Chief

This Opinion is Not a
Precedent of the TTAB

Mailed: July 18, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Chief’s Chill-Out, LLC
_____

Serial No. 87573924
_____

Robert Varkonyi of Zagrebelsky Law PA,
for Chief’s Chill-Out, LLC.

Bernice Middleton, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.

_____

Before Taylor, Goodman and Larkin,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:

Chief’s Chill-Out, LLC (“Applicant”) seeks registration on the Principal Register

of the mark CHIEF’S CHILL-OUT (in standard characters) for

Providing of food and beverages, namely, frozen
confections, shaved ice, snow cones, Hawaiian ice, soft
serve ice cream, ice cream cones, sundaes, shakes, floats,
candy, soft drinks, and water, via a mobile truck, in
International Class 43.1

1 Application Serial No. 87573924 was filed August 18, 2017, under Section 1(a) of the
Trademark Act, 15 U.S.C. §1051(a), claiming first use anywhere and first use in commerce
since at least as early as August 6, 2016. Page references to the application record refer to
Serial No. 87573924

The Trademark Examining Attorney has refused registration of Applicant’s mark

under Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that

Applicant’s mark so resembles the registered mark CHILL OUT (in standard

characters)2 for “Fast-food restaurant services,” in International Class 43, as to be

likely to cause confusion or mistake, or to deceive. 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. Likelihood of Confusion

Our determination under Section 2(d) is based on an analysis of all of the

probative facts in evidence that are relevant to the factors bearing on likelihood of

confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567

(CCPA 1973). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201,

1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations

are the similarities between the marks and the similarities between the goods or

services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192

USPQ 24 (CCPA 1976). These factors, and the other relevant DuPont factors now

before us, are discussed below. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127

USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342,

the online database 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. 4473964, issued January 28, 2014.

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Serial No. 87573924

94 USPQ2d 1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant

to every case, and only factors of significance to the particular mark need be

considered.”)); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242

(TTAB 2015) (“While we have considered each factor for which we have evidence, we

focus our analysis on those factors we find to be relevant.”).

A. Similarity or Dissimilarity of the Respective Services

We turn first to the DuPont factor regarding the similarities or dissimilarities

between the respective services as identified in the application and the cited

registration. See Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937,

16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of

registrability of an applicant’s mark must be decided on the basis of the identification

of goods [or services] set forth in the application regardless of what the record may

reveal as to the particular nature of an applicant’s goods, [or services] the particular

channels of trade or the class of purchasers to which the sales of goods [or services]

are directed.”). See also Paula Payne Prods. v. Johnson Publ’g Co., 473 F.2d 901, 177

USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of likelihood of

confusion must be decided on the basis of the respective descriptions of goods.”).

Applicant’s services are “Providing of food and beverages, namely, frozen

confections, shaved ice, snow cones, Hawaiian ice, soft serve ice cream, ice cream

cones, sundaes, shakes, floats, candy, soft drinks, and water, via a mobile truck,”

while Registrant’s services are “Fast-food restaurant services.” Applicant has not

disputed the relatedness of the services.

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Serial No. 87573924

The Examining Attorney submitted evidence that “most food trucks emphasize

affordable casual dining,” that a mobile dining industry trend is “super-fast menu

offerings,” and that food trucks “proved that fast food need not be junk.”3 The

Examining Attorney’s evidence also indicates that among the franchise and

restaurant chains “jumping into the food-truck niche” are Dunkin Donuts, Starbucks,

White Castle, In-N-Out Burger, Taco Bell and McDonalds.4 The Examining Attorney

provided one example of a fast food restaurant offering frozen desserts, shakes and

frosties.5

We find this evidence establishes that the providing of food and beverages by a

mobile truck and fast food restaurant services are related. This DuPont factor weighs

in favor of a finding of likelihood of confusion.

B. Strength or Weakness of the Registered Mark

The sixth DuPont factor requires us to consider the number and nature of similar

marks in use on similar goods or services. DuPont, 177 USPQ at 567.

