Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 SPOONS RESTAURANTS, INC.
September 11, 1991
Hearing July 29, 1991
Opposition Nos. 79,317 and 79,319, to application Serial Nos. 73/718,933 filed March 28, 1988 and 73/719,664 filed March 30, 1988
Ernest M. Anderson of Eckhoff, Hoppe, Slick, Mitchell & Anderson and Patrick J. Kelvie of American Restaurant Group, Inc. for Spoons Restaurants, Inc.
Mark S. Graham of Luedeka, Hodges & Neely P.C. for Morrison Incorporated.
Before Seeherman, Hanak and Hohein
Opinion by Hohein
Applicant, Morrison Incorporated, has filed applications to register the marks "SILVER SPOON CAFE" [FN1] and "SILVER SPOON BAR & GRILL" [FN2] for "restaurant and bar services".
Opposer, Spoons Restaurants, Inc., has opposed registration of applicant's marks on the ground that they so resemble the following marks, which have been previously used and registered by opposer for "restaurant services," as to be likely, when applied to applicant's services, to cause confusion, mistake or deception: [FN3] (i) "SPOONS"; [FN4] (ii) "SPOONS" with cactus design, as shown below; [FN5]
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
(iii) "SPOONBERGER"; [FN6] and (iv) "SPOONS" and diamond logo design, as illustrated below. [FN7]
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
Applicant, in its answers, has admitted that "it has had knowledge of Opposer's registration for SPOONS," but has otherwise denied the salient allegations comprising the notices of opposition.
The record in these consolidated proceedings, which is inordinately large, includes the pleadings; the files of the opposed applications; various trial depositions, most with exhibits, of opposer's witnesses; [FN8] and two trial depositions, with exhibits, of applicant's witnesses. [FN9] Opposer, by notices of reliance, has made of record a certified copy of each of its pleaded registrations and various discovery depositions, with certain exhibits, which it took of applicant's officers. [FN10] Applicant, by a notice of reliance, has made of record various discovery depositions, most with exhibits, which it took of opposer's management personnel; [FN11] opposer's answers to certain of applicant's interrogatories; definitions from Webster's Third New International Dictionary (1966) of such terms as "spoon" and "silver spoon"; third-party registrations containing the words "SPOON," "SPOONS" or variants thereof; telephone directory listings showing surname significance for the term "Spoon"; and a page from New Dictionary of American Family Names showing historical meaning of "Spoon" as a surname. The parties have filed briefs and were represented at the oral hearing held at the Board.
According to the record, the mark "SPOONS" was first used in connection with restaurant services by opposer's predecessor-in-interest, Spoon's Limited Inc., in 1979 or possibly as early as 1978. Approximately two or three years later, the founder of the "SPOONS" restaurant, Gary Gross, sold the business to opposer, which was run by a man curiously known only as Chandler. Opposer acquired the "SPOONS" mark and the federal registration therefore as part of an "Asset Purchase Agreement". Chandler expanded the "SPOONS" restaurant business, which commenced in Houston, Texas, to five locations in that area by 1984. In addition, by 1984, "SPOONS" restaurants had been opened by opposer in the Midwest (two in the Chicago, Illinois area and one in Columbus, Ohio). By as early as 1985 or 1986, opposer was also operating "SPOONS" restaurants in California and had seven or eight locations there by 1987.
*2 Opposer was acquired by Saga Corporation in 1983, which in turn was acquired by Marriott Corporation in 1986. Marriott Corporation subsequently sold opposer to opposer's parent corporation, American Restaurant Group, Inc., in 1987. In the meantime, opposer had closed all of its Midwestern "SPOONS" restaurants between 1985 and 1987, due to their failure to meet its sales expectations, and also ceased operation in Houston when it sold its locations there in 1988. Currently, opposer operates its "SPOONS" restaurants exclusively in California, where it has 18 locations. Opposer regards its "SPOONS" restaurants as a growth division and has held franchise discussions, although no franchises have yet been awarded.
