This Opinion is not a
Precedent of the TTAB

Mailed: January 26, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Rolling Fatties LLC
v.
Rollin Fatties, LLC
_____

Opposition No. 91224847
_____

Morris E. Turek, of YourTrademarkAttorney.com,
for Rolling Fatties LLC

Trevor Young, of Rollin Fatties, LLC,
pro se.

_____

Before Cataldo, Ritchie and Heasley,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:

Rollin Fatties, LLC, a Louisiana limited liability company (“Applicant”) seeks

registration on the Principal Register of the mark ROLLIN’ FATTIES (in standard

characters) for “providing of food and drink via a mobile truck; restaurant services”

in International Class 43.1 Registration has been opposed by Rolling Fatties, LLC

1Application Serial No. 86410681was filed on September 30, 2014 based upon Applicant’s
claim of first use anywhere as of February 3, 2013 and use in commerce since at least as early
as October 31, 2013.
Opposition No. 91224847

(“Opposer”), a Maine limited liability company that claims that Applicant’s mark so

resembles its prior common law mark ROLLING FATTIES for the provisioning of

food and drink via a mobile truck as to be likely to cause confusion, to cause mistake,

or to deceive prospective purchasers of the parties’ services.2 15 U.S.C. §§ 1052(d),

1053. In its Answer, Applicant admitted that it filed the subject Application on

September 30, 2014 for its identified services, but otherwise denied the salient

allegations of likelihood of confusion.3

I. Standing

“Any person who believes that he would be damaged by the registration of a mark

upon the principal register…may, upon payment of the prescribed fee, file an

opposition in the Patent and Trademark Office, stating the grounds therefor….” 15

U.S.C. § 1063. In order to meet the standing requirement under the statute, an

opposer need only show that it has a real interest, i.e., a direct and personal stake, in

the outcome of the proceeding and a reasonable basis for its belief that it will be

damaged. See Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-28 (Fed. Cir.

1999). A belief in likely damage can be shown by establishing a direct commercial

interest. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed.

Cir. 2000). In this case, Opposer has established that it has a commercial interest in

using ROLLING FATTIES to provide food and beverage services via a mobile food

2 Opposer’s Notice of Opposition, 1 TTABVUE.
3 Applicant’s Answer ¶ 7, 4 TTABVUE 4. Applicant also pleaded several “affirmative
defenses,” which were not pursued at trial, and are therefore waived. Alcatraz Media, Inc. v.
Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1753 (TTAB 2013) aff’d 565 F. Appx. 900
(Fed. Cir. 2014); TBMP § 801.01 (June 2017).

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Opposition No. 91224847

truck. As discussed below, Opposer is a competitor, and thus has standing to oppose

registration of Applicant’s mark. See Empresa Cubana Del Tabaco v. Gen. Cigar Co.,

753 F.3d 1270, 111 USPQ2d 1058, 1061-62 (Fed. Cir. 2014) (Cuban cigar

manufacturer had standing to seek cancellation of competitor’s trademark

registrations); Miller v. Miller, 105 USPQ2d 1615, 1618 (TTAB 2013) (competing law

firm had standing to oppose competitor’s application); Giersch v. Scripps Networks

Inc., 90 USPQ2d 1020, 1022 (TTAB 2009) (prior common law rights in confusingly

similar mark establish standing).

II. The Record

The record includes the pleadings, Applicant’s application file,4 and the

testimonial deposition, with exhibits, of Polly A. MacMichael, who, with her husband,

Rob MacMichael, founded and own Opposer.5 Applicant has not introduced any

evidence, nor has it filed a brief.

III. Likelihood of Confusion

A. Priority

“In an opposition founded on section 2(d), the opposer must establish its own prior

proprietary rights in the same or a confusingly similar designation in order to defeat

the application.” T.A.B. Sys. v. Pactel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879, 1881

(Fed. Cir. 1996). Section 2(d) challenges may be based either on ownership of a

registered mark (which is not implicated here) or prior use of an identical or similar

4 Trademark Rule 2.122(b), 37 CFR § 2.122(b).
5 Testimonial Deposition of Polly A. MacMichael p. 6:4-9, 15 TTABVUE 7.

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mark. Wonderbread 5 v. Gilles, 115 USPQ2d 1296, 1302 n.8 (TTAB 2015); see also

Herbko Int’l., Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed.