For this factor, third-party registrations can show ‘“that some segment of the

composite marks which both contesting parties use has a normally understood and

well recognized descriptive or suggestive meaning, leading to the conclusion that that

3 January 31, 2019 Denial of Request for Reconsideration at TSDR 10-11, 16.
4 Id. at TSDR 11.
5 Id. at TSDR 2-9. The website printouts are for Star’s Drive-in showing the offering of shakes,
frosties, tropical freezes and ice cream. The signficance of the printout and the connection to
Registrant Stars Restaurant has not been explained by the Examining Attorney in denying
reconsideration, but in her brief, she mentions this evidence in connection with the first
DuPont factor stating “Registrant also promotes frozen sweets.” 9 TTABVUE 3.

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Serial No. 87573924

segment is relatively weak.’” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,

115 USPQ2d 1671, 1674 (Fed. Cir. 2015) (quoting 2 J. THOMAS MCCARTHY,

MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION (“MCCARTHY”)

§ 11:90). Third-party use evidence can show “that customers have become so

conditioned by a plethora of such similar marks that customers ‘have been educated

to distinguish between different [such] marks on the bases of minute distinctions.”’

Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d

1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (citing MCCARTHY § 11:88).

Applicant argues that “the term ‘CHILL OUT’ is a suggestive or descriptive term

in a crowded area, commonly used by restaurants or in the names of restaurants.” 7

TTABVUE 23. Applicant submits that the “number and type” of third-party evidence

“show[s] a pattern and practice of recognition of differences by the Patent and

Trademark Office and the community of trademark holders” of this term. Id. at 17.

Applicant contends that CHILL OUT is “suggestive of products and services provided

by restaurants.” Id. Applicant submitted both third-party registration and use

evidence to support its arguments. The third-party registration evidence consisted of

Trademark Electronic Search System (TESS) copies of registrations, including

cancelled registrations, containing the term “chill out,” as well as TESS printouts of

third party applications, some abandoned.6

6Applicant incorporated a copy of Registrant’s specimen (from Star’s Drive-in) in its appeal
brief to show that CHILL OUT relates to “slushies and drinks, i.e. cold liquids” and describes
a quality or characteristic of the goods offered in connection with Registrant’s fast food
services. 7 TTABVUE 10. This evidence was not submitted during prosecution. The record in
the application should be complete before a notice of appeal is filed. Trademark Rule 2.142(d),

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Serial No. 87573924

We note, however, that TESS printouts of applications filed in the Office are not

evidence of anything except that the applications were filed on a certain date, In re

Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016), and that TESS printouts of

cancelled registrations have no probative value other than to show that the

registrations once issued.7 In re Kysela Pere et Fils Ltd., 98 USPQ2d 1261, 1264

(TTAB 2011). We also note that many of the third-party registrations submitted by

Applicant during prosecution are unrelated to the food service industry (i.e., food

products or restaurant services) and are of limited probative value as to the question

of weakness. In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed.

Cir. 2017) (disregarding third-party registrations for other types of goods where the

proffering party had neither proven nor explained that they were related to the goods

in the cited registration). Although Applicant has highlighted in its brief third-party

registrations for wine, dietary supplements, thermal insulated bags, beverage

containers, and double walled cups and tumblers, Applicant has not explained how

these goods are related to the services at issue here, and we do not find these

registrations particularly probative.8 Cf. Omaha Steaks Int’l, Inc. v. Greater Omaha

Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1694 (Fed. Cir. 2018) (no evidence in

37 C.F.R. § 2.142(d). The Examining Attorney did object, but she also did not address the
evidence in her brief, and thus, we do not consider it.
7 Applicant also included a Section 66 registration which contains the term “chill out.”
However, this registration possesses little, if any, probative value because it did not require
proof of use in commerce to be issued and therefore it is not evidence that the registered mark
has ever been encountered by consumers in the marketplace. In re Mucky Duck Mustard Co.,
6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988).
8Two CHILL OUT registrations listed by Applicant in the brief at 7 TTABVUE 17 are owned
by the Registrant, (one is the cited mark), and are not listed in the table below.