The concept of the "SPOONS" chain of restaurants is that of a casual, full bar, full-service establishment featuring hamburgers and "Tex-Mex" cuisine. As a relatively upscale hamburger and specialty foods restaurant chain, it has broad demographic appeal, drawing customers largely from the 25-49 age group as well as tending to favor younger people. The restaurants feature tile floors, booth-type seating, neon signage and Southwestern artifacts and pictures, the latter reflecting opposer's Houston heritage. Described by a witness for opposer as a "roadside, drop-in kind of place," "SPOONS" restaurants have been advertised by use of radio, newspaper, telephone directory, billboard and direct-mail advertising. Opposer uses its "SPOONS" marks on such promotional materials as newsletters and application forms for joining the "Dillo Club," which is for its frequent customers. Opposer also uses its "SPOONS" marks on signage, menus, table tents and stationery and has sponsored community events, such as chili and rib cookoffs, at which its booth has prominently displayed various "SPOONS" marks. Opposer's sales have more than doubled from 1985 to 1989 and its marks and restaurant services have been the subject of newspaper articles.
Applicant, in 1984, opened its first "SILVER SPOON CAFE" restaurant in Knoxville, Tennessee and currently has six locations, all in the Southeastern portion of the United States. The restaurant concept, besides including a bar, is that of a casual, cafe atmosphere featuring old-fashioned tile floors, stained wood panelling, polished brass, art deco lighting and neon accents. Some units have a bakery and market area offering the retail sale of French breads and pastries, prepared salads, cheeses, meats and pates together with gourmet grocery items packaged under the "Silver Palate" label. Seeking to broaden its customer appeal through the use of a more casual name, applicant in 1987 opened its first "SILVER SPOON BAR & GRILL" restaurant. The concept employed in connection therewith, however, was the same one as that for its "SILVER SPOON CAFE" restaurants. Although applicant subsequently has tended to move away from the use of "SILVER SPOON BAR & GRILL" due to problems use of the term "BAR & GRILL" created with Alabama liquor authorities, applicant's "SILVER SPOON" restaurants are basically aimed at an upscale market and feature casual, fun and inexpensive dining in a contemporary cafe atmosphere stressing fresh, high-quality, popular food items. While no particular age group is catered to, applicant's "SILVER SPOON" restaurants tend to be most popular with the 25-50 age group, especially with those with more sophisticated tastes.
*3 Because opposer has made of record certified copies of its pleaded registrations, priority of use is not an issue in these consolidated proceedings. King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974). In any event, the evidence establishes opposer's priority of use of its registered marks and applicant has admitted in its brief that priority is not disputed. There also is no dispute that both parties use their respective marks in connection with restaurant and bar services. The only major issue to be determined, therefore, is whether applicant's "SILVER SPOON" marks so resemble opposer's "SPOONS" marks as to be likely to cause confusion, mistake or deception.
As a preliminary matter, we sustain applicant's objections to the evidence presented by opposer concerning the mark "GOLDEN SPOON," which is used in connection with a yogurt shop operating close to one of opposer's "SPOONS" restaurants in Irvine, California. Understandably, due to the fact that the parties have been and continue to do business under their respective marks in separate geographic areas, there has been no real opportunity for any instances of actual confusion to occur. Opposer, therefore, has sought to introduce evidence relating to incidents of alleged actual confusion between its "SPOONS" marks for restaurant services and a third party's "GOLDEN SPOON" mark for a restaurant primarily or exclusively serving frozen yogurt. [FN12] In addition, opposer has attempted to introduce a survey, entitled "Spoons Restaurant Name Confusion Survey," regarding confusability of its "SPOONS" marks and the "GOLDEN SPOONS" mark. [FN13] Applicant, among other things, has objected to such evidence as irrelevant. [FN14]
We agree with applicant that the evidence presented by opposer concerning both actual and likely confusion between its "SPOONS" marks for restaurant services and a third party's use of the name "GOLDEN SPOON" for a yogurt shop is irrelevant to the issue of likelihood of confusion between opposer's marks and applicant's "SILVER SPOON" marks. [FN15] Applicant is not seeking to register marks which contain the term "GOLDEN SPOON" and such term does not have a connotation equivalent or sufficiently similar to the phrase "SILVER SPOON," which is the salient and distinguishing feature of applicant's amrks. [FN16] Moreover, an establishment which principally features frozen yogurt is manifestly different from the type of restaurants operated by applicant and opposer, which include bar services and offer a large variety of foog items on their menus. The situation involving a yogurt shop called "GOLDEN SPOON" therefore lacks relevance since it cannot validly be projected to circumstances relating to use for different restaurant services of marks dominated by the terms "SILVER SPOON" and "SPOONS". [FN17]
Opposer argues that it is a fundamental principle of trademark law that a subsequent user may not appropriate another's entire mark and avoid likelihood of confusion merely by adding descriptive or otherwise subordinate matter to it. Specifically, since three of its pleaded marks consist of or are dominated by the word "SPOONS," opposer contends that:
*4 Applicant seeks to register marks which are essentially opposer's mark[s] "Spoons" (changed to the singular) with the addition of descriptive words "Silver" and "Cafe" or "Bar & Grill." The words "Cafe" and "Bar & Grill" are descriptive words that characterize the restaurant business of both applicant and opposer; the word "Silver" is a mere adjective describing "Spoon."