Cir. 2002), cited in Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1658 (TTAB

2014).

Because Opposer has not pleaded ownership of any registrations, it must rely on

its common law use to establish priority. Id.; Giersch v. Scripps, 90 USPQ2d at 1023.

“[T]o the extent opposer wishes to rely on its common law rights, it must establish

priority with respect to such rights. That is, opposer must prove by a preponderance

of the evidence that its common law rights were acquired before any date upon which

applicant may rely.” Embarcadero Techs., Inc. v. RStudio, Inc., 105 USPQ2d 1825,

1834 (TTAB 2013) (citing Hydro-Dynamics Inc. v. George Putnam & Co. Inc., 811 F.2d

1470, 1 USPQ2d 1772, 1773 (Fed. Cir. 1987) (The “decision as to priority is made in

accordance with the preponderance of the evidence”)).

Because Applicant has not introduced any evidence of its use of ROLLIN’

FATTIES, it cannot rely upon the dates of first use alleged in its Application.

Trademark Rule 2.122(b)(2) (“The allegation in an application for registration, or in

a registration, of a date of use is not evidence on behalf of the applicant or registrant;

a date of use of a mark must be established by competent evidence.”), quoted in

Central Garden & Pet Co. v. Doskocil Mfg. Co., Inc., 108 USPQ2d 1134, 1139 (TTAB

2013). The earliest date on which Applicant may rely for priority purposes is its filing

date of September 30, 2014,6 which is its constructive use date. Swiss Grill Ltd. v.

6 Applicant’s Answer ¶ 7, 4 TTABVUE 4.

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Opposition No. 91224847

Wolf Steel Ltd., 115 USPQ2d 2001, 2011 (TTAB 2015). It is thus Opposer’s burden to

demonstrate that it owns a service mark that it used prior to Applicant’s constructive

use date. Exec. Coach Builders, Inc. v. SPV Coach Co., 123 USPQ2d 1175, 1180 (TTAB

2017) (citing Otto Roth & Co., Inc. v. Univ. Foods Corp., 640 F.2d 1317, 209 USPQ 40,

43 (CCPA 1981).

Oral testimony, if sufficiently probative, is normally satisfactory to establish

priority of use in a trademark proceeding. Daniel J. Quirk, Inc. v. Village Car Co.,

120 USPQ2d 1146, 1151 (TTAB 2016) (quoting Powermatics, Inc. v. Globe Roofing

Prods. Co., 341 F.2d 127, 144 USPQ 430, 432 (CCPA 1965)). The testimony of a single

witness with personal knowledge of the facts may be sufficient to prove first use if it

is clear, convincing, consistent, uncontradicted, and sufficiently circumstantial to

convince the Board of its probative value. See Bass Pro Trademarks, LLC v.

Sportsman’s Warehouse, Inc., 89 USPQ2d 1844, 1856 (TTAB 2008). Ms. MacMichael

is such a witness. Asked to describe her responsibilities with Opposer, she answered:

A. Like what I do? Prep cook, cook, serve and
bar-tend. I wash dishes, clean. I do all the
bookkeeping, marketing, advertising. Rob and I do the
renovating for the building, the landscaping.
We both drive for the business. I schedule
employees, handle all the communication, payroll, booking
events, inventory, training employees, customer service,
ordering food and beverages. I take care of all the
blogging for our website, our social media presence. I
update and maintain our website, pay our taxes, do all our
business filings, and we both control our business
development.7

7 MacMichael dep. pp. 6:18-7:4, 15 TTABVUE 7-8.

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Opposition No. 91224847

“I’m familiar with all of the operations of Rolling Fatties,” she concluded.8

According to Ms. MacMichael’s testimony, Opposer has provided food truck

services, serving food and beverages, under the ROLLING FATTIES mark since

October 11, 2013, when Opposer opened for business.9 Opposer’s Facebook page

showed its food truck, displaying its mark:

10

Opposer’s website displaying the mark was also active and publicly accessible on

October 11, 2013.11 A flyer accompanying its opening also displayed the ROLLING

FATTIES logo at that time:

8 MacMichael dep. p. 7:8-9, 15 TTABVUE 8.
9 MacMichael dep. pp. 10: 4-24, 12:14-18, 22:6-7, 15 TTABVUE 11, 13, 23.
10 MacMichael dep. pp. 24:18-25:18, 15 TTABVUE 25-26, 92.
11 MacMichael dep. p. 18:7-9, 15 TTABVUE 19.

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Opposition No. 91224847

12

“We put this flyer up all over town at businesses,” Ms. MacMichael testified. “We

also posted it in the window of our food truck. I posted it on-line and on our website.”13

From their rolling food truck, they serve Maine-made beverages and hand-made

“big fat burritos,” which Ms. MacMichael and her husband call “FATTIES” ?hence

the ROLLING FATTIES mark, which is suggestive of their services.14 A local

newspaper covered their opening under the headline “Rolling Fatties ~ burritos on

the go.”15 On its opening day, October 11, 2013, Opposer made sales of food and

beverages.16 A receipt and a sales summary were made of record, evidencing

Opposer’s sales of food and drink under its mark, commencing on that day.17

Opposer’s business primarily operates within the state of Maine, although they have

travelled as far as Vermont.18 Since commencing use, Opposer’s business has

continued to display the mark ROLLING FATTIES, on flyers, for example:

12 MacMichael dep. pp. 23:4-11, 24:11-16, 15 TTABVUE 24-25, 90.
13 Id. at 23:14-16, 15 TTABVUE 24.
14 MacMichael dep. pp. 9:6-25, 11:11-23, 15 TTABVUE 10, 12.
15 MacMichael dep. pp. 33:3-34:25, 15 TTABVUE 34-35, 106.
16 MacMichael dep. p. 24:5-10, 15 TTABVUE 25.
17 MacMichael dep. pp. 36:11-39:1, 15 TTABVUE 37-40, 110, 112-113.
18 MacMichael dep. p. 12:19-21, 15 TTABVUE 13.

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Opposition No. 91224847

19

The public has never known or referred to Opposer’s business by any name other than

ROLLING FATTIES, Ms. MacMichael testified.20

On the basis of Ms. MacMichael’s testimony and the exhibits, we find that Opposer

has established priority in the mark ROLLING FATTIES for providing food and drink

via a mobile truck. Her testimony is based on personal knowledge, is internally

consistent, and is corroborated by documentary evidence. See Kohler Co. v. Baldwin

Hardware Corp., 82 USPQ2d 1100, 1108 (TTAB 2007). Opposer’s testimony is thus

clear and credible: its use commenced as early as October 11, 2013. It was

unnecessary for Opposer to differentiate between services provided to in-state and

out-of-state clients, as either would establish priority?even wholly intrastate

services. See Quirk v. Village Car, 120 USPQ2d at 1150 n. 19 (“We note that a party

may rely on use that is strictly intrastate to claim priority in a Board proceeding.”)

(citing First Niagara Ins. Brokers Inc. v. First Niagara Fin. Grp. Inc., 476 F.3d 867,

81 USPQ2d 1375 (Fed. Cir. 2007)).

Opposer’s testimony is uncontradicted by Applicant. See Quirk v. Village Car, 120

USPQ2d at 1150 n. 20 (petitioner introduced no evidence to cast doubt on accuracy of

respondent’s evidence of prior use). Applicant’s constructive use date of September

19 MacMichael dep. pp. 53:8-54:21, 15 TTABVUE 54-55, 135.
20 MacMichael dep. pp. 11:24-12:2, 15 TTABVUE 12-13.

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Opposition No. 91224847

30, 2014 falls almost a year after Opposer’s proven prior use, commencing on October

11, 2013. Hence, Opposer has established priority.

