge services associated with applied-for CITRUS CLUB mark were similar to restaurant services offered under registered CITRUS KITCHEN mark, risking the mistaken belief by consumers that they emanated from the same source.

Registration was properly denied to the mark CITRUS CLUB, for cocktail lounge services, because of likelihood of confusion with the existing registration for CITRUS KITCHEN, for restaurant services, the Trademark Trial and Appeal Board has decided. The marks were similar, used with similar services, and directed at legally identical consumers through identical channels of trade (In re Citrus Club by Dewberry 334 Meeting Street, LLC, October 14, 2020, Wellington, T.).

Citrus Club by Dewberry 334 Meeting Street, LLC sought registration of the standard character mark CITRUS CLUB for use with cocktail lounge services in International Class 43, disclaiming the word "club." The examining attorney denied registration based on a likelihood of confusion with two registered marks, the standard character mark CITRUS KITCHEN and a logo incorporating those same words, both issued to the same entity and both for "restaurant services" in International Class 43, disclaiming the word "kitchen." The TTAB considered only the standard character mark because that would be dispositive of the entire issue and reviewed the DuPont factors for which there was evidence of record.

Similarity of services. The Board said that cocktail lounges and restaurants have a close and intrinsic relationship because both serve food and drinks in a sit-down setting and both are frequently offered by the same entity at the same physical location and under the same mark, as in a hotel. Cocktail lounges also can be found inside of restaurants.

Channels of trade and classes of consumers. Citrus Club argued that its channels of trade and consumers were very separate. It operated an upscale lounge atop a hotel in North Carolina serving only adults and only open in the evenings, while the registered marks belonged to a restaurant with its only location in Rancho Cucamonga, California, open during the day and serving families. The Board stated that these facts did not appear in the application or cited registration, so the arguments based on such nonexisting restrictions were not persuasive. The Board would not read in restrictions which did not appear in the applications or registrations themselves. Because the application and registration were both unrestricted in terms of geography or the types of services offered, this factor supported a finding of confusion.

Similarity of marks. The marks were similar because both began with the word "citrus" and concluded with a descriptive or generic word that had been disclaimed. They were visually and aurally similar and had similar commercial impressions, so this factor weighed in favor of confusion.

Weakness of the common element. Citrus Club argued that the shared element of the marks "citrus" was common and weak, and thus entitled to limited protection, citing other registrations including that word. The Board held that most of the other registrations were irrelevant because they were for services unrelated to restaurants. Although there could be a suggestive element to the use of the term "citrus" in connection with restaurant or cocktail lounge services, there was no reason in the record to find it so commercially or inherently weak as to allow the registration of the CITRUS CLUB mark, and this factor was considered neutral.

Because the marks were similar, the services were similar, and the channels of trade and classes of consumers were the same, the Board affirmed the examining attorney’s denial of registration.

This case is Serial No. 87860519.

Attorneys: Taylor Duenas for the USPTO. Andrew C. Stevens (Arnall Golden Gregory LLP) for Citrus Club by Dewberry 334 Meeting Street, LLC.

Companies: Citrus Club by Dewberry 334 Meeting Street, LLC

Cases: Trademark GCNNews USPTO