We agree with applicant, however, that the salient and distinguishing feature of its marks is the unitary phrase "SILVER SPOON" which, in light of its previously noted dictionary meanings of inherited wealth and prosperity, is suggestive of the quality, refinement and sophistication of applicant's restaurants. While applicant contends that opposer's marks have a far different connotation in that the word "SPOONS" refers, in its singular form, to an eating utensil and also has surname significance, [FN18] we believe that as applied to restaurant services, the only plausible meaning thereof is a type of implement for eating or cooking and thus the term is suggestive of opposer's services. Consequently, although there are differences in the notions suggested by the parties' marks, we nevertheless observe that such marks look and sound appreciably alike and, therefore, could create a likelihood of confusion in spite of differing connotations, especially when due consideration is given to the strength of opposer's marks, the manner in which the parties have advertised their services and the fallibility of customer memory.
Applicant has made of record numerous third-party registrations containing the words "SPOON," "SPOONS" or variations thereof. Third-party registrations, of course, may be used to indicate that a commonly registered element has a suggestive meaning for particular goods or services such that differences in other portions of the marks may be sufficient to render the marks as a whole distinguishable. See, e.g., Tektronix, Inc. v. Daktronics, Inc., 187 USPQ 588, 592 (TTAB 1975), aff'd, 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976). In the present case, however, there are two principal deficiencies with such evidence. First, it is well settled that third-party registrations are not evidence that the registered marks are in use. [FN19] Second, and perhaps of greater importance, only one of the approximately 70 third-party registrations is for restaurant services and the mark, "SPOONER'S pizzeria" and design, with its apparent surname significance, is markedly different in connotation, sound, appearance and overall commercial impression from that of any other of the parties' marks. We accordingly think that applicant's addition of the word "SILVER" to the term "SPOON" is insufficient to adequately distinguish the parties' marks, notwithstanding the impression of refinement, sophistication and high quality conveyed by the unitary phrase "SILVER SPOON". In addition, we believe that opposer's "SPOONS" marks must be considered to be entitled to more than a narrow scope of protection in the field of restaurant services inasmuch as the only third-party use demonstrated on this record, namely, that for the mark "GOLDEN SPOON," is for a food establishment more akin to an ice cream parlor than the restaurant operations run by the parties under their respective marks.