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Serial No. 87573924

the record to show relatedness of goods, “meat,” to services for oriental foods, alcoholic

beverages, café food, or grocery delivery services).

The most relevant third-party registrations for food related goods and services are

as follows:

Registration No. Mark Goods or Services

Reg. No. 5397158 shaved ice confections

Reg. No. 4864552 non-alcoholic drink
mixes” non-alcoholic
cocktail bases; non-
alcoholic cocktails, non-
alcoholic cocktails,
namely mocktails

Reg. No. 4900293 non-alcoholic cocktail
mixes

Reg. No. 4819392 frozen yogurt shop
services in the nature of a
restaurant; ice cream
shop services in the
nature of a restaurant
Reg. No. 4331928 CHILL OUT MAN HAVE for goods and services that
A BEER include beer, bar services,
and restaurant services
Reg. No. 5119198 CHILL OUT. EAT alcoholic cocktails in the
VODKA form of frozen pops;
Liquor in ice cream form

Although these marks share the term “Chill Out,” the majority of them also have

additional terms and/or designs which create different connotations and commercial

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Serial No. 87573924

impressions from those conveyed by Applicant’s and Registrant’s marks. As to the C°

and design CHILL OUT mark for shaved ice confections, which involves standalone

use of the term CHILL OUT, this sole third-party registration does not establish the

conceptual weakness of CHILL OUT. See e.g., Jack Wolfskin Ausrustung Fur

Draussen GmbH v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d

1129, 1136 (Fed. Cir. 2015) (third-party registration and use evidence was

“voluminous”); In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018)

(four third-party registrations of varying probative value (two for non-identical

services and the other two for non-identical terms) and no third-party uses considered

to be “a far cry from the large quantum of evidence of third-party use and third-party

registrations that was held to be significant” in Jack Wolfskin and Juice Generation).

As to the third-party uses, Applicant, in its brief, referenced the submitted

evidence of eighteen uses of “chill out,” or “chill,” with most showing use of the term

as part of the name of the food establishment:9

9 April 30, 2018 Response to Office Action at TSDR 37 and 45; December 19, 2018 Request
for Reconsideration at TSDR 7, 9, 24, 30, 42, 46, 50 58, 62, 72, 77, 81, 83, 102. Some of the
evidence provided was in the form of truncated Google search results, rather than copies of
webpages cited in the search results. However, the Examining Attorney did not object to
them, so we have considered the search results for whatever probative value they may have.
The reference to the “Chill Out Hut” from a Google search result shows a location in Montego
Bay, Jamaica, with limited context to clearly indicate that there is also a location in the
United States. December 19, 2018 Request for Reconsideration at TSDR 76. Tropic Chill and
Deli was not listed by Applicant in its brief but was listed among the Google search results.
Id. at TSDR 81. The location in the record for Megabite Chillout Lounge was not identified
on appeal or during prosecution. The references to “M[&]S Shaved Ice”
and “Gil’s Beach Club” relate to services provided (happy hour) or the goods offered (shaved
ice), not the food establishments’ names. The reference to “chill out” in connection with Dairy
Queen is the title of an article in restaurantnews.com describing Dairy Queen’s Candy Cane
Chill blizzard product. Id. at 39-40. Chill Out in San Antonio, TX is listed as a “closed”

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Serial No. 87573924

However, based on these uses, we are not convinced that Registrant’s mark is in

a crowded field of similar marks, or that Registrant’s mark is weak in the vast

business on the submitted Yelp pages. Id. at 24-29. The nature of “Chill Out Inc.’s” business
is unclear as the Linked In listing only shows “Food & Beverages.” Id. at 50.