B. The DuPont Factors

We base our determination of likelihood of confusion under Section 2(d) on an

analysis of all of the probative facts in evidence that are relevant to the factors

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

567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Ind., Inc., 575

U.S. __, 135 S.Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic

Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In the course

of applying the DuPont factors, we bear in mind the fundamental purposes

underlying Section 2(d), which are to prevent consumer confusion as to commercial

sources and relationships, and to protect mark owners from damage caused by

registration of confusingly similar marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc.,

469 U.S. 189, 224 USPQ 327, 331 (1985); Qualitex Co. v. Jacobson Prods. Co., 514

U.S. 159, 34 USPQ2d 1161, 1163 (1995); DuPont, 177 USPQ at 566.

We have considered each DuPont factor that is relevant, and have treated any

other factors as neutral. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378,

78 USPQ2d 1944, 1947 (Fed. Cir. 2006); 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.”). Varying weights may be assigned to each DuPont factor depending on the

evidence presented. See Citigroup Inc. v. Capital City Bank Group Inc., 637 F.3d

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Opposition No. 91224847

1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26

USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more

or less weighty roles in any particular determination”). Two key considerations are

the similarities between the marks and the similarities between the goods and/or

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

USPQ 24, 29 (CCPA 1976); Primrose Retirement Communities, LLC v. Edward Rose

Senior Living, LLC, 122 USPQ2d 1030, 1032 (TTAB 2016).

1. Similarity of the Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of

Applicant’s and Opposer’s marks as compared in their entireties, taking into account

their appearance, sound, connotation and commercial impression. DuPont, 177 USPQ

at 567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110

USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imps., Inc. v. Veuve Clicquot

Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.

2005).

Opposer contends that the parties’ marks, ROLLING FATTIES and ROLLIN’

FATTIES, are virtually identical.21 We agree. The only difference between the two

word marks is Applicant’s substitution of an apostrophe for the “G” in ROLLING.

Substituting an apostrophe for a letter effects only a slight difference in marks’

appearance and sound, and does not tend to avert a likelihood of confusion. See, e.g.,

Park ‘N Fly v. Dollar Park and Fly, 224 USPQ at 329 (District court found “Park and

21 Opposer’s brief p. 9, 18 TTABVUE 10.

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Opposition No. 91224847

Fly” confusingly similar to “Park ‘N Fly”); In re Strathmore Products, Inc., 171 USPQ

766, 767 (TTAB 1971) (GLISTEN confusingly similar to GLISS’N) cited in 4

MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:23 (5th ed. 2018). To the

extent any minor difference in pronunciation exists, consumers who hear the parties’

marks spoken by others are not likely to even notice the difference. In re Viterra Inc.,

671 F.3d 1358, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012). Slight differences in the

sound of similar marks do not avoid a likelihood of confusion. In re Energy Telecomms.

& Elec. Ass’n, 222 USPQ 350, 352 (TTAB 1983). Moreover, the slight difference would

have no effect on the marks’ connotation and commercial impression, which are

identical.

In sight, sound, connotation, and commercial impression, the parties’ respective

marks, taken in their entireties, are virtually identical. Thus, the first DuPont factor

weighs heavily in favor of finding a likelihood of confusion.

2. Similarity and Relatedness of the Services

Under the second DuPont factor, we consider the degree to which the parties’

identified services are related. DuPont, 177 USPQ at 567. “This factor considers

whether ‘the consuming public may perceive [the respective goods and services of the

parties] as related enough to cause confusion about the source or origin of the goods

and services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed.

Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62

USPQ2d 1001, 1004 (Fed. Cir. 2002)).

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Opposition No. 91224847

It is apparent that the parties’ services are identical in part. The Application

recites “Providing of food and drink via a mobile truck; restaurant services.”