*5 We also note that applicant, in conjunction with the promotion of its "SILVER SPOON" marks, has on occasion referred to itself as "THE SPOON" by using such term in newspaper advertising. The advertisements prominently display the captions "Eat Your Turkey With the Spoon" and "Eat Your Turkey With The Spoon," respectively followed by the phrases "Enjoy Thanksgiving Dinner at the Silver Spoon Cafe" and "ENJOY THANKSGIVING DINNER AT THE SILVER SPOON BAR & GRILL". While the ads were seasonal in nature in that they appeared in 1986 and 1987 only in the month of November and have since been discontinued, they nevertheless are some evidence that customers, with their propensity for shortening names with which they have become familiar, would refer to or think of applicant as "THE SPOON" and therefore, if they were to encounter opposer's "SPOONS" marks, would be more likely to mistakenly assume a common source or sponsorship for the parties' restaurant services. [FN20]
Opposer, too, has advertised its marks. During 1987 and 1988, some of its direct-mail advertising featured two characters, colloquially known as "Tex" and "Mex," respectively dressed in desperato and bandito garb and having a metallic spoon hanging on each of their noses. [FN21] Because the advertising is in full color, the spoons could be perceived as silver spoons, although not promoted as such. While opposer subsequently phased out its use of the characters, the memorable advertisements, with their strikingly unusual displays of a shiny spoon dangling from each character's nose, achieved a degree of recognition in newspapers and trade publications and are some evidence that customers familiar therewith would have a tendency to ascribe a commonality of origin or affiliation to the parties' restaurant services upon seeing or hearing applicant's "SILVER SPOON" marks.
Another factor bearing upon our decision is the fallibility of human memory, given the lack of an opportunity for patrons of the parties' restaurants to make a direct comparison between the marks. A side-by-side comparison, of course, is not the proper test to be used in determining the issue of likelihood of confusion since such a comparison is not the ordinary way that a prospective customer would be exposed to the marks. Instead, it is the similarity of the general overall commercial impression engendered by the marks which must determine, due to the fallibility of memory and the consequent lack of perfect recall, whether confusion as to source or sponsorship is likely. The proper emphasis is thus on the recollection of the average customer, who normally retains a general rather than a specific impression of trademarks or service marks. See, e.g., Envirotech Corp. v. Solaron Corp., 211 USPQ 724, 733 (TTAB 1981); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975); and Grandpa Pidgeon's of Missouri, Inc. v. Borgsmiller, 477 F.2d 586, 177 USPQ 573, 574 (CCPA 1973).
*6 While, in the present case, the term "SILVER SPOON" has a connotation of refinement and prestige, it also has its literal meaning as a kind of spoon. Since the notion of a type of eating utensil is shared with the impression of such implements created by opposer's use of the term "SPOONS," and inasmuch as the parties' marks are similar in sound and appearance, we believe that due regard for the fallibility of human memory and the propensity to recollect only the general aspects of marks necessitates a finding that applicant's and opposer's marks are confusingly similar when applied to identical services.
In this regard, we further note that the restaurant services rendered by each of the parties in this case are relatively inexpensive. Persons, therefore, would not be expected to exercise as great a degree of care in their selection as they would in the case of other, more expensive services. We thus believe that on balance, and especially in light of the absence of any evidence of third-party use of similar marks for the same type of restaurant services, applicant's "SILVER SPOON" marks so resemble opposer's "SPOONS" marks that confusion of customers as to source or sponsorship would be likely to occur. Patrons of opposer's restaurants, upon encountering either applicant's "SILVER SPOON CAFE" or its "SILVER SPOON BAR & GRILL" restaurants, could reasonably believe that such establishments are another upscale, high-quality, full service operation run by the same organization which also operates the "SPOONS" chain with which they are familiar and vice versa.
Finally, as admitted in its answers, we observe that at the time of its adoption and use of its marks, applicant had knowledge of opposer's "SPOONS" mark. Applicant's president, Mr. Beall, testified in particular that he first heard of the name "SPOONS" in connection with opposer's restaurant business in the fall of 1983 while looking for sites for applicant's "Ruby Tuesday" restaurants in Houston, Texas. Notwithstanding such knowledge, applicant subsequently adopted and commenced use of the mark "SILVER SPOON CAFE". Such use came to the attention of Saga Corporation, which then owned opposer, in early 1985 and prompted an exchange of correspondence between its senior counsel, Mr. Kelvie, and applicant's chairman and chief executive officer, Mr. Bishop, and counsel for applicant. Despite having been warned that opposer considered applicant's use of the name "SILVER SPOON" to be an infringement and that opposer might seek to enforce its rights if, among other things, applicant sought to register the name, applicant continued its use of the mark.