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Serial No. 87573924

restaurant industry. See Juice Generation, 115 USPQ2d at 1673 n.1 and 1674 (26

relevant uses or registrations were provided as examples by the court, and the court

stated that a “substantial number” of the third-party marks in the record were for

restaurant services and food products); 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); Steve’s Ice Cream Inc. v. Steve’s Famous Hot Dogs, 3

USPQ2d 1477 (TTAB 1987) (based on a record that showed 226 businesses, 137

restaurants and 89 food stores using the term STEVE’s, consumers could distinguish

marks incorporating STEVE’s based on small distinctions); cf. 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 in the record). We note that of the third-party uses,

very few of the marks identified are as similar to the involved marks as CHIEF’S

CHILL OUT and CHILL OUT are to each other. We find that consumers are not so

accustomed to seeing CHILL OUT in restaurant names that they have been

conditioned to look to other elements of the marks as a means of distinguishing the

source of the respective food establishments. Accordingly, this DuPont factor is

considered neutral.

C. Similarity or Dissimilarity of the Marks

We now consider the similarities or dissimilarities of the marks. We must compare

the marks in their entireties as to appearance, sound, connotation and commercial

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Serial No. 87573924

impression to determine the similarity or dissimilarity between them. Palm Bay

Imps., 73 USPQ2d at 1690 (quoting DuPont, 177 USPQ at 567). The test is not

whether the marks can be distinguished when subjected to a side-by-side comparison,

but rather 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. Coach Servs. Inc. v. Triumph Learning, LLC,

668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation omitted).

Applicant’s mark is CHIEF’S CHILL-OUT and Registrant’s mark is CHILL OUT.

The marks differ in sound and appearance to the extent that Applicant’s mark

includes the term CHIEF’S but are similar in sound and appearance to the extent

that both marks contain the term CHILL-OUT/CHILL OUT. The addition of the

hyphen in Applicant’s mark is not significant. Mag Instrument Inc. v. Brinkmann

Corp., 96 USPQ2d 1701, 1712 (TTAB 2010) (hyphen did not distinguish MAGNUM

from MAG-NUM); Goodyear Tire & Rubber Co. v. Dayco Corp., 201 USPQ 485, 489

n.4 (TTAB 1978) (FAST-FINDER with hyphen is in legal contemplation substantially

identical to FASTFINDER without hyphen).

As to connotation of the term CHILL-OUT/CHILL OUT, Applicant states that “the

phrase ‘chill out’ has been defined as ‘relax,’ ‘calm down,’ ‘to take it easy,’ ‘to relax,’

‘to have a good time,’” is “commonly shortened to chill,’” and also means “cool” or

“cold.” 7 TTABVUE 11, 23. In support, Applicant references the dictionary definitions

for “chill out” and “chill” submitted during examination. “Chill out” is a unitary term

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Serial No. 87573924

that means “: to calm down : go easy : relax.”10 “Chill” may be a shortened form for

“chill out.”11 A synonym for “chill out” is “cool” or “cool off.”12 Applicant also submitted

definitions of the term “chill,” with the most relevant definitions, “coldness,” “to affect

with cold” “make chilly,” or “to make cool.”13

Applicant contends that “chill out” is “commonly used in restaurant and lounges”

and describes “a quality or characteristic of a successful restaurant, providing a good,

relaxing environment with pleasant service that calms the consumer.”14 7 TTABVUE

10-11. Applicant also states that because the phrase “chill out” is “another phrase for

cool or cold,” it is suggestive of a quality of frozen products offered by the restaurants,

or describes a quality of the restaurant services or the products sold, i.e., products

that are cold or chilled.15 Id. Applicant submitted a few website printouts during