According to Opposer’s witness, it serves both food and drink from its mobile food

truck: “[W]e serve primarily locally-sourced food that we prepare. We hand-make

all of our tortillas. We also serve Maine-made beverages….”22 When asked how

Applicant’s services compared to Opposer’s, she answered “They are the same

services.”23 This identity of food truck services, standing alone, militates in favor of

finding a likelihood of confusion as to all of Applicant’s services in International Class

43. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Group, 648 F.2d 1335, 209 USPQ 986,

988 (CCPA 1981) (A likelihood of confusion may be found with respect to a particular

class based on any item within the identification of goods or services for that class);

In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409 (TTAB 2015), aff’d 866 F.3d 1315,

123 USPQ2d 1744 (Fed. Cir. 2016).

In addition, though, we find that Applicant’s identified restaurant services are

related to Opposer’s services. “[I]t is sufficient for such purposes if the services are

related in some manner or if the circumstances surrounding marketing of these

services are such that they could give rise to the mistaken belief that they originate

from or are in some way associated with the same source.” In re USA Warriors Ice

Hockey Program, Inc., 122 USPQ2d 1790, 1795 (TTAB 2017). In this case, consumers

could easily be led to infer that restaurant and food truck services bearing virtually

22 MacMichael dep. p. 9:8-10, 15 TTABVUE 10.
23 MacMichael dep. p. 15:7, 15 TTABVUE 16.

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Opposition No. 91224847

identical marks emanate from the same source. Both purvey food and drink?one from

a brick-and-mortar site, the other from a mobile source?and a single entity could

easily offer its wares by both means. Indeed, Opposer’s owners, a husband-and-wife

team, entered the food truck business first because it was less expensive than

operating a restaurant; less than two years later, once they had established their food

truck business under the ROLLING FATTIES mark, they opened a restaurant under

the same mark.24

“Where, as in this case, the applicant’s mark is virtually identical to the

[opposer’s] mark, there need only be a viable relationship between the goods [or

services] to find that there is a likelihood of confusion. See In re Shell Oil Co., 992

F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (‘even when the goods or services

are not competitive or intrinsically related, the use of identical marks can lead to the

assumption that there is a common source’)….” In re Thor Tech, Inc., 90 USPQ2d

1634, 1636 (TTAB 2009). Here, the parties’ services, offered under virtually identical

marks, are identical in part and otherwise closely related.

Accordingly, the second DuPont factor also weighs heavily in favor of finding a

likelihood of confusion.

3. Channels of Trade and Classes of Customers

Under the third DuPont factor, we consider the similarity or dissimilarity of

Applicant’s and Opposer’s established, likely-to-continue channels of trade, and the

classes of customers to whom their services are offered. DuPont, 177 USPQ at 567.

24 MacMichael dep. pp. 9:7-14, 10:4-8, 11:2-17, 12:11-13, 47:8, 15 TTABVUE 10-13, 48.

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Opposition No. 91224847

Because the parties’ services are legally identical in part, with no limitations in

the Application, they are presumed to travel in the same channels of trade, via food

trucks, as testified by Ms. MacMichaels and as identified in the application, to the

same classes of consumers, ordinary consumers of food and drink. See In re Viterra

Inc., 101 USPQ2d at 1908 (Fed. Cir. 2012) (citing Hewlett-Packard, 62 USPQ2d at

1005); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d

1030, 1033 (TTAB 2016); American Lebanese Syrian Associated Charities Inc. v. Child

Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011). Opposer offers

“family friendly” services to what it calls “hungry people,”25 the same sort of

customers to whom Applicant would offer its services.

Hence, the channels of trade through which the parties’ services would be offered,

and the classes of customers to whom they would be offered, weigh in favor of finding

a likelihood of confusion under the third DuPont factor.

IV. Conclusion

Taking the record evidence as a whole, including the portions of the record

evidence we have not expressly mentioned or discussed, we find that the parties’

marks are highly similar, and that they offer identical services in part, via the same

channels of trade to the same classes of consumers. All in all, we find by a

preponderance of the evidence that Applicant’s mark is likely to cause confusion with

Opposer’s pleaded mark.

25 Opposer’s brief p. 12, 18 TTABVUE 13, MacMichael dep. p. 15:8-14.

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Decision: The opposition to registration of Applicant’s mark ROLLIN’ FATTIES

is sustained, and registration to Application No. 86410681 is refused.

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