After Saga Corporation had been acquired by Marriott Corporation, Mr. Bishop wrote to the latter in April 1987 seeking permission to use the name "SPOONS". Mr. Bishop was informed that Marriott Corporation had sold opposer to its present parent, American Restaurant Group, Inc. Mr. Bishop, on April 27, 1987, then wrote a letter to opposer's parent in which he requested that "if you have no use for the name SPOONS, we would appreciate your considering Morrison using this name". The chairman and chief executive officer of opposer's parent replied by letter on June 1, 1987 expressing surprise that Mr. Bishop thought that the "SPOONS" concept had been discontinued; indicating that it was still in use; asserting that the issue of infringement had not been resolved; and stating that "I regret that I can offer no solution to you other than that you change the name of your Silver Spoon units while you have the opportunity to do so in a thoughtful and orderly fashion". Thereafter, in September, 1987, applicant began using its "SILVER SPOON BAR & GRILL" mark for restaurant services while continuing to use its "SILVER SPOON CAFE" mark for such services.
*7 Applicant, in its brief, argues that Mr. Bishop, as a prudent businessman, sought permission to use the "SPOONS" mark since "he would not want that mark to get into someone else's hands so that they could pursue a nuisance action against his company". Nevertheless, we note that a party which knowingly adopts a mark similar to one used by another for the same or closely related goods or services does so at its peril and any doubt on the question of likelihood of confusion must be resolved against the junior user. See, e.g., First International Services Corp. v. Chuckles Inc., 5 USPQ2d 1628, 1633 (TTAB 1988) and Roger & Gallet S.A. v. Venice Trading Co. Inc., 1 USPQ2d 1829, 1832 (TTAB 1987).
Decision: The oppositions are sustained and, in each case, registration to applicant is refused.
Members, Trademark Trial and Appeal Board
FN2. Ser. No. 73/719,664, filed on March 30, 1988, which alleges dates of first use of September 27, 1987. The term "BAR & GRILL" is disclaimed.
FN3. With respect to each term which applicant seeks to register, opposer also claims, on information and belief, that applicant did not use such term "on or in connection with its services in the ordinary course of its business in interstate commerce and/or in a service mark manner adequate to support registration of said term as required in 15 USC §§ 1051 and 1127 prior to the filing date of its application". However, since such claims have not been pursued at trial or discussed in the briefs, no further consideration will be given thereto.
FN4. Reg. No. 1,199,137, issued on June 22, 1982, which sets forth dates of first use of August 21, 1979; combined affidavit §§ 8 and 15.
FN5. Reg. No. 1,288,423, issued on July 31, 1984, which sets forth dates of first use of May 1, 1982. Although there is no indication that a § 8 affidavit, which was due by July 31, 1990, has been filed, opposer may, of course, still rely upon its common law rights in the mark which is the subject of this registration.
FN6. Reg. No. 1,329,028, issued on April 2, 1985, which sets forth dates of first use of August 21, 1979; combined affidavit §§ 8 and 15.
FN7. Reg. No. 1,363,818, issued on October 1, 1985, which sets forth dates of first use of June 29, 1984. The words "RIBS," "BURGERS," "TACOS," "GRILL" and "BAR" are disclaimed.
FN8. Testifying as part of opposer's case-in-chief were its president, Richard M. Fisher; its director of marketing, Michael C. Branigan; one of its district managers, John M. Taper; one of its general managers, Thomas R. Watson; an employee of Hoag Hospital, Brice Bettinghausen; and an employee of The Browning Group, Robert B. Hessler. Testifying in rebuttal were an employee of QED Research, Steven Spero; and the owner of Davis Market Research Services, Inc., Carol Davis.
FN9. Testifying on applicant's behalf were one of its vice presidents, Mark S. Ingram; and the chief executive officer of Kenneth A. Hollander & Associates, Kenneth A. Hollander.
FN10. Opposer, as permitted by Trademark Rule 2.120(j)(1), relies upon its discovery depositions of applicant's chairman of the board and chief executive officer, Ernest E. Bishop; applicant's president and chief operating officer, Samuel E. Beall; and one of applicant's senior vice presidents, Robert D. McClenagen.