10 April 30, 2018 Response to Office Action at TSDR 7, 8, 10, MERRIAM-WEBSTER
DICTIONARY, merriam-webster.com; AMERICAN HERITAGE IDIOMS DICTIONARY
(2002, 2001, 1995), dictionary.com; New Dictionary of Cultural Literacy (3d ed. 2005),
dictionary.com.
11April 30, 2018 Response to Office Action at TSDR 7, 8, New Dictionary of Cultural Literacy
(3d ed. 2005), dictionary.com; AMERICAN HERITAGE IDIOMS DICTIONARY (2002, 2001,
1995), dictionary.com.
12April 30, 2018 Response to Office Action at TSDR 6, COLLINS ENGLISH DICTIONARY
(2012), dictionary.com. The Board may take judicial notice of words listed in a thesaurus. In
re Wells Fargo & Company, 231 USPQ 116, 117 (TTAB 1986), WEBSTER’S NEW WORLD
ROGET’S A-Z THESAURUS (1999), (thesaurus.yourdictionary.com, accessed July 15, 2019).
13 April 30, 2018 Response to Office Action at TSDR 2-3.
14See e.g., December 19, 2018 Request for Reconsideration at TSDR 75, 77, 79, 81. Google
search results excerpts, see n.9, include: (“Chill out with some drinks and snacks,” “160 best
chill out spots,” “Chili-E-Dogs a place to fuel up and chill out,” “Chill out at this laid back
margarita bar,” “Chill out at Grove while we concoct a cocktail for your pleasure,” “Food
Destinations – Best Place to Chill Out,” “The Lemon Bar is a great place to chill out after you
hang 10,” “Perk up or chill out at Re:fuel, the 24/7 one-stop shop for snacks and quick bites
at Aloft.”).
15Id. at TSDR 9 (webpage) 39 (webpage), (“Chill out with delicious shaved ice”; “Chill Out
with the Dairy Queen System this Holiday Season”). Applicant also submitted some Google

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Serial No. 87573924

examination to show that “Chill out” has been used in connection with chilled

products i.e., frozen desserts.16

While the Examining Attorney agrees with Applicant that the connotation for

“chill out” is “a spin on an idea or outcome of relaxation,” that is, to relax or take it

easy, she disagrees that “chill out” is descriptive of frozen dessert related services.

Instead, the Examining Attorney submits that “chill out” is suggestive in connection

with Applicant’s and Registrant’s services, has a “double meaning,” is “a twist for an

already suggestive term,” and is a clever way to “highlight the menu offerings of

various frozen confectionery.” 9 TTABVUE 4. We find that, as to the term CHILL-

OUT/CHILL OUT, the marks also have a shared connotation and commercial

impression.

As stated, we must consider the marks in their entireties. We think this case is

most similar to those cases involving the addition of a house mark or trade name to

a term that is common to the involved marks.

“It has long been held that the addition of a trade name or house mark to a

registered mark does not generally avoid confusion.” In re Fiesta Palms LLC, 85

USPQ2d 1360, 1364 (TTAB 2007) (citing Menendez v. Holt, 128 U.S. 514, 521 (1888)).

“Where the marks are otherwise virtually the same, the addition of a house mark …

search results, see n.9, that reference “chill out” in connection with frozen or cold products.
Id. at TSDR 44 and 79 (“Chill Out this Summer at the Best Ice Cream Shops in Tampa,”
“Chill out with Tulsa’s best milkshakes”; “Chill out this week with free ice cream from 7-
Eleven”).
16April 30, 2018 Response to Office Action at TSDR 23, 27, 34 (“9 Cold Desserts to Chill Out
with this Summer” (webpage); “Frozen Desserts: Chill Out Take the heat off with easy frozen
desserts” (webpage)).

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Serial No. 87573924

is more likely to add to the likelihood of confusion than to aid to distinguish the

marks.” Key West Fragrance & Cosmetic Factory, Inc. v. The Mennen Co. 216 USPQ

168, 170 (TTAB 1982). On the other hand, “where there are some recognizable

differences in the asserted conflicting product marks or the product marks in question

are highly suggestive or merely descriptive or play upon commonly used or registered

terms, the addition of a housemark and/or other material to the asserted conflicting

product mark has been determined sufficient to render the marks as a whole

sufficiently distinguishable.” In re Christian Dior, S.A., 225 USPQ 533, 534 (TTAB

1985) (citations omitted) (applicant’s mark LE CACHET DE DIOR similar to the

registered mark CACHET). See Rockwood Chocolate Co. v. Hoffman Candy Co., 372

F.2d 552, 152 USPQ 599, 602 (CCPA 1967) (ROCKWOOD BAG-O-GOLD for candy

not confusingly similar to CUP-O-GOLD for candy).

As stated, both marks contain the identical term CHILL-OUT/CHILL OUT. The

other term in Applicant’s mark, “chief,” is defined as “the head or leader of an

organized body of people; the person highest in authority.”17 The addition of the term

CHIEF’S to Applicant’s mark appears in a manner to suggest proprietorship in an

individual with the nickname or title of Chief. The possessive CHIEF’S in Applicant’s

mark would be viewed as providing additional information as to the source of the

services, i.e., that they come from an individual with the nickname or title, similar to

17 We take judicial notice of this definition. THE RANDOM HOUSE UNABRIDGED
DICTIONARY (2019) (dictionary.com, accessed July 1, 2019). The Board may take judicial
notice of dictionary definitions, including online dictionaries that exist in printed format. 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); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d
1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).

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Serial No. 87573924

a house mark or trade name. Applicant agrees that CHIEF’s is a reference to the

owner of the service. 7 TTABVUE 23.

As to connotation and overall commercial impression, Applicant argues that the

most prominent portion of CHIEF’S CHILL OUT is CHIEF’s, and suggests a focus on

“a person–CHIEF–who owns a relaxing service” or alternatively, CHIEF, an owner

that relaxes. As to Registrant’s CHILL OUT mark, Applicant submits that the

“prominence is on the suggestive phrase, ‘chill[ing] out,’ that suggests a focus on

relaxation” because the mark “lacks any identification of a person or owner,” and also,

CHILL OUT is “suggestive of the quality of a product provided, frozen

confectionaries.” Id. at 23-24.

In this case, when we consider that Applicant’s identified services are closely

related to Registrant’s services and that the respective marks contain the identical

term CHILL-OUT/CHILL OUT, the addition of CHIEF’S in Applicant’s mark does

not eliminate the likelihood of confusion. Consumers familiar with Registrant’s

CHILL OUT mark for fast food restaurant services are likely to believe, upon

encountering Applicant’s mark CHIEF’S CHILL-OUT for providing food and

beverages via a mobile truck, that these similar services emanate from or are

associated with the Registrant, and that the Registrant has chosen to further identify

its services by the title or nickname CHIEF’S. That is, CHIEF’S simply identifies

what was formerly an anonymous source. Cf. In re Fiesta Palms LLC, 85 USPQ2d at

1364 (“When, as in this case, the common part of the marks is identical, purchasers

familiar with the registrant’s mark are likely to assume that the house mark simply

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Serial No. 87573924

identifies what had previously been an anonymous source.”); In re Hill-Behan Lumber

Company, 201 USPQ 246, 249 (TTAB 1978) (purchasers familiar with registrant’s

LUMBERJACK mark are likely to assume that the house mark HILL-BEHAN’S

combined with LUMBERJACK simply identifies what had previously been an

anonymous source.). See also In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944,

1946 (Fed. Cir. 2004) (JOSE GASPAR GOLD and GASPAR’S ALE were determined

to be similar; “[w]ith respect to JOSE, the Board correctly observed that the term

simply reinforces the impression that GASPAR is an individual’s name. Thus, in

accord with considerable case law, the JOSE term does not alter the commercial

impression of the mark.”); In re Rexel Inc., 223 USPQ 830, 832 (TTAB 1984) (LITTLE

GOLIATH for stapler kits confusingly similar to GOLIATH for large diameter

woodcased pencils.).

Accordingly, we find that when the two marks are considered as a whole, the

overall commercial impression of both marks is very similar, and that the inclusion

of CHIEF’S in Applicant’s mark merely provides additional information as to the

source of the services. The first DuPont factor of the similarity of the marks favors a

finding of likelihood of confusion.

II. Conclusion

We have considered all of the arguments and evidence of record, including those

not specifically discussed herein, and all relevant DuPont factors. When we balance

the DuPont factors, we conclude that confusion is likely to occur between Applicant’s

mark and Registrant’s mark.

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Serial No. 87573924

Decision: The refusal to register Applicant’s mark CHIEF’S CHILL-OUT is

affirmed.

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