FN11. In accordance with Trademark Rule 2.120(j)(1), applicant relies upon its discovery depositions of opposer's then vice president of operations, Richard M. Fisher; opposer's director of marketing, Michael C. Branigan; and one of opposer's district managers, John M. Taper. Applicant also relies upon its discovery deposition of Patrick J. Kelvie, who is the general counsel and secretary of opposer's parent corporation, American Restaurant Group, Inc. Although such is not admissible pursuant to Trademark Rule 2.120(j)(1) since Mr. Kelvie does not appear to be an officer, director or managing agent of opposer, no objection thereto has been raised by opposer. Accordingly, the discovery deposition of Mr. Kelvie is considered to have been stipulated into the record pursuant to Trademark Rules 2.123(b) and 2.120(j)(2).
FN12. In their depositions, Messrs. Branigan, Taper and Fisher testified that they were aware of a person who, in allegedly responding to a "SPOONS" restaurant help-wanted ad, went to the "GOLDEN SPOON" yogurt shop to apply for the job. Mr. Branigan also testified that, while dining with his mother and a guest who was her friend, the guest indicated that he and Mr. Branigan's mother had recently been to a "SPOONS" restaurant in Irvine when, in fact, they had gone to a "GOLDEN SPOON" yogurt shop, as the guest, after Mr. Branigan's mother stated her disagreement with her friend's initial statement, quickly recalled and so corrected himself. In addition, Mr. Branigan testified that on one occasion he went to the "GOLDEN SPOON" yogurt shop, which is close to the "SPOONS" restaurant in Irvine; that he asked an employee of the yogurt shop if anyone had ever walked into the restaurant before and asked: "Is this Spoons?"; and that the employee replied that a week ago a lady had walked in and so inquired. Furthermore, Mr. Branigan testified, as did Mr. Watson in his deposition, that the "SPOONS" restaurant in Irvine had on three occasions mistakenly received deliveries of paper items intended for the nearby "GOLDEN SPOON" yogurt shop due to confusion by the truck drivers making the deliveries. Mr. Watson also testified that the Irvine "SPOONS" restaurant has twice received mail for the "GOLDEN SPOON" yogurt shop and that he had his bookkeeper take the misdirected mail over to them. Finally, Messrs. Bettinghausen and Fisher, in their depositions, related how Mr. Bettinghausen, who is the son of the woman who cuts Mr. Fisher's hair, received a gift certificate that Mr. Fisher had given Mr. Bettinghausen's mother while she gave Mr. Fisher a haircut and mistakenly assumed that the certificate was for use at a "GOLDEN SPOON" yogurt shop even though the certificate prominently displayed the "SPOONS" diamond logo design at the top and on the back; invited the bearer to "BE MY GUEST FOR LUNCH OR DINNER AT SPOONS"; and further stated that: "This card entitles you to food and beverage up to $10.00 in value at any Spoons location."
FN13. Mr. Hessler, in his deposition, testified that he was responsible for preparing and conducting the survey, which was done at Mr. Branigan's request. In order to gather responses to the questionnaires he developed, Mr. Hessler employed Davis Market Research Services, Inc. to conduct personal interviews for the mall intercept portion of the survey and utilized QED Research to do the telephone interviews required by the survey and to tabulate the data obtained from both sets of interviews.
FN14. Applicant also objected, on the basis of hearsay, to the testimony relating to most of the incidents of actual confusion and offered the testimony of its expert witness, Mr. Hollander, who testified to methodological flaws which, in his opinion, rendered opposer's survey invalid and hence of no probative value.
FN16. The definitions furnished by applicant from Webster's Third New International Dictionary (1966) show that "golden spoon" is defined at 312 as a noun meaning "a usu. shrubby tropical American tree ... that is sometimes cultivated for its sweet edible yellow fruits; broadly: ... NANCE"; "silver spoon" is defined at 2120 as a noun meaning "WEALTH; esp: inherited wealth < whether ... endowed with a silver spoon or burdened with poverty ...> <born with a silver spoon in his mouth> <social grace is acquired more easily by those who grow up with silver spoons in their mouths ...>"; "silver-spoon" is defined at 2120 as an adjective meaning "having a prosperous background: of a well-to-do family environment <you might from a hint of courtliness ... think he's a silver-spoon man ...>"; and "spoon" is defined at 2205 as, inter alia, a noun meaning "a usu. metal, plastic, or wooden eating or cooking implement consisting of a small oval or round shallow bowl and a handle--often used in combination <maker> <baby > <jelly > <teaspoon>" and a verb meaning "to take up and usu. transfer in a spoon <they their consomme ...> ... <sat placidly ing up yogurt ...>".
FN17. In any event, even if we did not sustain applicant's objections, such evidence would not be probative of a finding of likelihood of confusion as to the source or sponsorship of the parties' restaurant services. At best, the instances of actual confusion involve, in one case, a simple memory lapse during conversation and, in the others, carelessness or inattentiveness. The mistakes appear to have been quickly and/or inexpensively resolved and, in light of the volume of customer and other business transactions that occur at a given restaurant location, are inconsequential, insignificant and of no legal consequence. See, e.g., Amica Mutual Insurance Co. v. R.H. Cosmetics Corp., 204 USPQ 155, 165-66 (TTAB 1979) and cases cited therein.
As to opposer's survey, we note that, among the key findings resulting from the interviewing of 202 persons during the period from April 23 to April 25, 1990, 20% of the respondents expressed a belief that there would be confusion of some sort "between food establishments that use the names Spoons and Golden Spoon" and, of the 23% of the respondents who knew of any food establishments with the name "Spoons," 30% said that the "other establishment" the name reminded them of was "Golden Spoon," while 23% named one of opposer's principal competitors, "Chili's," which employs a restaurant concept that is very similar to opposer's. These results, among others, simply fail to sway us one way or the other and our decision on the issue of likelihood of confusion between the parties' marks would be the same irrespective of whatever probative value, if any, the survey can be said to have.
FN18. The telephone directory listings submitted by applicant, along with the excerpt from the New Dictionary of American Family Surnames, establish that "Spoon" is a surname. It appears, however, to be a relatively rare surname, particularly in comparison to the far more numerous listings for the surname "Spooner". At any rate, whatever meaning the term "Spoon" may have as a surname does not weaken or otherwise detract from its service mark significance when used as the dominant portion of opposer's "SPOONS" marks.
Applicant also urges that "[a]nother connotation of Opposer's SPOONS marks is that of a Tex-Mex restaurant concept". We find nothing, however, in the testimony and exhibits pointed to by applicant in its brief to substantiate that the term "SPOONS" generally connotes to the public any type of "Tex-Mex" or Mexican restaurant concept; rather, the term functions as a service mark for opposer's restaurant services. Moreover, the fact that such services feature a Southwestern theme in their signage, menu and ambiance does not aid applicant's case since, in light of the lack of any specific limitations in either the pleaded registrations or the involved applications, the parties' restaurant services must be considered to be identical. See, e.g., CBS v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed.Cir.1986); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed.Cir.1983); and Paula Payne Products Co. v. Johnson Publishing Co., Inc., 437 F.2d 901, 177 USPQ 76, 77 (CCPA 1973). In any event, and as previously indicated above, both parties' restaurants cater to the same demographic group and are casual, full-service, upscale establishments.
FN19. As stated in AMF Inc. v. American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973), "little weight is to be given such registrations in evaluating whether there is likelihood of confusion. The existence of these registrations is not evidence of what happens in the market place or that customers are familiar with them nor should the existence on the register of confusingly similar marks aid an applicant to register another likely to cause confusion, mistake or to deceive."
FN20. Applicant has also played upon the spoon idea with newspaper ads in late 1984 and early 1986 which are respectively headlined: "Silver Spoon Creates a Stir" and "How to Stir Up Some Fun for Dinner". Other advertisements appearing in newspapers during 1986 included such phrases as: "So stir up some fun for lunch or dinner at the Silver Spoon" and "So stir up some fun for lunch or dinner at the Silver Spoon and corner the market on salad platters that make the meal".
FN21. Representative portraits are reproduced below: